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

Filing 118

DECLARATION of Marc Toberoff 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. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(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,

Civil Action No. 10-141 (CM) (KF)
DECLARATION OF MARC
TOBEROFF IN SUPPORT OF
DEFENDANTS’ OPPOSITION TO
PLAINTIFFS’ MOTION TO STRIKE
[Hon. Colleen McMahon]
[ECF Case]

Defendants.

LISA R. KIRBY, BARBARA J. KIRBY,
NEAL L. KIRBY and SUSAN M. KIRBY,
Counterclaimants,
-againstMARVEL ENTERTAINMENT, INC.,
MARVEL WORLDWIDE, INC.,
MARVEL CHARACTERS, INC., MVL
RIGHTS, LLC, THE WALT DISNEY
COMPANY and DOES 1 through 10,
Counterclaim-Defendants.

I, Marc Toberoff, hereby declare as follows:
1.

I am familiar with the facts set forth below and make this declaration in

further support of defendants’ opposition to plaintiffs’ Motion to Strike. The facts set
forth herein are known to me of my own personal firsthand knowledge and, if called as a
witness, I could and would testify competently thereto under oath.
2.

I am an attorney and the founding partner of Toberoff & Associates, P.C.,

located at 2049 Century Park East, Suite 3630, Los Angeles, California, 90067.
3.

My firm represents Lisa R. Kirby, Barbara J. Kirby, Neal L. Kirby and

Susan M. Kirby (the “Kirbys”), the children of legendary comic book artist and writer
Jack Kirby.
4.

On September 16, 2009, the Kirbys availed themselves of their right under

the Copyright Act to recapture their father’s copyright interests by serving 45 notices of
termination (“Termination Notices”) by first class mail on plaintiffs and all of their
known predecessors and successors-in-interest pursuant to 17 U.S.C. § 304(c).
5.

Attached hereto as “Exhibit A” are true and correct copies of excerpts

from the January 10, 2011 deposition of John Morrow, which I attended.
6.

Attached hereto as “Exhibit B” is a true and correct copy of an article

entitled “The Joe Sinnott Interview” which was “Exhibit 25” at the January 10, 2011
deposition of John Morrow, which I attended.
7.

Attached hereto as “Exhibit C” are true and correct copies of excerpts

from the December 6, 2010 deposition of Mark Evanier, which I attended.
8.

Attached hereto as “Exhibit D” is a true and correct copy of article entitled

“Leave ‘Em Wanting More” which was “Exhibit 23” at the January 10, 2011 deposition

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of John Morrow, which I attended.
9.

Attached hereto as “Exhibit E” is a true and correct copy of plaintiffs’

Initial Disclosures, served on March 10, 2010.
10.

Attached hereto as “Exhibit F” is a true and correct copy of plaintiffs’

Response to Defendants’ Second Set of Interrogatories, served on December 20, 2010.
11.

Attached hereto as “Exhibit G” is a true and correct copy of Defendants’

Objections to Plaintiffs’ Request for the Production of Expert Documents, served
December 15, 2010.
12.

Attached hereto as “Exhibit H” are true and correct copies of excerpts

from The Collected Jack Kirby Collector, Volume 5.
13.

Attached hereto as “Exhibit I” are true and correct copies of excerpts from

The Collected Jack Kirby Collector, Volume 6.
14.

Attached hereto as “Exhibit J” is a true and correct copy of a document

entitled “List of Research Materials in Possession of John Morrow,” produced by
defendants’ expert John Morrow in this action on December 21, 2010.
15.

Attached hereto as “Exhibit K” is a true and correct copy of a letter from

me to plaintiffs’ counsel Randi Singer, dated October 6, 2010.
16.

Attached hereto as “Exhibit L” are true and correct copies of excerpts

from the Objections and Responses of Roy Thomas to Defendants’ Subpoena to Produce
Documents, including “Exhibit A”.
I declare under the penalty of perjury that to the best of knowledge the foregoing
is true and correct.
Dated: April 22, 2011

/s/ Marc Toberoff
___________________________
Marc Toberoff

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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

TOBEROFF & ASSOCIATES, P.C.
/s/Marc Toberoff
By: __________________________________
Marc Toberoff (MT 4862)
2049 Century Park East, Suite 3630
Los Angeles, CA 90067
Tel: [phone]
Attorneys for defendants Lisa R. Kirby, Barbara J.
Kirby, Neal L. Kirby and Susan M. Kirby

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