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
REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
MOTION TO STRIKE PARAGRAPHS 98, 100, 101, 102, & 103 OF
“NARRATIVE AND FULOP ADDITIONAL STATEMENT OF UNDISPUTED FACTS”
Case 7:16-cv-06109-VB-LMS Document 148 Filed 02/26/19 Page 1 of 8
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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. (“ACP”), hereby submits its reply memorandum of law in further support of its
motion to strike Statement Nos. 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).
A. ACP’S MOTION TO STRIKE DULY AUTHORIZED BY LOCAL RULE
As an initial matter, ample legal authority exists for the Court to strike Statement Nos. 98,
100, 101, 102, and 103 of the Narrative/Fulop SMF for failing to comply the clear requirement
under Local Rule 56.1(d) that all factual assertions set forth in a 56.1 statement of undisputed
material facts must be supported by citation to evidence admissible under Federal Rule 56(c).
Contrary to Narrative and Fulop’s argument that only pleadings can be the subject of a
motion to strike (see Dkt. 147 p. 2), it is well settled that materials other than pleadings can be
stricken by courts for non-compliance with governing authority. See, e.g., Hollander v. Am.
Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999) (“A court may … strike portions of an affidavit
that are not based upon the affiant’s personal knowledge, contain inadmissible hearsay or make
generalized and conclusory statements”), citing Fed. R. Civ. P. 56(e); U.S. v. Private Sanitation
Indus. Ass’n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir. 1995); Obeid v. La Mack, No.
14 CV 6498-LTS-HBP, 2018 WL 2059653, *15 (S.D.N.Y. May 1, 2018) (“Courts may strike
argumentative statements in Rule 56.1 response that are appropriate for a non-moving party’s
opposition briefing or consist of extraneous facts not response to the moving party’s Rule 56.1
statement”) (internal citations omitted); cf. Borrelli v. Orange Reg’l Med. Ctr., No. 18 CV 270
(VB), 2018 WL 2357267, *2 (S.D.N.Y. May 24, 2018) (“‘[I]f the evidence to be offered in
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support of the allegation would be inadmissible at trial, then the motion to strike that allegation
should be granted’”) (citations omitted).
And, specifically, courts in this District will strike assertions in 56.1 statements of
material facts that do not comply with Local Rule 56.1 – including the requirement under LR
56.1(d) that statements in a 56.1 statement be supported by evidence admissible under Fed. R.
Civ. P. 56(c). See, e.g., Am. Gen. Life Ins. Co. v. Diana Spira 2005 Irrecovable Life Ins. Trust,
No. 08-cv-6843(NSR), 2014 WL 6694502, *1 (S.D.N.Y. Nov. 25, 2014); Bey v. City of New
York, No. 99 Civ. 3873(LLM), 2009 WL 2060076, *1-4 (S.D.N.Y. Jul. 15, 2009); Epstein v.
Kemper Ins. Cos., 210 F.Supp.2d 308, 314, 320 (S.D.N.Y. 2002).
Narrative and Fulop conspicuously fail to cite to a single decision holding that an
assertion in a 56.1 statement unsupported by citation to admissible evidence cannot be stricken
by a motion to strike. This absence of authority, compared with the cases cited by ACP granting
motions to strike unsupported 56.1 assertions, leaves no question that ACP’s motion to strike is
amply supported by the authority of Local Rule 56.1.
II. Narrative/Fulop SMF Disregards L.R. 56.1(d)’s Directive to Cite to Admissible
Evidence in Support of Statement Nos. 98, 100, 101, 102, & 103
In addition to failing to overcome the legal authority supporting ACP’s motion to strike,
Narrative and Fulop fail to refute their clear non-compliance with Local Rule 56.1(d)’s directive
that assertions in a 56.1 statement of material facts
A. No admissible evidence offered in support of Statement No. 98
Statement No. 98 of the Narrative/Fulop SMF should be stricken for its complete lack of
supporting evidence.
While Narrative and Fulop claim that the works listed at Exhibits D and E of the
Amended Complaint are “part of the record” (Dkt. 147 p. 3), this is false – in fact, none of the
works were produced in discovery, none were submitted in connection with the Narrative/Fulop
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SMF, and none were submitted in connection with Narrative’s and Fulop’s cross-motion for
summary judgment. As such, the record is completely devoid of any admissible evidence of
these works.
The mere listing of certain allegedly-infringing works in Exhibits D and E of the
Amended Complaint, without any evidence supporting the existence or substance of those works,
amounts to nothing more than unsupported, conclusory allegations which do not constitute
admissible evidence on a motion for summary judgment. As noted by the Second Circuit:
“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’.” Weinstock v. Columbia Univ., 224
F.3d 33, 41 (2d Cir. 2000).
The Amended Complaint’s entirely unsupported allegations of works allegedly published
by ACP do not constitute admissible evidence on the parties’ motions for summary judgment.
