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Kaufman v. Warner Bros. Entertainment, Inc.

United States District Court, D. Arizona

September 12, 2018

David Kaufman, Plaintiff,
Warner Bros. Entertainment Incorporated, et al., Defendants.



         Pending 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).

         I. Background

         In the 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).

         The 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).

         The 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 at 2).[1]

         Korkes 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).

         II. Legal Standards

         The 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 255.

         The 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).

         When a 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)).

         III. Analysis

         A. Evidentiary Issues

         At the 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.

         1. Authentication

         Defendants 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.

         2. Record

         Defendants 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, [2]and W were not uploaded in the system and were not mentioned in the notice of errata.

         Upon 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).

         On a 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.

         In the same vein, the Court will not expand the summary judgment record to include evidence, describing Plaintiff's disclosure, filed in Defendants' sur-surreply. (Doc. 83-2).

         3. ...

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