Free Motion to Strike - 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 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"), by and through undersigned counsel, hereby moves 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. The Notice was only submitted to the Court after Plaintiff pointed 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) that Defendants had yet to identify any expert in its initial disclosure statements, and then Defendants did so in bad faith. This is because in Plaintiff's earlier Response, Plaintiff also pointed out that Defendants do not sign their pleadings in accordance with the Rules II.C.1 and II.C.3 of the Case Management/Electronic Case Filing Administrative Polices and Procedures Manual, and obviously show a disdain for
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these rules, the local and federal rules enforcing them, and for this Court. Defendant Avnet did no better here; its signatures are defective and missing, still. For these reasons, Plaintiff moves that this Court strike the Notice of Service of Avnet's Second Supplemental Disclosure Statement (Experts). Then, as follows, since Avnet's Second Supplemental Disclosure Statement (Experts) was mailed to Plaintiff under a defective, stricken, Notice of Service, it must be struck too. LEGAL ANALYSIS I. Defendants Notice of Service of Avnet's Second Supplemental Disclosure Statement (Experts) is Not Signed and Must be Struck FED. R. CIV. P. 11 states: Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name... An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of attorney or party. CM/ECF A. P. P. M. Rule II.C.1 states: The registered user log-in and password required to submit documents to the CM/ECF system will serve as that registered user's signature for purposes of Rule 11 of the Federal Rules of Civil Procedure and for all other purposes under the Federal Rules of Civil, Criminal and Appellate Procedure and the Local Rules of this court. The name of the CM/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. (Emphasis added). CM/ECF A. P. P. M. Rule II.C.3 states: The filer of any document requiring more than one signature must: a. Certify that the content of the document is acceptable to all persons required to sign the document by obtaining either physical signatures or authorization for the electronic signatures of all parties on the document. Physical, facsimile or electronic signatures are permitted. b. Electronically file the document indicating the signatories as "s/Jane Doe," "s/John Smith," etc. for each electronic signature. As shown in Exhibit 1, hereto, the Notice of Service of Avnet's Second Supplemental Disclosure Statement (Experts) as downloaded from PACER after the CM/ECF email notice of the filing of document #85 (the Notice of Service) lacks signatures, which makes it the same as the one submitted to the Court. Here, Defendants' Notice contains a "/s/, as opposed to the "s/" the Rule requires, and has a blank line following it where the
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attorney's signature would appear (if this was a paper filing). Yet in an ECF filing, the Rule is clear that 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 submission has no s/ and what it does have, the /s/, is followed by a blank line, not the name of the CM/ECF registered user, and this is also after Plaintiff pointed out that Defendants do not sign their pleadings in accordance with the Rules II.C.1 and II.C.3 of the Case Management/Electronic Case Filing Administrative Polices and Procedures Manual in Plaintiff's earlier Response. Moreover, the Notice has a Certificate of Service for a non-CM/ECF registered user, and this is not signed either by the s/ Name or a physical signature as Rule II.C.3 requires. Therefore both signatures are invalid and missing, and the document violates FED. R. CIV. P. 11. Moreover, it clear Defense counsel took some heed of Plaintiff's notification of omitted signature in Avnet's Motion for Extension of Expert Disclosures and Request for Expedited Briefing and/or Ruling. This can be seen in Exhibit 2, a mailed copy of the Notice of Service of Avnet's Second Supplemental Disclosure Statement (Experts). This document shows a mock or copy physical signature by attorney, but the Certificate of Service remains unsigned. This taking some heed, yet clearly not all (and after being educated by Plaintiff ­ as was Avnet's attempt to satisfy FED. R. CIV. P. 26(a)(2) on its last day after Plaintiff tells them), in the filing of the Notice of Service sans signatures, shows a disdain for this Court's Rules II.C.1 and II.C.3 of the Case

Management/Electronic Case Filing Administrative Polices and Procedures Manual, and of this Court because defense counsel should know better, now. This additional mock or copy physical signature is also an insufficient correction of signatures after being called to the attention of attorney or party as Rule 11 requires, because the Certificate of Service remains unsigned. Since this makes the Notice an unsigned paper under FED. R. CIV. P. 11, this Notice of Service must be struck.

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II.

With Defendants Notice of Service for of Avnet's Second Supplemental Disclosure Statement (Experts) Struck, Avnet's Second Supplemental Disclosure Statement (Experts) Must be Struck

FED. R. CIV. P. 5 states: (a) Except as otherwise provided in these rules, every... pleading subsequent to the original complaint ..., every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties... It also states at (c) All papers after the complaint required to be served upon a party, together with a certificate of service, must be filed with the court within a reasonable time after service, but disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: (i) depositions, (ii) interrogatories, (iii) requests for documents or to permit entry upon land, and (iv) requests for admission. Lastly, FED. R. CIV. P. 5 (e) states: The filing of papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. A court may by local rule permit papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, which the Judicial Conference of the United States establishes. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rules or practices. Plaintiff has shown how Avnet not only did not follow this Court's local rules, and the Case Management/Electronic Case Filing Administrative Polices and Procedures Manual, Avnet attempted to simultaneously flaunt them and disdain them. It sent Plaintiff's a Notice of Service with a mock signature of the attorney and no signature for its Certificate of Service (see Exhibit II). Yet, on top of this, defense counsel sent Plaintiff an originally signed version of Avnet's Second Supplemental Disclosure Statement (Experts) (see Exhibit III, copied with its last page in color). This shows how defense counsel could arrange for an executed Certificate of Service for the Supplemental Disclosure Statement

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itself, but not even sign, or make same available in its Notice of Service filed with the Court. Since Notice of Service for of Avnet's Second Supplemental Disclosure Statement (Experts) was improperly filed by the Court on defendants' last day to do so, in an improper presentation, and must be struck, it follows that any Supplemental Disclosure Statement made pursuant to it, must be struck as well. Defendants did not comply with this Court's local rules, and after doing so, post "heads-up" by Plaintiff, cannot be forgiven or overlooked by this Court. III. Conclusion Avnet learned and "woke up" from Plaintiff's Response to Avnet's Motion for Extension of Expert Disclosures and Request for Expedited Briefing and/or Ruling that: 1. Its Motion for Extension of Expert Disclosures and Request for Expedited Briefing and/or Ruling was improperly and defectively signed; 2. That Plaintiff's past earnings are irrelevant to copyright infringement damages, since under actual damages that constitutes damages and profits of the infringer not in the actual damages; and 3. That Defendant Avnet had made no FED. R. CIV. P. 26(a)(2) filing. In filing its Notice of Service and making a Supplemental Disclosure Statement, Avnet attempted cure to #3 above. Instead, it took little heed of #1 above, disdained the local rules and this Court by not following them again, and then tried FED. R. CIV. P. 11 "cure" only to flaunt its disdain of the Rules. Only Plaintiff received true original signed copies of a Supplemental Disclosure Statement, when its Notice of Service has a mock attorney signature, and no signature in the Certificate of Service. This Court must show Avnet that its local rules apply to it, too, and 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.

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RESPECTFULLY SUBMITTED this 7th 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

CERTIFICATE OF SERVICE I hereby certify that on September 7, 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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