# Wang v. Zymergen Inc. > District Court, N.D. California · December 18, 2024 URL: https://www.frixlaw.com/law-library/cases/10764111 ## Case - **Court:** District Court, N.D. California - **Decided:** December 18, 2024 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10764111 ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BIAO WANG, et al., Case No. 21-cv-06028-PCP 8 Plaintiffs, ORDER DENYING MOTION FOR 9 v. PARTIAL FINAL JUDGMENT 10 ZYMERGEN INC., et al., Re: Dkt. No. 406 Defendants. 11 12 13 In this securities fraud class action, lead plaintiff Biao Wang filed a second amended 14 complaint on March 4, 2024, asserting that defendants DCVC Management Co, LLC, Data 15 Collective II, L.P., and DCVC Opportunity Fund, L.P. (collectively DCVC) were secondarily 16 liable for violations of Sections 11 and 15 of the Securities Act. The complaint alleged that 17 DCVC’s control of Matthew Ocko (an owner of DCVC and a member of Zymergen’s board) and 18 its control of Zymergen both subjected it to liability under Section 15. The complaint also alleged 19 that DCVC was liable for Mr. Ocko’s alleged violation of Section 11 under a theory of respondeat 20 superior. The Court dismissed the Section 15 claim premised on DCVC’s control of Mr. Ocko and 21 dismissed the Section 11 claim. The Court did not dismiss the Section 15 claim alleging liability 22 based on DCVC’s control of Zymergen. 23 DCVC now moves for partial final judgment under Rule 54(b) on the Section 15 and 11 24 claims that were premised on DCVC’s relationship with Mr. Ocko. For the following reasons, 25 DCVC’s motion is denied. 26 I. LEGAL STANDARD 27 “When an action presents more than one claim for relief … or when multiple parties are 1 claims or parties only if the court expressly determines that there is no just reason for delay.” Fed. 2 R. Civ. P. 54(b). Determining whether to enter final judgment under Rule 54(b) follows a two-step 3 process. First, the court considers whether there has been “final judgment” that affects a 4 “cognizable claim for relief … [and] that is ‘an ultimate disposition of an individual claim.’” 5 Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980) (citing Sears, Roebuck & Co. v. 6 Mackey, 351 U.S. 427, 436 (1956)). Second, the court assesses “whether there is any just reason 7 for delay” for entry of final judgment. Id. at 8. Ultimately, this decision is “exclusively within the 8 District Court’s discretion.” Miles v. City of Chandler, 297 F.2d 690, 691 (9th Cir. 1961). 9 II. ANALYSIS 10 The Court concludes that it would be improper to enter final judgment as to any claim 11 against DCVC. 12 As to the Section 15 claim, Mr. Wang relied upon two theories in alleging DCVC’s 13 secondary liability, contending that DCVC was secondarily liable due to its control of either 14 Zymergen or Mr. Ocko. The Court dismissed the claim to the extent it was premised on Mr. Ocko 15 but allowed it to the extent it was premised on control of Zymergen. Mr. Wang’s Section 15 claim 16 against DCVC therefore remains part of the case, albeit with a narrowed focus. Because Mr. 17 Wang’s two theories of liability are part of a single claim arising under Section 15 that the parties 18 continue to actively litigate, the Court’s dismissal of one theory of liability was not a judgment 19 that “ends the litigation on the merits and leaves nothing for the court to do but execute the 20 judgment.” Ariz. State Carpenters Pension Tr. Fund v. Miller, 938 F.2d 1038, 1039 (9th Cir. 21 1991). Final judgment as to Mr. Wang’s Section 15 claim against DCVC is therefore 22 inappropriate. 23 By contrast, the Court has dismissed all Section 11 claims against DCVC and there 24 remains no live allegation that DCVC is liable for any Section 11 violation. As such, there will be 25 no further discovery, motions practice, or merits questions involving DCVC’s liability under 26 Section 11. The Court’s order dismissing these claims is therefore an ultimate disposition as to 27 which there remains “nothing for the court to do but execute the judgment.” Ariz. State 1 Final judgment, however, is inappropriate because resolving the Section 11 claims would 2 not “streamline the ensuing litigation.” Jewel v. Nat’] Sec. Agency, 810 F.3d 622, 628 (9th Cir. 3 |} 2015). 4 First, DCVC remains a defendant with respect to Mr. Wang’s Section 15 claim. If Mr. 5 Wang were to appeal this Court’s dismissal of the Section 11 claim against DCVC—as he would 6 || be entitled to do upon entry of partial final judgment—the parties would litigate this matter 7 simultaneously in both the trial and appellate courts. As the Ninth Circuit has explained, “It will 8 || be arare case where Rule 54(b) can appropriately be applied when the contestants on appeal 9 remain, simultaneously, contestants below.” Jd. at 630 (citing Spiegel v. Trustees of Tufts Coll., 10 || 843 F.2d 38, 44 (1st Cir. 1988)). 11 Second, Mr. Wang’s Section 11 claims against Mr. Ocko remain in the case. A ruling in 12 || Mr. Ocko’s favor on the Section 11 claims would render moot any appeal of the Section 11 claim 13 against DCVC. In this respect, the claim against this Court dismissed is not “substantially 14 different” from the Section 11 claims that remain pending against Mr. Ocko. See Gregorian v. 3 15 Izvestia, 871 F.2d 1515, 1520 (9th Cir. 1989); cf’ CMAX, Inc. v. Drewry Photocolor Corp., 295 a 16 || F.2d 695, 697 (9th Cir. 1961) (denying final judgment where “it would still be necessary for 3 17 appellant, under the second count, to prove the underlying facts pleaded in the first count, in order S 18 || to recover”). 19 Final judgment as to the Section 11 claim against DCVC is therefore also inappropriate. 20 || I. CONCLUSION 21 For the foregoing reasons, DCVC’s motion is denied. 22 IT IS SO ORDERED. 23 Dated: December 18, 2024 24 25 Ma lo~__ P. Casey WHtts 26 United States District Judge 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10764111. Public record. Not legal advice.