Saint Louis University v. Meyer

Filing 121

TRANSCRIPT of Motion proceedings held on JUNE 11, 2008 before Judge CAROL E. JACKSON. Court Reporter: GARY BOND, Telephone number 314.244.7980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/25/2009. Redacted Transcript Deadline set for 4/6/2009. Release of Transcript Restriction set for 6/2/2009. (KKS) (KKS).

Saint Louis University v. Meyer

Doc. 121

1

1 2 3 4 5

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION

SAINT LOUIS UNIVERSITY, A MISSOURI BENEVOLENT CORPORATION, PLAINTIFF,

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 COURT REPORTER: 22 23 24 25 AVIS MEYER, DEFENDANT. vs.

) ) ) ) ) ) ) Case No. 4:07-CV-1733-CEJ ) ) ) ) )

-- --- ---- --- ---- ---- --- ---- --- ----

BEFORE THE HONORABLE CAROL E. JACKSON UNITED STATES DISTRICT JUDGE MOTION HEARING JUNE 11, 2008

GARY BOND, RMR, RPR THOMAS F. EAGLETON COURTHOUSE 111 S. TENTH STREET, THIRD FLOOR ST. LOUIS, MISSOURI 63102 314.244.7980

Dockets.Justia.com

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR THE DEFENDANT: FOR THE PLAINTIFF:

APPEARANCES

LEWIS, RICE & FINGERSH BY: FRANK JANOSKI, ESQ. BRIDGET HOY, ESQ. 500 N. BROADWAY, SUITE 2000 ST. LOUIS, MISSOURI 63102-2147 314.444.7600 [e-mail]

POLSTER, LIEDER, WOODRUFF & LUCCHESI, L.C. BY: BRIAN GILL, ESQ. SCOTT SMITH, ESQ. 12412 POWERSCOURT DRIVE SUITE 200 ST. LOUIS, MISSOURI 63131 314.238.2400

3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Janoski?

ST. LOUIS, MISSOURI; JUNE 11, 2008 1:30 p.m. THE COURT: MR. GILL: THE COURT: Good afternoon. Good afternoon, Your Honor. Who is here for the plaintiff, Mr.

MR. JANOSKI: THE COURT: MR. GILL: THE COURT:

Frank Janoski and Miss Hoy. I know you. And for the defendant?

Brian Gill and Scott Smith. You know, this is the first time that

I've ever had to have this kind of a conference with lawyers regarding the appointment of a neutral or the selection of a neutral for ADR. this. You've got three people you've been talking about as possible neutrals, but you can't seem to reach an agreement; and I've just never heard of anything like this. This I think I understand where you all are with

doesn't bode well for your mediation , if you can't even agree on who's going to do the mediating ; but I am hopeful you all can get past this and maybe I can help you get past it. This is really the defendant's motion. So I am

going to hear from defense counsel about why you think the Court ought to pick somebody. MR. GILL: It is the defendant's contention that

this is a trademark dispute, and the mediator that we had

4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

proposed is a trademark attorney who used to work as an in-house counsel and has a practice speciality in trademark law. And, you know, our second issue just basically comes down to cost. The defendant does not object to, you know,

plaintiff's proposal mediators with respect to qualifications. cost. THE COURT: Okay. Well, have you read our Local It just really comes down to an issue of

Rule regarding ADR and what it says with respect to a party who is unable to pay the cost of mediation? MR. GILL: for mediation. Yes, Your Honor. The defendant can pay

We're just trying to make it less expensive

for the defendant. THE COURT: MR. JANOSKI: Well -Well, I had a different impression.

My impression was that the defendant was not able to pay. The defendant mentioned something in its motion about the defendant -- let's see -- that, "For the defendant, cost is an issue in the selection of a mediator; and that the plaintiff has much greater financial resources than the defendant," which I certainly don't doubt. So my impression was that the defendant had some financial constraints that would prevent him from paying the fee -- the billing rate -- of the mediator that the plaintiff

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

had suggested. MR. GILL: The intent of the motion was just to

again stress, you know, that it is a cost issue for the defendant ; but the defendant can pay for mediation. THE COURT: MR. GILL: THE COURT: Okay. All right. Anything else?

No, ma'am. All right. Mr. Janoski or Miss Hoy, do

you want to say anything about this? MR. JANOSKI: Your Honor, I think you pretty much I'm

summed it up when you came out of your chambers. embarrassed to be here today.

I mean in 26 years, I've never

had a more, I guess, ridiculous issue to be before the Court. I think we tried to, but I guess I am not surprised, because I think that the defendant has been difficult in this case. We've learned that they've engaged in spoliation. We have had situations in his deposition where the lack of veracity was unbelievable. going to need an meditator. attorney. In this case, I believe we are Annette Heller is a wonderful But for the

She is a trademark attorney.

mediation of this case, I think that we're going to need someone who has experience in mediation and substantial experience . If this is going to be awhile, I mean if we're going to go through the motions, we're going to do it through ADR, which I know that the Court would not suggest in any way. I

6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

guess it doesn't matter.

