Marvel Worldwide, Inc. et al v. Kirby et al

Filing 117

MEMORANDUM OF LAW in Opposition re: 111 MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and 102 (Ex. Y),]. MOTION to Strike Document No. [89 (Ex. B), 92, 94, 97 (Exs. GG, JJ, OO, FFF, JJJ, LLL) and 102 (Ex. Y),].. Document filed by Barbara J. Kirby, Lisa R. Kirby, Neal L. Kirby, Susan N. Kirby. (Toberoff, Marc)

TOBEROFF & ASSOCIATES, P.C.
2049 Century Park East, Suite 3630
Los Angeles, CA 90067
Tel: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendants Lisa R. Kirby, Barbara J.
Kirby, Neal L. Kirby and Susan M. Kirby
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MARVEL WORLDWIDE, INC.,
MARVEL CHARACTERS, INC. and
MVL RIGHTS, LLC,

Plaintiffs,
-againstLISA R. KIRBY, BARBARA J. KIRBY,
NEAL L. KIRBY and SUSAN M. KIRBY,

Defendants.
LISA R. KIRBY, BARBARA J. KIRBY,
NEAL L. KIRBY and SUSAN M. KIRBY,

Counterclaimants,
-against-

MARVEL ENTERTAINMENT, INC.,
MARVEL WORLDWIDE, INC.,
MARVEL CHARACTERS, INC., MVL
RIGHTS, LLC, THE WALT DISNEY
COMPANY and DOES 1 through 10,

Counterclaim-Defendants.

Civil Action No. 10-141 (CM) (KF)
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION TO STRIKE
DECLARATIONS AND CERTAIN
EXHIBITS
[Hon. Colleen McMahon]
[ECF Case]

TABLE OF CONTENTS
INTRODUCTION .............................................................................................................1
ARGUMENT.....................................................................................................................1
I.

The Declarations of Joe Sinnott and James Steranko Are Proper .........................1

II.

The Kirbys’ Supporting Exhibits Were Properly Disclosed During
Discovery ...............................................................................................................6

CONCLUSION................................................................................................................11

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TABLE OF AUTHORITIES
Federal Cases
Coleman v. Keebler Co.,
997 F. Supp. 1102 (N.D. IN. 1998) .....................................................................................4
Gayle Martz, Inc. v. Sherpa Pet Group, LLC,
2009 U.S. Dist. LEXIS 80929 (S.D.N.Y. Sep. 2, 2009).................................................. 7-8
Highland Capital Mgmt., L.P. v. Schneider,
551 F. Supp. 2d 173 (S.D.N.Y. 2008)..................................................................................4
Sealy v. Gruntal & Co.,
1998 U.S. Dist. LEXIS 15654 (S.D.N.Y. Oct. 7, 1998) ......................................................4
Federal Statutes, Rules and Regulations
F.R.C.P. 26(e)(1)(A) .................................................................................................. passim
F.R.C.P. 26, Notes of Advisory Committee on 1993 Amendments ................................ 3-4
Other Authorities
Schwarzer, Tashima, Wagstaffe,
Federal Civil Procedure Before Trial, § 11:1245 (Rutter Group 2010)..............................3
8A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2049.1 (2010)...............................................................4
6-26 Moore’s Federal Practice – Civil § 26.132[4] ............................................................4

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INTRODUCTION
Defendants/counterclaimants Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and Susan
M. Kirby (“Kirbys”), the children of renowned comic book artist Jack Kirby (“Kirby”), hereby
oppose plaintiffs/counterclaim-defendants Marvel Worldwide, Inc., Marvel Characters, Inc. and
MVL Rights LLC, together with counterclaim-defendants The Walt Disney Company and
Marvel Entertainment, Inc.’s (collectively, and including predecessors, “Marvel”) motion to
strike the (1) the declarations of Joe Sinnott and James Steranko and (2) certain documents
Marvel erroneously claims were never produced in this action. Both witnesses were disclosed by
Marvel during Marvel’s deposition of the Kirbys’ expert witnesses, John Morrow and Mark
Evanier. Marvel’s claims that certain documents cited by the Kirbys were not “produced” also
misrepresents the record, as such documents were properly disclosed during discovery. These
declarations and exhibits are all properly before this Court and Marvel’s motion to strike should
be denied in its entirety.
ARGUMENT
I.

