Free Reply to Response to Motion - District Court of Arizona - Arizona

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MESCHKOW & GRESHAM, P.L.C.
Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818
(602) 274-6996 (602) 274-6970 (facsimile) Email: [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff, v. AVNET, INC., Roy Vallee and Cindy Vallee, husband and wife, and Al Maag and Michaelle Maag, husband and wife, Defendants. Case No.: CV-04-0621 PHX SRB PLAINTIFF'S REPLY ON MOTION TO STRIKE NOTICE OF SERVICE OF AVNET'S SECOND SUPPLEMENTAL DISCLOSURE STATEMENT (EXPERTS) AND TO STRIKE AVNET'S SECOND SUPPLEMENTAL DISCLOSURE STATEMENT (EXPERTS) (Assigned to The Hon. Susan R. Bolton)

Plaintiff Dan Coogan ("Coogan") hereby replies to Avnet's Response to Plaintiff's Motion to Strike. Plaintiff respectfully requests that this Court grant Plaintiff's Motion to Strike the Notice of Service of Avnet's Second Supplemental Disclosure Statement (Experts) and, accordingly strike Avnet's Second Supplemental Disclosure Statement (Experts) as defectively served, because 1) "Avnet's improper electronic signature"1 constitutes not one, but two omitted signatures that violate both FED. R. CIV. P. 5 and 11, the latter of which mandates that "Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name...,

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Response, page 1, line 21, and Legal Analysis I, page 2.
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(emphasis added) 2) this omission of signature was the second omission of signature2, 3) the instant omission of signature occurred after Plaintiff informed Defendants about the omitted signature in Plaintiff's earlier Response, Defendants show they recognized this point, as well as others in Plaintiff's earlier Response because Defendants only tried to file this because Plaintiff included this as reason not to grant Defendants their extension in Plaintiff's earlier Response, prompting Defendants to file this Notice, 4) because Plaintiff has suffered prejudice based on Defendant filing not one, but now at the second pleading with no signature by attorney or on its certificate of service, and if not struck the accompanying Disclosure is not struck based on the lack of signatures on its Notice, Plaintiff will suffer much prejudice, indeed so he suffers prejudice based on the lack of signatures, and 5) because the penalty for a unsigned pleading is that it "shall be stricken..." FED. R. CIV. P. 11. LEGAL ANALYSIS I. Avnet's Notice of Service was filed with No Signatures a. Avnet's is mistaken about "improper signature" Avnet's argument starts with "Plaintiff's assertion that Avnet's improper signature was done `in bad faith' is mistaken." Nowhere in Plaintiff's Motion to Strike does Plaintiff call a signature or signatures "improper". Bad faith or not, Plaintiff's legal analysis begins with a citation of FED. R. CIV. P. 11 under a heading that reads "Defendants Notice of Service of ... is Not Signed and Must be Struck (emphasis added). The last sentence of this section reads "...this makes the Notice an unsigned paper under FED. R. CIV. P. 11, this Notice of Service must be struck." Nowhere does Avnet even argue whether the signatures by attorney and of service were omitted or not. The last sentence of this section of Plaintiff's Motion to Strike still holds. Avnet's argument fails.
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Plaintiff pointed this out in Plaintiff's Response to Avnet's Motion for Extension of Expert Disclosures and Request for Expedited Briefing and/or Ruling (hereafter Plaintiff's earlier Response).
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Moreover, Avnet claims "both undersigned counsel and the secretary for undersigned counsel have attended workshops addressing the new electronic filing procedures, and both believed that the electronic signatures on the pleadings and notices referenced by plaintiff comported with the rules". This is disingenuous. Had Avnet's counsel or the secretary for counsel even look at the Rules, they would know better. Rule II.C.1 and II.C.3, Case Management/Electronic Case Filing Administrative Polices and Procedures Manual says the name of the CM/ECF registered user... must be preceded by a "s/" and be typed in the space where the signature would otherwise appear. This is also included in the Case Management/Electronic Case Filing User Manual, free for the download at a link at the Electronic Case Filing website at

