United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STALES DISTRICT JUDGE
before the Court is Warner Bros. Consumer Products Inc. and
Warner Bros. Entertainment Inc.'s
(“Defendants”) motion for summary judgment or,
alternatively, judgment on the pleadings. (Doc. 66). David
Kaufman (“Plaintiff”) has responded, (Doc. 72),
and Defendants have replied, (Doc. 77). Additionally, upon
this Court's order, (Doc. 78), Plaintiff has filed a
surreply to Defendants' evidentiary objections, (Doc.
81), and Defendants have filed a sur-surreply, (Doc. 83).
mid-1960s, Kustomotive-a partnership between Richard Korkes
(“Korkes”) and Daniel Dempski
(“Dempski”) that created automobiles for use in
movies, television, and other forms of entertainment-entered
into contracts with Twentieth Century-Fox Television, Inc.
(“Fox”) and Greenway Productions, Inc.
(“Greenway”) to build a “Batcycle”
and a “Batgirl-Cycle” to be used in the 1960s
Batman television show and movie and the
Batgirl movie. (Docs. 67-6 & 67-16). The
Batcycle was to be made by fusing together a modified Yamaha
motorcycle, upon which the superhero Batman would ride, with
a detachable go-kart sidecar for his sidekick Robin, while
the Batgirl-Cycle was to be made of a modified
“motorcycle chassis.” (Docs. 67-6 & 67-16).
Batcycle agreement stated that Kustomotive:
quitclaims, assigns, transfers and sets over to [Fox and
Greenway] any and all right, title and interest in and to the
design of the Batcycle . . . and in and to the design or
designs of the completed Batcycle . . . and any and all
right, title and interest in and to said designs shall
forever be vested in and owned solely by [Fox and Greenway].
(Doc. 67-6 at 7). The Batgirl-Cycle agreement contained the
same language. (Doc. 67-16 at 4).
agreements did provide, however, the opportunity for
Kustomotive to “acquire a percentage of net profits
received from merchandising rights in and to the
Batcycle” and Batgirl-Cycle “[s]ubject to
entering into an agreement with Licensing Corporation of
America” (“LCA”). (Doc. 67-6 at 5); (Doc.
67-16 at 4-5). Plaintiff claims that Kustomotive entered into
such a merchandising contract with LCA regarding the Batcycle
(“Merchandising Contract”), (Doc. 72 at 2), and
the Batgirl-Cycle, (Doc 28 at 4), while Defendants contest
that such merchandising agreements were ever made, (Doc. 66
and Dempski are deceased. (Id.) Plaintiff claims to
be the assignee of Korkes' rights under the Batcycle and
Batgirl-Cycle contracts and the related merchandising
agreements. (Id.) Plaintiff sued Defendants, who are
allegedly successors in interest to LCA, arguing that
Defendants owe Plaintiff a percentage of the merchandising
profits from selling Batcycle and Batgirl-Cycle products.
(Id.) Plaintiff alleges five causes of action: (1)
breach of contract; (2) breach of the covenant of good faith
and fair dealing; (3) conversion; (4) unjust enrichment; and
(5) fraudulent concealment. (Doc. 28).
Court must grant a motion for summary judgment where there is
“no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The summary judgment procedure proceeds
in two steps. First, the movant must cite materials in the
record demonstrating an absence of a genuine dispute of
material fact or “point out . . . that there is an
absence of evidence to support the nonmoving party's
case.” Celotex Corp. v. Catrett, 477 U.S. 317,
324-25 (1986). Second, if the movant satisfies its burden,
the nonmoving party “must set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). A dispute is material if it involves “facts
that might affect the outcome of the suit under the governing
law.” Id. at 248. A dispute is genuine if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Where a nonmoving party's evidence is “merely
colorable” or “not significantly probative”
summary judgment should be granted. Id. at 249-50.
In ruling on a motion for summary judgment, the Court must
make “all justifiable inferences” from the
evidence in the nonmoving party's favor. Id. at
Court must grant a motion for judgment on the pleadings where
“taking all allegations in the pleading as true, the
moving party is entitled to judgment as a matter of
law.” McGann v. Ernst & Young, 102 F.3d
390, 392 (9th Cir. 1996); see Fed. R. Civ. P. 12(c).
court sits in diversity jurisdiction, as the Court does here,
it must utilize federal procedural law and state substantive
law. Erie R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). Under this framework, conflict-of-law disputes are
considered substantive, and should be resolved by applying
the law of the forum state. Klaxon Co. v. Stentor Elec.
Mfg. Co., 313 U.S. 487, 496 (1941). In determining the
content of state law, the state's highest court is
“the final arbiter of state law, ” while
“[a] state appellate court's announcement of a rule
of law is a datum for ascertaining state law.”
Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1266
(9th Cir. 2017) (first quoting West v. Am. Tel. &
Tel. Co., 311 U.S. 223, 236 (1940); and then quoting
Miller v. Cty. of Santa Cruz, 39 F.3d 1030, 1036 n.5
(9th Cir. 1994), as amended (Dec. 27, 1994)).
outset, the Court must resolve what evidence it may consider
in ruling on Defendants' motion for summary judgment.
Defendants contend that many of the exhibits attached to
Plaintiff's response may not be considered by the Court
because they are not authenticated, lack foundation, contain
inadmissible hearsay, and are not part of the record. (Doc.
77 at 4-7). Additionally, Defendants claim that the Court
should deem certain paragraphs in Defendants' statement
of facts as true because Plaintiff failed to ground his
opposition to these statements in the record. (Id.
at 7-8). For his part, Plaintiff contends that Defendants
have admitted the existence of the Merchandising Contract by
failing to respond in a timely manner to Plaintiff's
request for admission. (Doc. 72 at 16-17). These claims will
be resolved in turn.
argue that Exhibits B, D, F, G, H, I, K, N, P, R, U, and V
lack authentication, because Plaintiff merely attached them
to his response without an authenticating affidavit. (Doc. 77
at 6). The Court need not resolve what appears to be an
intra-circuit split on whether an authenticating affidavit is
necessary on summary judgment when a document is
authenticated through personal knowledge. Compare Orr v.
Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.
2002) (necessary), with Fraser v. Goodale, 342 F.3d
1032, 1037 (9th Cir. 2003) (not necessary). These exhibits
are authenticated on the basis of their status as ancient
documents, because they are “in a condition that
creates no suspicion about [their] authenticity[, ] . . .
[were] in a place where, if authentic, [they] would likely
be[, ] and . . . [are] at least 20 years old.”
Fed.R.Evid. 901(b)(8). Accordingly, they can be considered by
the Court on summary judgment.
claim that Exhibits C, E, J, Q-1, and W were not filed with
Plaintiff's statement of facts, and thus are not a part
of the record. (Doc. 77 at 4). On November 14, 2017,
Plaintiff filed his statement of facts in opposition to
summary judgment and attached exhibits thereto. (Doc. 73). On
the same day, Plaintiff filed a notice of errata, indicating
that Exhibits B and D failed to upload to the system,
possibly due to the size of the files, and Exhibits K and Q-1
“failed to upload as the ECF system repeatedly returned
‘duplicate file' messages for those
documents.” (Doc. 74). Of these exhibits, Exhibit Q-1
was not subsequently uploaded to the CM/ECF system.
Additionally, Exhibits C, E, J, and W were not uploaded in
the system and were not mentioned in the notice of errata.
this Court's order to file a surreply to Defendants'
evidentiary objections, Plaintiff filed seventeen exhibits,
composed of the exhibits that were referenced in
Plaintiff's previous filings, but which were not
originally uploaded to the CM/ECF system and additional
exhibits Plaintiff purports to rely on in his surreply.
(Docs. 81-1- 81-17).
motion for summary judgment, the Court may only take into
account evidence that is part of the record. See
Fed. R. Civ. P. 56(c)(3); Fraser, 342 F.3d at 1036.
Although Federal Rule of Civil Procedure 56 does not define
the term “record, ” the Court understands it to
mean “[t]he official report of the proceedings in a
case, including the filed papers.” Record,
Black's Law Dictionary (10th ed. 2014). As a
general matter, exhibits must be filed electronically, absent
leave of court. See Electronic Case Filing Administrative
Policies and Procedures Manual 2, 17-19 (2018); LRCiv
5.5; Fed.R.Civ.P. 5(d)(3). In response to a motion for
summary judgment, such filings must be made within thirty
days of the motion for summary judgment being served. LRCiv
56.1(d). If this deadline is not met, the Court may permit
tardy filings for “good cause” upon a party's
motion describing its “excusable neglect.”
Fed.R.Civ.P. 6(b)(1)(B). Plaintiff did not file any of the
exhibits contained in his surreply within thirty days of
Defendants' motion for summary judgment. Furthermore,
Plaintiff did not subsequently move for relief or represent
that his neglect was excusable. Finally, the Court's
order requiring a surreply did not permit the filing of
untimely exhibits. Accordingly, Exhibits C, E, J, Q-1, W, and
all exhibits attached to Docket 81 are not a part of the
record and will not be considered by the Court in resolving
Defendants' motion for summary judgment.
same vein, the Court will not expand the summary judgment
record to include evidence, describing Plaintiff's
disclosure, filed in Defendants' sur-surreply. (Doc.