The Declarations of Joe Sinnott and James Steranko Are Proper
Marvel’s objection to the declarations of Joe Sinnott and James Steranko, on the basis

that the Kirbys did not list them as witnesses in their Rule 26 initial disclosures (“Initial
Disclosures”) and/or did not amend such disclosures to include the witnesses, is unfounded.
These individuals were brought up by Marvel as potential witnesses during the depositions of the
Kirbys’ experts, John Morrow and Mark Evanier. For example, Marvel specifically questioned
Mr. Morrow at his January 10, 2011 deposition about a December 18, 1995 interview he
conducted of Mr. Sinnott, who worked extensively with Marvel during the operative 1958-1963
period in question (“Time Period”). Declaration of Marc Toberoff (“Tob. Dec.”) Ex. A at

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262:10-263:4. The interview was Exhibit 25 to the deposition. Tob. Dec., Ex. B (“Joe Sinnott
Interview”). Mr. Morrow’s interview was published in his magazine, The Jack Kirby Collector,
No. 9. Id., Ex. A at 262:22-23.
In response to Marvel’s questioning, Mr. Sinnott was also discussed by the Kirbys’
expert Mark Evanier in his December 6, 2010 deposition:
Q: Who else have you talked to?
A: About?
Q: About Marvel history.
A: Marvel History? Every year I go to the Comic Convention in San Diego and talk to
dozen, if not hundreds, of people about Marvel history …. I talked to a pretty large
percentage of people who worked for Marvel or worked freelance for Marvel …. People
I have talked to about Marvel: Steve Ditko, Don Heck, Wally Wood, Gene Colan, John
Buscema, Saul Buscema, Marie Severin, Did I say Roy Thomas, Gary Friedrich, Alan
Brodsky, Sol Brodsky, Janice Cohen, John Verpooten, Tony Mortellano, Herb Trimpe,
Chick Stone, Joe Sinnott, Frank Giacoia, Mike Esposito, Barry Smith…”
Tob. Dec. Ex. C at 20:12-21:16 (emphasis added). Marvel followed up by asking Mr. Evanier:
Q: Do you know who the people were who worked at Marvel between ‘58 and ‘63 that
you talked to?
A: Are you talking about people in the office or talking about freelancers?
Q: Either.
***
A: …People who did freelance work for Marvel during ‘58 and ‘63 would include
Jack Kirby, Steve Ditko, Don Heck, Dick Ayers, Gene Colan, Vince Colletta, Russ
Heath, Stan Goldberg…Joe Sinnott, Larry Lieber, Don Rico. I think George Roussos…”
Id., Ex. C at 22:17-22; 22:23-23:25 (emphasis added).
Mr. Morrow was similarly questioned by Marvel at his deposition about an article he had
written involving James Steranko. Id., Ex. A at 256:8-259:6. The article was an introduction to
a collection of Nick Fury Agent of S.H.I.E.L.D. comics published by Marvel and was marked by
Marvel as an exhibit at Mr. Morrow’s deposition. Tob. Dec. Ex. A at 256:8-16, Ex. D. “Nick
Fury” is one of the characters at issue in this case. See Complaint at ¶ 14. Marvel questioned Mr.
Morrow about the article’s contents, focusing on Jack Kirby allegedly “filling in” for Mr.

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Steranko on a comic book when Mr. Steranko was “running late” on a publishing deadline. Id.,
Ex. A at 256:8-259:6. Marvel then asked several questions directed at bolstering their theory
that Marvel bore the financial risk of creation because it had deadlines. For instance:
Q: And [Kirby’s pages] were intended as an assurance against Jim Steranko not turning
in his pages on time?
A: Not assurance exactly, they thought Mr. Steranko wasn’t going to turn in his pages
in time and had to get the issue out on time, so they turned to Jack Kirby, knowing he
could turn a story around in a weekend.
Id., Ex. A at 257:6-12.
In fact, Marvel’s specific questioning of the Kirbys’ experts as to Mssrs. Sinnott and
Steranko, and reliance on exhibits concerning these individuals, caused the Kirbys to do research
as to them.
In light of the above, Marvel cannot complain that the Kirbys did not supplement their
Initial Disclosures to include Mssrs. Sinnott and Steranko as persons “likely to have discoverable
information.” F.R.C.P. 26(a)(1)(A)(i). Marvel was clearly more aware than the Kirbys that
these witnesses had relevant information regarding this case and could have readily taken their
depositions if it so desired. Notably, “the duty to supplement does not apply if the additional or
corrective information has otherwise ‘been made known to the other parties during the discovery
process or in writing.’” Schwarzer, Tashima, Wagstaffe, Federal Civil Procedure Before Trial, §
11:1245 (Rutter Group 2010), quoting F.R.C.P. 26(e)(1)(A). If, as here, “the identity of a new
witness who had not been disclosed in the early disclosure…may have ‘been made known’
through deposition testimony … no duty to supplement is required.” Id. See also F.R.C.P. 26,
Notes of Advisory Committee on 1993 Amendments (“There is, however, no obligation to
provide supplemental or corrective information that has been otherwise made known to the
parties in writing or during the discovery process, as when a witness not previously disclosed is

