American Freedom Defense Initiative et al v. Suburban Mobility Authority For Regional Transportation (SMART) et al
Filing
68
MOTION for Leave to File Supplemental Brief by American Freedom Defense Initiative, Pamela Geller, Robert Spencer. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Yerushalmi, David)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
AMERICAN FREEDOM
DEFENSE INITIATIVE; et al.,
No. 2:10-cv-12134-DPH-MJH
Plaintiffs,
v.
Hon. Denise Page Hood
SUBURBAN MOBILITY
AUTHORITY for REGIONAL
TRANSPORTATION (“SMART”);
et al.,
Magistrate Judge Hluchaniuk
Defendants.
PLAINTIFFS’ MOTION TO FILE SUPPLEMENTAL BRIEF IN FURTHER
SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Plaintiffs, by and through their undersigned counsel, hereby request
permission from this court to file the supplemental brief appended hereto
immediately below in further support of their motion for summary judgment (Doc.
No. 58).
Plaintiffs’ supplemental brief will be limited to, and focused solely on, an
incorrect assertion of fact made by Defendants’ counsel at the hearing on the
parties’ cross-motions for summary judgment. Specifically, at the hearing on
November 13, 2013, Defendants’ counsel told the court that Defendant Beth
Gibbons, who had testified at the preliminary injunction hearing as Defendant
SMART’s Rule 30(b)(6) witness, was not a decision maker at SMART either at
that hearing or any time prior to that relevant to Plaintiffs’ submission of the
1
advertisement at issue in this litigation.1 That assertion of fact is not true and
certainly not supported by the record. Defendant Gibbons was a decision maker in
applying Defendant SMART’s advertising policies at the time Plaintiffs’
advertisement was submitted to SMART; she was similarly a decision maker at the
time of her testimony at the preliminary injunction hearing; and she remained a
decision maker at the time of her deposition testimony subsequent to the Sixth
Circuit’s decision reversing this court’s preliminary injunction.
Immediately after the hearing, Plaintiffs’ counsel, Robert Muise and David
Yerushalmi, conferred with one another about what Mr. Muise was certain he had
heard at the hearing: that Defendants’ counsel, Christian Hildebrandt, had
contradicted the factual record when he told the court that Defendant Gibbons was
not a decision maker at the time Plaintiffs’ advertisement was submitted to
SMART up through and including her testimony at the preliminary injunction
hearing as SMART’s Rule 30(b)(6) witness. Plaintiffs’ counsel decided to hold off
responding to this erroneous factual assertion until they could obtain the hearing
transcript to be absolutely certain of Mr. Hildebrandt’s statement.
Plaintiffs’
counsel immediately ordered an expedited copy of the hearing transcript, which
was received on November 27, 2013.
1
Whether Defendant Gibbons was a decision maker at the time of the preliminary
injunction hearing is relevant because her testimony would therefore operate as an
admission against SMART (and not just simply as an admission of a party
opponent).
2
That same day, Plaintiffs’ counsel sent Defendants’ counsel a detailed email,
which included the relevant portions of the hearing transcript wherein the court
queried Mr. Hildebrandt about Defendant Gibbons’ decision-making authority and
wherein Mr. Hildebrandt answered the court in the form of an incorrect factual
assertion that Gibbons was not a decision maker during the relevant time period.
The email also included the relevant portion of Gibbons’ deposition testimony
which contradicts Mr. Hildebrandt’s answer to the court. In this email, however,
Plaintiffs’ counsel made clear that he presumed Mr. Hildebrandt’s incorrect factual
assertion was innocent and asked for a meet-and-confer to discuss one of two
possibilities: Defendants would either join with Plaintiffs in filing a notice of
correction, based on the assumption that the factual assertion was an innocent
misstatement by Mr. Hildebrandt or Plaintiffs would file this motion. (See a true
and correct copy of the November 27 email from Mr. Yerushalmi to Mr.
Hildebrandt attached hereto as Exhibit 2).
After another four emails passed between Plaintiffs’ and Defendants’
counsel later that same day, all counsel agreed that given the Thanksgiving
holiday, counsel would discuss this matter the following Monday, December 2.
(See a true and correct copy of the entire November 27 email thread between
Messrs. Yerushalmi and Hildebrandt attached hereto as Exhibit 3).