As such, because Statement No. 98 is unsupported by citation to admissible evidence, it should
be stricken from the Narrative/Fulop SMF for non-compliance with Local Rule 56.1(d).
B. No admissible evidence offered in support of Statement No. 102 & 103
With respect to Statement Nos. 102 & 103, Narrative and Fulop’s response continues to
fail to point to any admissible evidence in support of their assertions.
Narrative and Fulop point to statements in Ken Penders’ declaration as purportedly
evidencing ACP’s awareness of copyright registrations filed by Penders, as well as Copyright
Office correspondence purportedly sent to ACP regarding Penders’ copyright filings (see Dkt.
147 p. 5-6). However, Penders’ statements do not support that ACP was aware of his copyright
filings. The fact that a Copyright Office representative informed Penders that it was sending a
letter to ACP informing it of Penders’ filings does not confirm that ACP ever received that notice
– and to the contrary, the statement in Penders’ declaration that the Copyright Office
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representative informed him that ACP did not respond to the letter supports that ACP in fact did
not receive the notice, and therefore fails to support that ACP was made aware of Penders’
copyright filings.1
And more importantly, Penders’ declaration does not even purport to claim personal
knowledge of ACP’s awareness of his copyright filings. The fact that Penders had personal
knowledge of the Copyright Office’s letter to ACP is a distinct issue from the factual assertion of
Statement No. 102, which purports that ACP was aware of freelancers’ copyright filings. No
statements in Penders’ declaration, or any of the other declarations cited in the
Narrative/Fulop SMF, provide any basis for the declarants having personal knowledge of
ACP’s awareness of any freelancers’ copyright filings.
Likewise, with respect to Statement No. 103, none of the declarations cited by Narrative
and Fulop claim any basis of personal knowledge of ACP’s awareness of the underlying
assertion of freelancers not having agreements with ACP or Sega, as oppose to personal
knowledge of the underlying assertion itself. And notably, Narrative and Fulop fail to even
contend that the cited declarations support ACP’s awareness of agreements between the
freelancers and Sega.
Because none of the declarations cited in support of Statement Nos. 102 & 103 provide
any basis for the declarants having personal knowledge of ACP’s awareness of their underlying
assertions, the declarations are all inadmissible in support of Statements 102 & 103. As such,
because Statements 102 & 103 are unsupported by citation to admissible evidence, they should
each be stricken from the Narrative/Fulop SMF for non-compliance with Local Rule 56.1(d).
1 When questioned on this issue, ACP’s corporate representative testified that the cited Copyright Office
correspondence is not in ACP’s files, and that ACP has no record of receipt. See Declaration of Alexander R.
Malbin dated February 26, 2019 submitted herewith, at ¶ 3, Ex. 1, 109:22-111:16.
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C. No Admissible Evidence in Support of Statement Nos. 100 & 101 Cited in the
Narrative/Fulop SMF
Next, with respect to Statement Nos. 100 and 101, Narrative’s and Fulop’s response to
ACP’s motion to strike points for the first time to certain declarations and deposition testimony
that they contend support these assertions. However, these materials were not cited in the
Narrative/Fulop SMF, as plainly required under Local Rule 56.1.
Because Narrative and Fulop failed to cite to admissible evidence in support of Statement
Nos 100 and 101 in the Narrative/Fulop SMF, those statements should be stricken from the
Narrative/Fulop SMF for non-compliance with Local Rule 56.1(d).
III. ACP’s Evidence Disputing Narrative/Fulop SMF Set Forth in ACP’s Counter-SMF
ACP further notes that, contrary to Narrative’s and Fulop’s claim that ACP does not deny
their assertions at issue on this motion to strike and/or have not offered contrary evidence (see
Dkt. 147 p. 3-5), ACP has presented admissible evidence raising genuine disputes of fact to these
assertions in its Counterstatement of Facts in Dispute in response to the Narrative/Fulop SMF
(see Dkt. 143). ACP’s present motion to strike contends that the assertions at issue should be
stricken for non-compliance with LR 56.1(d); separately and in addition, as set forth in its
Counterstatement to the Narrative/Fulop SMF, ACP contends that evidence supports the
existence of genuine disputes of fact as to each of these assertions.
As such, should ACP’s motion to strike these assertions from the Narrative/Fulop SMF
be denied, substantial evidence supports the existence of genuine disputes of fact as to each of
the statements, precluding summary judgment in Narrative’s or Fulop’s favor to the extent
predicated on any of these statements being undisputed.
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CERTIFICATE OF SERVICE
I hereby certify that on February 25, 2019, the foregoing DEFENDANT ARCHIE
COMIC PUBLICATIONS, INC.’S REPLY MEMORANDUM OF LAW IN FURTHER
SUPPORT OF MOTION TO STRIKE PARAGRAPHS 98, 100, 101, 102, & 103 OF
“NARRATIVE AND FULOP ADDITIONAL STATEMENT OF UNDISPUTED FACTS” and
Declaration of Alexander R. Malbin in support thereof were 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_____________
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