http://www.azd.uscourts.gov/azd/cm-ecf.nsf/main?openpage. In fact, the only place where the words "bad faith" appears in Plaintiff's Motion is where Plaintiff says Defendants identified their expert witness in bad faith. This referred to Defendants filing and serving their Disclosure of Expert, and the purported Notice after Plaintiff pointed out such issues in Plaintiff's earlier Response. Avnet's Notice of Service was filed with no signatures, either by the attorney or in the Certificate of Service. It constitutes an unsigned paper per FED. R. CIV. P. 11 and it must be struck. b. The Striking of Avnet's Notice and its Second Disclosure is Appropriate i. This is at least the Second Time Avnet has Omitted a Signature on a Paper It is arguable about where some proverbs come from and how old they may be. With the well-known sage-like proverb "Fool me once, same on you; fool me twice, shame on me" Plaintiff found a one website that reports it as a Chinese Proverb, and another that says "There is an old saying, attributed variously to the Scottish, the Native Americans, and the Chinese, which goes (quote omitted)". See Exhibits 1 and 2. Either

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way, the proverb is both old, and used frequently in the American way of life. See Exhibit 3. Yet, in the instant case, Defendants omitted signatures in Avnet's Motion for Extension of Expert Disclosures and Request for Expedited Briefing and/or Ruling, and cited an incorrect date of service. Now they have filed another Paper with no signature. The first time they did it, the "gag", "joke" or "prank" was on the Court and Plaintiff and his counsel, Plaintiff included this as reason why the Motion should be struck in a footnote of page one of Plaintiff's earlier Response. This time, Plaintiff filed this Motion, and this Motion concerns the second time; this should not be dealt with lightly. The penalty for an omitted signature is to strike it. FED. R. CIV. P. 11. ii. Avnet Omitted a Signature on a Paper After Plaintiff Advised Avnet of the Requirements, and the Rule, as well Avnet claims their omitted signature (the "improper signature") shows a "lack of familiarity with these new electronic signature rules. This lack of familiarity is not a result of disdain for the Court's rules..." Yet, as Plaintiff points out in the Motion at hand, Avnet learned from the Plaintiff's earlier Response that Avnet's Motion for Extension of Expert Disclosures and Request for Expedited Briefing and/or Ruling was 1. unsigned, that 2. Plaintiff's past earnings were irrelevant to copyright infringement damages...; and that 3. Defendant Avnet had made no FED. R. CIV. P. 26(a)(2) filing. As to the first point, above (unsigned), Plaintiff said "The instant Motion is undated and is not signed pursuant to Case Management/Electronic Case Filing Administrative Polices and Procedures Manual, Rule II.C.1 and II.C.3, has an equally not signed Certificate of Service, plus the Certificate of Service certifies the document was served on August 3rd, 2005, not September 2, 2005 per the CM/ECF emailing the undersigned received". See Plaintiff's earlier Response, page 1. Defendants made this Notice and the Disclosure in response to the filing of Plaintiff's earlier Response, because 1. it was the last day they could do so, and 2. because

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Plaintiff pointed out that no expert disclosure had been filed (nowhere, not in Avnet's Reply in Support of its Motion for Extension of Expert Disclosures or in the instant Avnet Response has Avnet disputed this). Defendants took this as a gift. Yet, Avnet did not heed Plaintiff's other "gift", the citation of Case Management/Electronic Case Filing Administrative Polices and Procedures Manual, Rule II.C.1 and II.C.3, about signatures when filing this Notice. This shows an immediate disdain, or at least a callous disregarding of the Rules. Moreover, if Avnet "counsel and the secretary for undersigned counsel have attended workshops addressing the new electronic filing procedures" then they should know these Rules, as Plaintiff does. See the attached affidavits of Dan Coogan and Jordan M. Meschkow, attached as Exhibits 4 and 5. This is where Plaintiff's counsel learned about these Rules months ago in an ECF training class, and since then a copy of the Case Management/Electronic Case Filing Administrative Polices and Procedures Manual and the CM/ECF User Manual sit behind counsel's copy of the December 1, 2004 Rules of Practice of the United States District Court for the District of Arizona. Even the latter User Manual says "The name of the ECF Registered User under whose log-in and password the document is submitted must be preceded by a "s/" and typed in the space where the signature would otherwise appear (i.e., s/John Smith) (emphasis added). See CM/ECF User Manual, page 10 under the headings "Signatures". This is in the Table of Contents, as well. Defendants feigned lack of familiarity shows Defendants did not take notice of this as they should have, and this shows disdain, or a callous disregarding of the Rules, especially after those Rules are cited against you by your opponent. Avnet's /s/________________ "signature" on the instant Notice of Service is no signature within the Rules of this Court, or in the face of the tools this Court has made available to CM/ECF users, and certainly not within the meaning of FED. R. CIV. P. 11. Avnet's /s/________________ "signature" on the instant Notice of Service and the Certificate of Service are no signatures within the Rules of this Court, or in the face of the tools this Court has made available to CM/ECF users, and they