3
Late Monday morning, Defendants’ counsel sent an email to Plaintiffs’
counsel contending that SMART did not believe there was any misstatement of
fact, but Mr. Hildebrandt indicated he wished to order the hearing transcript to
examine the issue further and suggested putting off the meet-and-confer until
“sometime next week.” Plaintiffs’ counsel responded that same day by email and
provided Defendants’ counsel not only with the entire hearing transcript (which
would be included as an exhibit to the filing), but with a proposed draft of a joint
notice to correct the record which included the relevant testimony in the record (set
forth in the proposed supplemental brief below). In that email, Plaintiffs’ counsel
explained to Mr. Hildebrandt that this matter could not linger because the court had
taken the cross-motions for summary judgment under advisement, and Mr.
Hildebrandt’s factual assertion tainted the record. After another email exchange
wherein Mr. Hildebrandt sought more time to discuss the matter with SMART,
Plaintiffs’ counsel agreed to extend the meet-and-confer deadline until close of
business Tuesday, December 3.
(See a true and correct copy of the entire
December 2 email thread between Messrs. Yerushalmi and Hildebrandt attached
hereto as Exhibit 4).
Late Tuesday afternoon, Defendants’ counsel sent an email to Plaintiffs’
counsel refusing to join a notice of correction and reasserting that it was SMART’s
position that there had been no misrepresentation. In response, Mr. Yerushalmi
4
telephoned Mr. Hildebrandt in a final effort to resolve the matter jointly but the
conversation ended without resolution. This filing follows.
Therefore, pursuant to E.D. Mich. LR 7.1 and as set forth above, several
conferences were held between the attorneys to be heard on the motion in which
Plaintiffs’ counsel explained the nature of the motion and its legal basis and
requested but did not obtain concurrence in the relief sought.
Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq.
/s/ David Yerushalmi
David Yerushalmi, Esq.
THOMAS MORE LAW CENTER
/s/ Erin Mersino
Erin Mersino, Esq.
Counsel for Plaintiffs
5
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
AMERICAN FREEDOM
DEFENSE INITIATIVE; et al.,
No. 2:10-cv-12134-DPH-MJH
Plaintiffs,
v.
Hon. Denise Page Hood
SUBURBAN MOBILITY
AUTHORITY for REGIONAL
TRANSPORTATION (“SMART”);
et al.,
Magistrate Judge Hluchaniuk
Defendants.
PLAINTIFFS’ SUPPLEMENTAL BRIEF IN FURTHER SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Plaintiffs, by and through their undersigned counsel, hereby present to the
court this supplemental brief in further support of their motion for summary
judgment (Doc. No. 58).
At the hearing on the parties’ cross-motions for summary judgment, held on
November 13, 2013, Defendants’ counsel told the court that Defendant Beth
Gibbons, who had testified at the preliminary injunction hearing as Defendant
SMART’s Rule 30(b)(6) witness, was not a decision maker at SMART either at
that hearing2 or any time prior to that relevant to Plaintiffs’ submission of the
2
Whether Defendant Gibbons was a decision maker at the time of the preliminary
injunction hearing is relevant because Plaintiffs have argued in their motion for
summary judgment, and in opposition to Defendants’ motion for summary
judgment, that to the extent that some portion of Defendant Gibbons’ testimony at
the hearing was not testimony for and on behalf of Defendant SMART as
6
advertisement at issue in this litigation. That assertion of fact is not true and
certainly not supported by the record.3 Defendant Gibbons was a decision maker
in applying Defendant SMART’s advertising policies at the time Plaintiffs’
advertisement was submitted to SMART; she was similarly a decision maker at the
time of her testimony at the preliminary injunction hearing; and she remained a
decision maker at the time of her deposition testimony subsequent to the Sixth
Circuit’s decision reversing this court’s preliminary injunction.
At the hearing on the cross-motions for summary judgment, the court
apparently considered this point material to its decision, and the following
colloquy occurred between the court and Defendants’ counsel:
SMART’s Rule 30(b)(6) designee, Defendant Gibbons was a decision maker at all
relevant times—from the date of Plaintiffs’ advertisement submission through the
present, which includes the time of her testimony at the preliminary injunction
hearing—and, as such, her testimony operates as an admission against SMART
(and not just simply as an admission of a party opponent). (Pls.’ Mot. for Summ. J.
[Doc. No. 58] at 5, 8, 9-10 n.2; Pls.’ Reply Br. in supp. of Mot. for Summ. J. [Doc.
No. 65] at 1 n.1; Pls.’ Opp. Br. to Defs.’ Mot. for Summ. J. [Doc. No. 63] at 11
n.9).
