Saint Louis University v. Meyer

Filing 73

NOTICE DEFENDANT'S RESPONSE TO PLAINTIFF'S STATEMENT OF ADDITIONAL DISPUTED FACTS: by Defendant Avis Meyer re 65 Response to Motion, (Gill, Brian)

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Saint Louis University v. Meyer Doc. 73 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION SAINT LOUIS UNIVERSITY, a Missouri benevolent corporation, Plaintiff, v. AVIS MEYER, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 4:07-cv-01733 DEFENDANT'S RESPONSE TO PLAINTIFF"S STATEMENT OF ADDITIONAL DISPUTED FACTS (d/e 65) REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO NO MONETARY DAMAGES DUE IN FAVOR OF PLAINTIFF Reply to Additional Disputed Facts Precluding Summary Judgment 9. Immaterial. Meyer's actions of creating and dissolving a non-profit corporation with the Missouri Secretary of State is not use of a trademark that constitutes trademark infringement. Therefore, Meyer's creation of such corporation does not constitute willful trademark infringement. Modular Cinemas of Amer., Inc. v. Mini Cinemas Corp., 348 F.Supp 578, 582 (S.D.NY. 1972). 10. Immaterial. This paragraph is immaterial because it is not a fact, but an opinion that includes a legal conclusion as to the deliberateness and willfulness of Meyer's actions. Murphy v. Missouri Dep't of Corr., 372 F.3d 979, 982 (8th Cir.2004)(court disregards portions of affidavits that purport to state legal conclusions as fact). 11. Immaterial. This alleged "fact" relies on unsupported statements from the self- serving Affidavits of Mr. Weixlmann and Ms. Hoy and, therefore, is immaterial. Meyer objects Dockets.Justia.com to Affidavit of J. Weixlmann, ¶8 as unsupported conclusory allegations. Jeseritz v. Potter, 282 F.3d 542, 545 (8th Cir.2002)(conclusory statements in affidavit do not create genuine issue of material fact). Meyer further objects to Affidavit of B. Hoy, ¶3 and Tab A as hearsay and lacking foundation. Murphy v. Missouri Dep't of Corr., 372 F.3d 979, 982 (8th Cir.2004) (court disregards portions of affidavits that consist of hearsay). Respectfully Submitted, POLSTER, LIEDER, WOODRUFF & LUCCHESI, L.C. By: s/ Brian J. Gill Nelson D. Nolte, #53,470 Scott A. Smith, #55,870 Brian J. Gill, #57,324 12412 Powerscourt Drive, Suite 200 St. Louis, Missouri 63131-3615 (314) 238-2400 (314) 238-2401 (fax) E-mail: nnolte@patpro.com E-mail: ssmith@patpro.com E-mail: bgill@patpro.com ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on November 7, 2008, the foregoing was filed electronically with the Clerk of Court to be served by operation of the Court's electronic filing system upon the following: Frank B. Janoski, #3480 Bridget Hoy, #109375 Lewis, Rice & Fingersh, L.C. 500 North Broadway, Suite 2000 St. Louis, Missouri 63102 T (314) 444-7600 F (314) 241-6056 ATTORNEYS FOR PLAINTIFF s/ Brian J. Gill

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