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identified during the taking of a deposition or when an expert during a deposition corrects
information contained in an earlier report.”) (emphasis added).
This is consistent with numerous other cases decided in this district. See Highland
Capital Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 202 (S.D.N.Y. 2008) (denying a motion
in limine to exclude a witness who was not disclosed pursuant to Rule 26 in part because the
witness became known to the opposing party during discovery through the production of
documents); Sealy v. Gruntal & Co., 1998 U.S. Dist. LEXIS 15654, at *4–5 (S.D.N.Y. Oct. 7,
1998) (failure to supplement an interrogatory answer to list witnesses did not merit their
preclusion because all but one of the witnesses were identified in pretrial deposition testimony).
See also 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2049.1
(2010) (“As to material omissions [from initial disclosures], further disclosures are only
necessary when the omitted or after-acquired information ‘has not otherwise been made known
to the other parties during the discovery process.’ ”) (quoting F.R.C.P. 26(e)(1)(A)); 6-26
Moore’s Federal Practice – Civil § 26.132[4] (“If a party or party’s attorney believes that the
adverse party already knows the information to be updated by supplementation or correction, the
court may well determine, in its sound discretion, that there is no violation of Rule 26(e).”);
Coleman v. Keebler Co., 997 F. Supp. 1102, 1107 (N.D. IN. 1998) (“The duty to supplement
does not require an application of form over substance.”).
Both Messrs. Steranko and Sinnott were plainly “made known to the other parties during
the discovery process or in writing.’” F.R.C.P. 26(e)(1)(A). Accordingly, the Kirbys were not
required to gratuitously supplement their Initial Disclosures, and Steranko and Sinnott’s
testimony cannot be stricken on this basis. It was only after Marvel brought up these witnesses’
names and produced interviews and other documents relating to them that the Kirbys, after

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further investigation, elected to call Mssrs. Sinnott and Steranko to rebut Marvel’s claims.
Marvel also weakly argues that Mssrs. Steranko and Sinnott’s testimony is “cumulative.”
This argument is strange, as Marvel, itself, has proffered at least four witnesses that worked for
Marvel both during the Time Period and outside it: Stan Lee, Larry Lieber, Roy Thomas and
John Romita. It is entirely proper for the Kirbys to offer testimony from other freelancers from
the Time Period (Sinnott) and just after it (Steranko). These witnesses can properly testify to
their personal knowledge of how Marvel treated them and other freelancers during the 1960s and
into the 1970s. See Declaration of Joe Sinnott (Docket No. 92) at ¶¶ 3-15; Declaration of James
Steranko (Docket No. 94) at ¶¶ 4-16.
Lastly, Marvel’s hyperbolic claims of “sandbagging” or prejudice are not credible in light
of the fact that Marvel had more advance knowledge than the Kirbys of these witnesses but did
not bother to depose them; nor did it bother to depose several witnesses the Kirbys did list in
their Initial Disclosures, including Mssrs. Colan and Ayers – freelance artists who indisputably
worked with Marvel during the Time Period and knew Jack Kirby. See Declaration of Jodi
Kleinick, Ex. 1 at 1-2; F.R.C.P. 26(a)(1)(A)(i). In fact, Marvel, which, at the time of the Initial
Disclosures, had far greater knowledge of potential witnesses and control over relevant
information, should arguably have included in their Initial Disclosures Mssrs. Sinnott and
Steranko, plus freelance artists such as Stan Goldberg, Gene Colan, and Dick Ayers, who worked
with Marvel in the Time Period. Marvel listed none of these witnesses, even though it knew
them to be persons “likely to have discoverable information” relevant to this important case.
Tob. Dec., Ex. E at 1-2. F.R.C.P. 26(a)(1)(A)(i).
Hypocritically, Marvel seeks to bar the testimony of Mssrs. Steranko and Sinnott, even
though Marvel relied on the testimony of Larry Lieber in support of its summary judgment