3
While Defendants also make this erroneous statement in their opposition brief to
Plaintiffs’ motion for summary judgment, they provide no reference whatsoever to
the record and as such have presented no evidence to refute the deposition
testimony presented by Plaintiffs. Thus, Defendants have presented no evidence to
support their naked and unsubstantiated assertion that Defendant Gibbons was not
a decision maker (an assertion repeated at the hearing as if it were a fact supported
by the record). (See Defs.’ Opp’n Br. to Pls.’ Mot. for Summ. J. at 1-2 [Doc. No.
62] [asserting that the deposition testimony of Gibbons and Elizabeth Dryden
established that Gibbons was not a decision maker at the relevant time period but
failing to cite to any specific testimony of either deponent notwithstanding the
pinpoint citation to the record testimony in Plaintiffs’ motion for summary
judgment]).
7
THE COURT: Do you think that at the time of the testimony at the
preliminary injunction hearing that SMART had the definition of
“political” that apparently they have at this time?
MR. HILDEBRANDT: Your Honor, there was no written definition
of “political” in place at the time of the preliminary motion, the
preliminary injunction motion such that is the same as was disclosed
in the testimony in this case.
THE COURT: So I want to just understand this, and maybe it
doesn’t really have anything to do with your motion, but it is
important to me to understand it.
MR. HILDEBRANDT: I understand.
THE COURT: For my own benefit. At the time of the preliminary
injunction, there wasn’t any written definition of “political”; is that
right?
MR. HILDEBRANDT: Your Honor, at the time of the preliminary
injunction, there was no separate written definition of “political”.
THE COURT: You put “separate” before it. Was there any written
definition of “political” at that time?
MR. HILDEBRANDT: Well, in the guidelines, “political” is
expressed there, but there is no separate definition beyond the use of
that word “political” –
THE COURT: And you would agree that the witness that appeared
did not give any particular -- point to any particular thing that
informed her about what was political?
MR. HILDEBRANDT: I would agree that the witness that was
provided as the 30(b) witness did not, but she was not part of the
decision-making process at the time. She was not an individual who
was a decision-maker at the time. She had a direct supervisor in the
Marketing Department who was unavailable at the time. And that
person was the decision-maker in the Marketing Department, in the
General Counsel’s Department and in the General Manager’s office.
8
There were decisions, there were different decision-makers, but Beth
Gibbons has never been a decision-maker at any time relevant to
this ad. She was presented as the 30(b)(6) witness and provided
testimony –
THE COURT: When she gave her deposition, would she have been
considered a decision-maker at that time?
MR. HILDEBRANDT: When she gave her deposition post-Sixth
Circuit decision in the discovery of this case?
THE COURT: Well, that is when she gave it.
MR. HILDEBRANDT: All right, that’s fine. Yes, at that time she
was –
THE COURT: Excuse me, Counsel, I want to be really clear so I
understand this. She testified as a 30(b)(6) witness, but she was not
a decision-maker at that time; that is your position, right?
MR. HILDEBRANDT: Well, that is correct, yes.
(Hearing Tr. at 19:12-21:20 at Ex. 1) (emphasis added).
Yet, Defendants’ counsel’s statement to the court contradicts the
unambiguous testimony of Gibbons, who made clear that she was a decision maker
who applied SMART’s advertising policies when SMART received bus
advertisement submissions at the time Plaintiffs’ advertisement was submitted, and
she has remained so throughout, including at the time of her deposition testimony,
which occurred after the preliminary injunction hearing:
Q: And I’ll represent to you that this is the latest deposition notice,
which identified this location for the deposition. In the defendants’
initial disclosures to plaintiffs, they indicated, they identified you as a
potential witness with personal knowledge, and they indicated that
9
you have personal knowledge of SMART’s policies and the
application thereof; is that a correct statement?
A: Yes.
Q: And the policy that will be at issue in this case is the advertising
guidelines; you understand that?
A: Yes.
Q: And do you have personal knowledge of SMART’s application of
the advertising guidelines?
A: Yes.
Q: In fact, in your position as marketing program manager, you
were required at times to apply those guidelines to various
advertising; is that correct?
A: Yes.
Q: And do you still have that responsibility today in the position that
you’re holding now?
A: Yes.
(Gibbons Dep. at 15:19-16:16 [Doc. No. 58-7]) (emphasis added).
