Narrative Ark Entertainment LLC v. Archie Comic Publications, Inc. et alMOTION to Strike Paragraphs 98, 100, 101, 102, & 103 of Plaintiff's Rule 56.1 Statement [136-10]. DocumentS.D.N.Y.February 7, 2019 1 Edmund J. Ferdinand, III (EF 9885) Alexander R. Malbin (AM 9385) John F. Olsen (JO 8553) 450 Seventh Avenue Suite 1300 New York, NY 10123 Phone: (212) 220-0523 Fax: (212) 905-6747 jferdinand@24iplg.com amalbin@24iplg.com jolsen@24iplg.com UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NARRATIVE ARK ENTERTAINMENT, LLC, Plaintiff, -against - ARCHIE COMIC PUBLICATIONS, INC., Defendant. __________________________________________ ARCHIE COMIC PUBLICATIONS, INC., Counterclaim Plaintiff and Third Party Plaintiff, -against- NARRATIVE ARK ENTERTAINMENT, LLC, Counterclaim Defendant, SCOTT D. FULOP, Third Party Defendant. Civil Action No. 7:16-cv-06109-VB DEFENDANT ARCHIE COMIC PUBLICATIONS, INC.’S NOTICE OF MOTION TO STRIKE PARAGRAPHS 98, 100, 101, 102, & 103 OF “NARRATIVE AND FULOP ADDITIONAL STATEMENT OF UNDISPUTED FACTS” AND MEMORANDUM OF LAW IN SUPPORT Case 7:16-cv-06109-VB-LMS Document 145 Filed 02/07/19 Page 1 of 6 2 Pursuant to Federal Rule of Civil Procedure 56(c) and Local Civil Rule 56.1(d) of the United States District Court for the Southern District of New York, Defendant, Archie Comic Publications, Inc., hereby respectfully moves the Court to strike Paragraphs 98, 100, 101, 102, and 103 of the “Narrative and Fulop Additional Statement of Undisputed Facts” (Dkt. 136-10 p. 29-30) (the “Narrative/Fulop SMF”) for non-compliance with the requirements of L.R. 56.1(d). L.R. 56.1(d) mandates that each statement set forth by a movant or opponent in a L.R. 56.1 statement of material facts “must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c)”. Failure to comply with this requirement is a valid basis to strike paragraphs of a L.R. 56.1 statement of material facts. See Am. Gen. Life Ins. Co. v. Diana Spira 2005 Irrevocable Life Ins. Trust, No. 08-cv-6843(NSR), 2014 WL 6694502, at *1 (S.D.N.Y. Nov. 25, 2014) (granting motion to strike statements in Rule 56.1 statement of material facts “which are unsupported by any citation to record evidence”); Bey v. City of New York, No. 99 Civ. 3873(LLM), 2009 WL 2060076, *1-4 (S.D.N.Y. Jul. 15, 2009) (granting motion to strike statements in Rule 56.1 statement of material facts where cited evidence failed to support asserted facts); see also Borrelli v. Orange Reg’l Med. Ctr., No. 18 CV 270 (VB), 2018 WL 2357267 (S.D.N.Y. May 24, 2018) (“‘[I]f the evidence to be offered in support of the allegation would be inadmissible at trial, then the motion to strike that allegation should be granted’”) (citations omitted). Paragraphs 98, 100, 101, 102, and 103 of the Narrative/Fulop SMF utterly fail to comply with this requirement, citing only to bare allegations from Narrative’s Amended Complaint or to declarants with no personal knowledge of the assertion in support of which they are cited, none of which constitute admissible evidence under Federal Rule 56(c). These paragraphs should accordingly be stricken from Narrative’s & Fulop’s statement and given no weight or consideration in ruling upon the parties’ summary judgment motions. Case 7:16-cv-06109-VB-LMS Document 145 Filed 02/07/19 Page 2 of 6 3 A. NARRATIVE/FULOP SMF PARAGRAPH NOS. 98, 100, & 101 Paragraphs 98, 100, and 101 of the Narrative/Fulop SMF cite only to naked allegations in Narrative’s Amended Complaint, and to no supporting evidence whatsoever. Narrative’s completely unsubstantiated allegations cannot constitute admissible evidence on a motion for summary judgment. It is well settled that “[a] party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials asserted in his pleadings, or on conclusory allegations or unsubstantiated speculation” See, e.g., Berry v. Marchinkowski, 137 F.Supp.3d 495, 520 (S.D.N.Y. 