5

motion and listed Lieber as a witness in the Joint Pretrial Order (at 92), but did not list Mr.
Lieber in its Initial Disclosures nor supplement such disclosures to include Mr. Lieber. Tob.
Dec. Ex. E at 1-2. Even in response to the Kirbys’ explicit interrogatory requesting the identity
of all witnesses on which Marvel intended to rely, Marvel did not disclose Mr. Lieber nor ever
amend its interrogatory response pursuant to F.R.C.P. 26 (e)(1)(A) to include Mr. Lieber. Tob.
Dec. Ex. F at 2. Of course, the Kirbys did not and would not seek to preclude Mr. Lieber on the
grounds advanced here by Marvel, because he had “been made known” to them “during the
discovery process or in writing.” F.R.C.P. 26(e)(1)(A).
II.

The Kirbys’ Supporting Exhibits Were Properly Disclosed During Discovery
Morrow Decl., Ex. B: The Fantastic Four: The Lost Adventure comic book, Exhibit B to

the Declaration of John Morrow (Docket No. 89), is also properly before this Court. Marvel
seeks to exclude the comic book on the basis that the Kirbys’ expert John Morrow did not
formally produce it. However, Mr. Morrow discussed his considerable involvement with this
particular comic book in detail in his expert report:
In 2006, Marvel Comics requested my assistance in re-assembling an entire
unpublished Fantastic Four story by Jack Kirby. The genesis of this project was
an article I wrote about this unused story in my publication, The Jack Kirby
Collector, in 1996. Prior to my 1996 article, the unused Fantastic Four story was
unknown to the public at large, and to the then-current Marvel Comics editorial
department. The story was originally drawn and plotted by Kirby as his next-tolast issue of Fantastic Four, but it was rejected and went unused and unpaid.
Sections of the story were eventually cut up, rearranged, and used as part of a
later issue of Fantastic Four after Kirby was no longer working with the
company, and much of the remaining art was lost over time until I was able to
track it down in private collections, for use in my 1996 article. Marvel paid me to
update my Jack Kirby Collector article, which was used as both as an Afterword
in a Fantastic Four reprint collection in 2006, and an introduction to the standalone Fantastic Four: The Lost Adventure #1 comic book in 2008, wherein
Marvel commissioned Stan Lee to finally add dialogue to Kirby’s plotted/penciled
pages, over 35 years after Kirby drew them. In the course of this project, Marvel
paid Jack Kirby’s estate $325 per page for the use of that unused story Kirby drew
in 1970.

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Declaration of John Morrow (“Mor. Dec.”), Ex. A at 3-4.
Not surprisingly, Marvel asked Mr. Morrow about this particular passage during its
deposition of him:
Q: Let me direct your attention to page three of your report…and specifically to
the sentence [that] appears to be the third sentence in the second full paragraph
which I’ll read for the record, “Prior to my 1996 article, the unused Fantastic Four
story was unknown to the public at large and to the then current Marvel Comics
editorial department.” What is the factual basis—well, first of all, let me ask you,
is it intended by you to be a statement of fact that the current Marvel editorial
board was unaware of the unused story?
A: Yes.
Q: And that’s a statement of fact?
A: Yes.
Q: And how—what is the basis for that statement of fact?
A: The main basis for that is Tom Brevoort, who is an editor, or still is an editor
up at Marvel, when he contacted me about reassembling that story, the sense I got
from our discussion was that prior to my doing an article in 1996, they didn’t even
know about the story. As for the public at large, same thing, all of those letters of
comment that we got to our publication, after we published that article…[they]
said wow, we had no idea there was an unused Fantastic Four story out there. The
fact that Marvel bills this publication as this lost Fantastic Four story further leads
me to conclude that no one knew about this thing.
Tob Dec., Ex. A at 137:20-139:4. See also, Ex. A at 91:13-92:5. This comic book was recently
manufactured and sold by Marvel and already in its possession. Mor. Dec., Ex. B. Accordingly,
Marvel’s own comic book did not need to be produced back to it as it had already “been made
known to [Marvel] during the discovery process or in writing.” FRCP 26(e)(1)(A).1 See Gayle
Martz, Inc. v. Sherpa Pet Group, LLC, 2009 U.S. Dist. LEXIS 80929, at *21–22 (S.D.N.Y. Sep.
2, 2009) (Evidence not excluded when “any corrective information that [Plaintiff] might have
provided in supplements to its discovery responses was at all times known to Defendants...”). In