Gibbons also testified about her job title as marketing program manager at
the time Plaintiffs’ advertisement was submitted, and she explained that the
difference between her role then as marketing program manager and her current
role as manager of marketing and communications is that today she is responsible
for all SMART advertisements whereas as the marketing program manager she
10
was responsible for a smaller subset of SMART advertisements, which included
bus advertisement submissions such as Plaintiffs’:
Q: Now, ma’am, how are you currently employed?
A: I am the manager of marketing communications at SMART.
Q: How long have you held that position?
A: Five years, I believe.
Q: Was that the position you held when my clients’ advertisement
was presented to SMART for display?
A: No, I had a different title.
Q: And what was your title at that time?
A: I think it was a marketing program manager.
Q: Is the position you hold now, is it an elevated position from the one
you held previously as the marketing program manager?
MR. HILDEBRANDT: Object; vague.
A: Not sure what you mean by “elevated.”
BY MR. MUISE:
Q: Certainly. Who held the position of manager of marketing and
what was the full title you have?
A: Marketing communications. That title didn’t exist at that time.
Q: Well, the title you hold now, was that a promotion from the
position you held previously?
A: Probably.
Q: Is there somebody who is the marketing program manager today?
11
A: No.
Q: How long have you worked with SMART?
A: 20 years.
Q: Are your job duties different from when you were their marketing
program manager to your position now as the manager of marketing
and communications?
A: Yes.
Q: What has changed between the two?
A: I’m now responsible for all of the marketing and communication
that go out to the, externally and internally.
Q: And what were your duty and responsibilities as the marketing
program manager?
A: I was responsible for smaller pieces of programs that we ran.
Q: Was one of those programs advertising on SMART buses and bus
shelters?
A: Yes.
Q: Do you still have responsibility over that advertising in your
present position?
A: Yes.
(Gibbons Dep. at 11:11-13:6 [Doc. No. 58-7]) (emphasis added).
And lest there be any doubt that Defendant Gibbons had decision-maker
authority as the “marketing program manager”—the position she held at the time
Plaintiffs’ advertisement was rejected—Defendant Gibbons testified as follows:
12
Q: You, in your position as the, the previous position, and I guess,
apparently, your position today, as the marketing program manager,
you make determinations, you can or you have made determinations
of whether an advertisement should be displayed or not displayed
based on the advertising guidelines, correct?
A: I usually, if it’s presented to me, send it to legal for an opinion.
Q: But you have the authority to make a determination to run an ad or
not run an ad; isn’t that correct?
A: I could.
(Gibbons Dep. at 23:2-13 [Doc. No. 58-7]) (emphasis added).4
Finally, it is important to point out that there is no evidence whatsoever in
the record contradicting this testimony or in any way suggesting that Gibbons was
not a decision maker.
4
SMART’s Rule 30(b)(6) deposition witness confirmed this fact as well. When
asked to review SMART’s procedure for accepting or rejecting an advertisement,
using the process applied to reject Plaintiffs’ advertisement, the witness confirmed
that Defendant Gibbons—in her prior position as marketing program manager—
had authority to reject an advertisement. (See SMART Dep. at 24:9-26:8
[testifying about the process used to reject Plaintiffs’ advertisement, relying on
Deposition Exhibit 2 (Doc. No. 58-6; Pg ID 1379), and describing the role of Beth
Gibbons in that process] [Doc. No. 58-5]). In particular, SMART’s witness
confirmed as follows:
Q: And I believe you testified previously that in the sequence that you have
described, Beth Gibbons, if she based on her determination concluded that it
violated the content restriction, she could then tell Mr. Hawkins that the
advertisement has been rejected without any further, seeking any further
advice; is that right?
A: That’s correct.
(SMART Dep. at 26:1-8 [Doc. No. 58-5]) (emphasis added).
13
Respectfully submitted,
AMERICAN FREEDOM LAW CENTER
/s/ Robert J. Muise
Robert J. Muise, Esq.
/s/ David Yerushalmi
David Yerushalmi, Esq.
THOMAS MORE LAW CENTER
/s/ Erin Mersino
Erin Mersino, Esq.
Counsel for Plaintiffs
14
CERTIFICATE OF SERVICE
I hereby certify that on December 5, 2013, a copy of the foregoing was filed
electronically. Notice of this filing will be sent to all parties for whom counsel has
entered an appearance by operation of the court’s electronic filing system. Parties
may access this filing through the court’s system.
AMERICAN FREEDOM LAW CENTER
/s/ David Yerushalmi
David Yerushalmi, Esq.
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