But I guess from my client's

standpoint , it does matter; and they want someone who is experienced and has an understanding that it may be a difficult process to go through. be fruitful. And they would like it to

They don't want to be going to court either.

So we kind of understood like the Court did that the defendant couldn't afford mediation. As a matter of fact,

Miss Hoy, you know, talked to Mr. Wiesenthal after they said that Dick Sher was too expensive to try to work him down on his fee. And we even discussed some of the things which he

said would put one side at a disadvantage ; and he didn't suggest that one pay more than the other on this. I had suggested to counsel that maybe they talk to him to see what he could do in the way of accommodation, and they refused to do that. that we're here. So, at this point, I am embarrassed

I am embarrassed that the motion was filed. We would like the mediation

I don't know what else to say.

to be fruitful, but we think because of the circumstances and the personalties that we're going to need someone who has a great deal of experience to try and make this work. THE COURT: All right. Well, there were some There was one of the

attachments to the defendant's motion.

attachments I believe which came from Miss Heller's, I guess, web site; and I know of Miss Heller from her work as a trademark attorney. This has been her life's work as a

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

lawyer.

So there is no question that she's knowledgable in

that area. I also know Mr. Sher. I don't believe he has

practiced in the trademark area, at least not as extensively as Miss Heller has, but in terms of his experience in mediation that's reflected in the attachment which I guess is his profile from his firm's web site. He has even written on

or has been involved in seminars involving mediation in the intellect ual property area. And, finally, there is a profile

of Mr. Wiesenthal, who also has extensive mediation experience including mediation in the trademark area. So I'll tell you what I'm going to do: I'm going to

grant the defendant's motion for a court-designated neutral , and the Court will designate Mr. Sher as the neutral for the mediation of this action. The defendant says he doesn't It is not that he can't

object to Mr. Sher's qualifications. afford him.

He just wants to do it a little more cheaply;

and I am sure you can probably find any number of mediators on the Court's list who charge less per hour. But there is no reason to go back to that list, because I have in front of me information about three people, one of whom is an expert in the trademark area but whose mediation experience is unknown; and that's Miss Heller. then I've got two more who are well-versed in mediation, including some cases involving intellectual property and And

8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

specifically trademark. So be careful what you ask for next time. And, Mr.

Janoski, I understand your embarrassment; but I think that the defendant should also be embarrassed for filing such a motion. You've wasted your client's time. You've wasted

probably some of your client's money; and this is just putting you that much farther behind in your compliance with the Case Management Order. a month ago. You could have had this done over

So my advice to defense counsel is you really

need to think these things through before you file them -MR. GILL: THE COURT: Okay. -- and make a better effort to work All right? I think that our

things out with opposing counsel. MR. JANOSKI:

Your Honor, could I?

ADR is supposed to expire July 1.

Could we have another 30

days, rather than coming back to the Court with a motion? THE COURT: Yes. I'll extend the ADR completion

period 'til August 1st, which will give you all plenty of time to get it done. MR. JANOSKI: THE COURT: MR. JANOSKI: And -And I hope Mr. Sher is available . Right. And I'll check with him as to I have another

his availability and get the dates on this. question, since I've raised this issue.

And I know it is not

before Court at this time but a clarification on the Court's

9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

rules . I know with regard to motions that the Court has stated that a discovery motion must be filed within 15 days of an impasse among the parties. We do have an issue with

regard to spoliation in this case from a deposition last week. I do not have the deposition transcript. Would then

the 15 days go from the date that I would have a transcript that I could cite to the Court? THE COURT: motion? MR. JANOSKI: THE COURT: Yes, there is direct testimony on it. All right. Well, if that's the case, Or I don't know how --

You need the transcript to support your

then I will allow you to file that motion beyond the 15 days, if the transcript is necessary to support it. MR. JANOSKI: Court . THE COURT: MR. JANOSKI: THE COURT: All right. Thank you, Your Honor. You're welcome. We're in recess. I think it would be helpful to the

(Proceedings concluded at 1:44 p.m.)

*

*

*

UNITED STATES OF AMERICA EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION CERTIFICATE

) ) )

ss:

I, Gary Bond, Certified Shorthand Reporter in and for the United States District Court for the Eastern District of Missouri, do hereby certify that I was present at and reported in machine shorthand the proceedings had the 11th day of June, 2008, in the above mentioned court; and that the foregoing transcript is a true, correct, and complete transcript of my stenographic notes. I further certify that I am not attorney for, nor employed by, nor related to any of the parties or attorneys in this action, nor financially interested in the action. I further certify that this transcript contains pages 1 through 9 and that this reporter takes no responsibility for missing or damaged pages of this transcript when same transcript is copied by any party other than this reporter. IN WITNESS WHEREOF, I have hereunto set my hand at St. Louis, Missouri, this 4th day March, 2009.

/s/ Gary Bond Gary Bond, RPR, RMR Certified Shorthand Reporter