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are defective as to both FED. R. CIV. P. 5 and 11. This Notice of Service was unsigned, and its Certificate of Service was unsigned, and never corrected. The Notice of Service must be struck. II. Plaintiff Has Suffered Prejudice from this Filing and Will Suffer More, if the Motion is not Granted This is a case of an individual photographer versus a Fortune 500 company. Each time Plaintiff engages his counsel to act, it costs Plaintiff a significant expense. In anticipation of the move to CM/ECF by the United States District Court, District of Arizona, Plaintiff was instructed about some of its precepts by his counsel. One of these precepts concerned signatures, and the difference between an attorney's signature and a client's signature. It was Mr. Coogan that initially noted that Avnet did not sign its Motion for Extension of Expert Disclosures; this is why Plaintiff's earlier Response included this on page 1 in a footnote. Mr. Coogan comment regarding the second unsigned document, the Notice of Service, was "don't let Avnet get away with anything" when he chose to expend non-budgeted funding in having his attorney file this Motion to Strike. He was offended that this Fortune 500 company tries to avoid any ruling in this case, any way it can. Additionally, if this Motion to Strike is not granted, Mr. Coogan is prejudiced, so he also suffers prejudice by the omitted signatures. Moreover, Mr. Coogan will not only be prejudiced by the expenditure of attorney fees, but by the use of Defendants' expert in general, John Trotto. Mr. Coogan assisted Avnet's identified expert in the 1991-1992 years, has known him as a colleague and an acquaintance since then, and when he was informed last year that Avnet engaged him to re-shoot the photography of Roy Vallee for Avnet, discussed some of this case with him. Those discussions could be prejudicial to Plaintiff. Additionally, Avnet's purported expert was a client of the undersigned attorney in matters much like this one, just not against a Fortune 500 company. No matter what this expert says now about Plaintiff's work; it is tainted by his similar actions, and by whether

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any of that material, including old attorney/client communications, will be prejudicial to Plaintiff and his counsel. Its Notice of Service having no signature carries much prejudicial weight against Plaintiff and his counsel. See Ex. 4 and 5. CONCLUSION In conclusion, the Notice of Service was at least the second paper Avnet filed with no signatures. Avnet filed that Notice and its Disclosure because of Plaintiff's earlier Response, which told Avnet about disclosures not being filed, and about the signature Rules. Avnet chose not to follow or heed the Rules in filing its Notice of Service. Plaintiff decided to file this Motion because it was at least the second omitted signature Paper. Plaintiff and his counsel have been and may be more prejudiced by this, and by Avnet's expert. For all of these Reasons, and just because Avnet's signatures do not comport with the Local Rules or FED. R. CIV. P. 11. For one or all of these reasons, the Notice of Service must be struck. Its Disclosure must be struck with it (no proper service, no disclosure), and Avnet should not be granted leave to file this again, or it will have learned nothing from Plaintiff's or the Court. It has shown that already.

RESPECTFULLY SUBMITTED this 16th day of September, 2005.

By: s/Jordan M. Meschkow____________ Jordan M. Meschkow Lowell W. Gresham MESCHKOW & GRESHAM, P.L.C. 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818

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CERTIFICATE OF SERVICE I hereby certify that on September 16, 2005 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Jordan Greene and Charles Houston FENNEMORE CRAIG 3003 North Central Avenue, Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants /s Jordan M. Meschkow________________

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