1

Moreover, in response to Marvel’s requests for expert documents the Kirbys objected:
“Defendants object to the Document Request to the extent it seeks the production of…documents
or information already in Plaintiffs’ possession…” Tob. Dec., Ex. G at ¶ 7. Marvel never
moved in response to this objection.
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light of these factors, the comic book is properly before this Court.
Toberoff Decl., Exhibits Y, GG, JJ and OO: Exhibits Y, GG, JJ, and OO are all excerpts
from The Collected Jack Kirby Collector, Volume 5 and Volume 6. These documents were
disclosed and specifically made available to Marvel by Mr. Morrow pursuant to its subpoena of
his records. Tob. Dec., Ex. A at 249:3-18; 250:5-9, Ex. J. The Collected Jack Kirby Collector is
edited and published by Morrow, a fact well known to Marvel as it has relied on Mr. Morrow for
expert advice and forwards to Marvel’s publications over the years. Mor. Dec., Ex. A at 2-4.
Mr. Morrow nonetheless disclosed in his expert report that he has produced 55 issues of The
Jack Kirby Collector, many of which he has “collated” into seven volumes called The Collected
Jack Kirby Collector. Mor. Dec. Ex. A at 1-2. The Collected Jack Kirby Collector Vol. 5
contains issues 20-22 of The Jack Kirby Collector, while The Collected Jack Kirby Collector
Vol. 6 contains issues 23-26 thereof. Tob. Dec. Exs. H; I.
In response to Marvel’s subpoena, Mr. Morrow produced a very detailed list to Marvel on
December 21, 2010 entitled “List of Research Materials in Possession of John Morrow” that
relate to Jack Kirby, and stated therein that he had “complete runs” of The Jack Kirby Collector.
Tob. Dec. Ex. J at Bates no. JM282-285. Due to the voluminous nature of material relating to
Jack Kirby, the parties had established a practice with respect to other witnesses, like Roy
Thomas and Mark Evanier, whereby in response to a subpoena, witnesses would supply lists of
such periodicals or books relating to Jack Kirby so the subpoenaing party could chose which to
inspect and/or have copied. Tob. Dec. Ex. K;2 Ex. L.
Although Marvel received Mr. Morrow’s detailed list, which included all issues of The
Jack Kirby Collector and all volumes of The Collected Jack Kirby Collector, it did not ask for or
2

The Kirbys’ expert Mark Evanier also disclosed and made available for copying issue nos. 1-54
of The Jack Kirby Collector, which, again, Marvel chose not to copy. Id.
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arrange that these be copied, but did ask for three documents set forth on the list. Tob. Dec. Ex.
A at 249:3-250:15.
Marvel questioned Mr. Morrow about the list at his deposition:
Q: I place before you Exhibit 19, which bears production numbers JM282 through
285. Is this a document you prepared?
A: Yes.
Q: And it’s headed list of research materials in possession of John Morrow. What
was the purpose of your preparation of this document?
A: You had sent a request for documentation from…people doing the expert
reports, which Mr. Toberoff’s office forwarded to me, and if I’m remembering
correct, I believe part of that request was you guys were asking for this.
Q: Where are the documents that are identified in Exhibit 19?
A: The items listed are all in my home about 20 miles from here.
Tob. Dec. Ex. A at 249:3-22.
Marvel then requested other documents from Mr. Morrow’s list, but did not request any
volumes of The Collected Jack Kirby Collector:
Mr. Fleischer: Let me make a request for the record for copies of the Birnbaum
interview identified under item five … So the other ones on this document that
I’d like to see are the documents under—identified in number seven on Exhibit
19, number 10 and 11.
Id., Ex. A at 249:23-250:15. Marvel cannot selectively request documents, and then complain
about documents that it was aware of, but did not simply ask for.
Marvel’s own witness Roy Thomas listed having issues nos. 1-54 of The Jack Kirby
Collector, as well as the first five volumes of The Collected Jack Kirby Collector, in his own
disclosure. Id., Ex. L. Marvel has itself cited to The Jack Kirby Collector, No. 54 in support of its
motion for summary judgment. See Declaration of Randi Singer, Ex. 42. Accordingly, it is
indisputable that Marvel was aware of these documents, that such were made available to them
for inspection and copying and that it chose not to review them.
To all of these exhibits, Marvel also offered a boilerplate “inadmissible hearsay”