2015) (declining to consider factual allegations not supported by admissible evidence), quoting Alzawahra v. Albany Med. Ctr., No. 11-CV-227, 2012 WL 5386565, at *1 (N.D.N.Y. Nov. 1, 2012), aff’d, 546 Fed.Appx. 53 (2d Cir. 2013); Novak v. Waterfront Com’n of New York Harbor, 928 F.Supp.2d 723, 725 n. 1 (S.D.N.Y. 2013) (“The Court declines to consider Novak’s unsupported allegations in her Opposition or Complaint on this motion” for summary judgment), citing Continental Ins. Co. v. Atlantic Cas. Inc. Co., No. 07 Civ. 3635(DC), 2009 WL 1564144, at *1 n. 1 (S.D.N.Y. Jun 4, 2009) (“On a motion for summary judgment … allegations in an unverified complaint cannot be considered as evidence. The Court has not relied on any disputed allegations not supported by evidentiary materials”); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (“When [a summary judgment] motion is made, we go beyond the paper allegations of the pleadings … The time has come … ‘to put up or shut up’ … Accordingly unsupported allegations do not create a material issue of fact”) (citations omitted). The only citations to Paragraphs 98, 100, and 101 thus fail to cite to any evidence that is admissible and may be considered on a motion for summary judgment. Accordingly, Paragraphs 98, 100, and 101 fail to comply with the requirement under L.R. 56.1(d) that statements in a 56.1 Case 7:16-cv-06109-VB-LMS Document 145 Filed 02/07/19 Page 3 of 6 4 statement of material facts be followed by citation to admissible evidence under Federal Rule 56(c). Paragraphs 98, 100, and 101 of the Narrative/Fulop SMF should therefore be stricken and given no weight or consideration. B. NARRATIVE/FULOP SMF PARAGRAPH NOS. 102 & 103 Paragraphs 102 and 103 of the Narrative/Fulop SMF purport to set forth ACP’s “awareness” of certain alleged facts. These paragraphs cite to declarations submitted by Scott Fulop, Ken Penders, Scott Shaw, Manny Galan, and John Hebert, all former ACP freelance contributors. These declarations completely fail to set forth any basis, and in fact do not even contend, that their declarants have personal knowledge of ACP’s purported awareness of the contentions set forth in Paragraphs 102 and 103 (that is, ACP’s awareness of copyright registrations filed by Fulop and other freelancers, or of the purported lack of signed work-for- hire agreements between the freelancers and ACP or Sega). As set forth at Federal Rule 56(c) – with which evidence cited in a Local Rule 56.1 statement of material facts must comply (see L.R. 56.1[d]) – “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge”. See Fed. R. Civ. P. 56(c)(4); see also Torrel v. City of New York, 114 Fed.Appx. 14, 16 (2d Cir. 2004) (statement in affidavit for which affiant “did not provide any basis for her personal knowledge of the facts” held “not cognizable on summary judgment review”). As such, because the only evidence cited in support of Paragraphs 102 and 103 are inadmissible in support of their stated contentions, Narrative & Fulop have failed to comply with the requirement under L.R. 56.1(d) that statements in their Local Rule 56.1 statement of material facts be followed by citation to admissible evidence under Federal Rule 56(c). Paragraphs 98, 100, and 101 of the Narrative/Fulop SMF should therefore be stricken and given no weight or consideration. Case 7:16-cv-06109-VB-LMS Document 145 Filed 02/07/19 Page 4 of 6 Case 7:16-cv-06109-VB-LMS Document 145 Filed 02/07/19 Page 5 of 6 CERTIFICATE OF ELECTRONIC FILING I hereby certify that on February 7, 2019, the foregoing NOTICE OF MOTION TO STRIKE PARAGRAPHS 98, 100, 101, 102, & 103 OF “NARRATIVE AND FULOP ADDITIONAL STATEMENT OF UNDISPUTED FACTS” AND MEMORANDUM OF LAW IN SUPPORT was filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system. ___s/ Alexander Malbin _______________ Case 7:16-cv-06109-VB-LMS Document 145 Filed 02/07/19 Page 6 of 6