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objection, which is too general to be meaningful. The interviews of Jack Kirby (Exs. JJ and OO)
are properly before the Court as they are not offered for the proof of the matter asserted - that
Kirby did write or script the material he submitted to Marvel - but to show Kirby’s state of mind
at the time regarding his relationship with Marvel. FRE 803. As Kirby is dead, it is no surprise
that Marvel itself extensively relied on alleged “hearsay” statements made by Kirby in interviews
in support of its motion. See Singer Decl. Ex. 39 at MARVEL0018273, Exs. 41, 43 (Interviews
with Jack Kirby). Marvel’s hearsay objection to Exhibit GG is strange. The Kirbys offered this
exhibit to show how Kirby’s famous margin notes were replicated in the actual dialogue balloons
of his stories (Ex GG at 193) in opposition to Marvel’s own reliance on a different set of margin
notes. See Singer Decl. Ex. 42 at MARVEL0017976) See also Opp. 56.1 Statement at ¶ 63.
Accordingly, Marvel’s rote objections should not be sustained.
Exhibit LLL: Exhibit LLL is the copy of the cover of Challengers of the Unknown, No.
1. Again, this comic book, drawn by Kirby, was discussed by both Mssrs. Morrow and Evanier
in their expert reports as a precursor to The Fantastic Four. Mor. Dec., Ex. A at 11 (“Many view
The Fantastic Four as a descendant of Kirby’s Challengers of the Unknown due to parallels
between the works, particularly in a story that first appeared in Challengers of the Unknown # 2
(Aug./Sept 1958), several years before the debut of the Fantastic Four in November 1961.”);
Declaration of Mark Evanier (Docket No. 88), Ex. A at 14-15 (“Like Fantastic Four,
Challengers of the Unknown depicted the adventures of four people who form a team after
surviving an air crash.”) (emphasis added). Again, Marvel questioned both Mssrs. Morrow and
Evanier extensively about this comic book at their depositions. Tob. Dec., Ex. A at 184:14-186:2;
Ex. C at 228:16-231:9. Therefore, Marvel’s cries of prejudice, especially over the mere cover to
a comic book it discussed and had ready access to, ring hollow.

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Exhibit JJJ: Exhibit JJJ consists of true and correct copies of excerpts from the 1963
treatise Nimmer on Copyright by Melville B. Nimmer, which was provided as a convenience to
the Court due to the age of the treatise and its possible unavailability. It is not customary nor
required that a party attach copies of the legal authorities it is citing. Considering that Marvel is
not disputing the authenticity of this exhibit, it is plainly admissible.
Exhibit FFF: Finally, Exhibit FFF is a true and correct copy of an article entitled “Jack
Kirby: A By-the-Month Chronology” for the periods 1950-1959 and 1960-1964 from the online
database marvelmasterworks.org. This exhibit lists comic books Jack Kirby did during these
years. First, the site itself claims it is for “promotion of the Masterworks, Essentials and trade
paperback line of books as well as Marvel Comics and their properties.” Second, this exhibit is
merely expanding upon the list Marvel produced in this action in the book The Art of Jack Kirby
(MARVEL0018249). See Declaration of Marc Toberoff in Opposition to Summary Judgment
(Docket No. 102), Ex. X at MARVEL0018462-66 (“Jack Kirby Publication Timeline”).
CONCLUSION
For the foregoing reasons, Marvel’s motion to strike should be denied in its entirety.

Dated: April 22, 2011

Respectfully submitted,
TOBEROFF & ASSOCIATES, P.C.
/s/ Marc Toberoff
Marc Toberoff
2049 Century Park East, Suite 3630
Los Angeles, California 90067
Tel.
[phone]
Facsimile: [phone]
E-mail:
[e-mail]
Attorneys for defendants
Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby and Susan M. Kirby

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing was served electronically by the
Court’s ECF system and by first class mail on those parties not registered for ECF pursuant to
the rules of this court.
Dated: April 22, 2011

Respectfully submitted,
TOBEROFF & ASSOCIATES, P.C.
/s/ Marc Toberoff
Marc Toberoff
2049 Century Park East, Suite 3630
Los Angeles, California 90067
Tel.
[phone]
Facsimile: [phone]
E-mail:
[e-mail]
Attorneys for defendants
Lisa R. Kirby, Barbara J. Kirby, Neal L.
Kirby and Susan M. Kirby

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