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

Filing 85

DECLARATION of Marc Toberoff in Opposition re: 70 MOTION in Limine to Exclude the Expert Report and Testimony of John Morrow.. 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)(Toberoff, Marc)

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

Doc. 85

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. Civil Action No. 10-141 (CM) (KF) DECLARATION OF MARC TOBEROFF IN OPPOSITION TO PLAINTIFFS' MOTION TO EXCLUDE THE EXPERT REPORT AND TESTIMONY OF JOHN MORROW [Hon. Colleen McMahon] [ECF Case]

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.

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DECLARATION OF MARC TOBEROFF I, Marc Toberoff, declare as follows: 1. I am familiar with the facts set forth below and make this declaration in

support of defendants' memorandum of law in opposition to plaintiffs' motion to exclude the expert report and testimony of John Morrow. 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, CA 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" is a true and correct copy of Defendants'

Initial Designation of Expert Witness John Morrow, with the attached Expert Report of John Morrow, served on Plaintiffs' counsel on November 4, 2010. 6. Attached hereto as "Exhibit B" are true and correct copies of excerpts

from the transcript of the May 13, 2010 deposition of Stan Lee, which I attended. 7. Attached hereto as "Exhibit C" are true and correct copies of excerpts

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

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8.

Attached hereto as "Exhibit D" is a true and correct copy of Defendants'

Initial Designation of Expert Witness Mark Evanier, with the attached Expert Report of Mark Evanier, served on Plaintiffs' counsel on November 4, 2010. 9. Attached hereto as "Exhibit E" is a true and correct copy of "Battling the

Kirby Bug" by John Morrow from The Collected Jack Kirby Collector Vol. 1, Bates No. K 00580, produced to Plaintiffs' counsel on May 10, 2010. 10. Attached hereto as "Exhibit F" is a true and correct copy of the cover of

Challengers of the Unknown, No. 1, retrieved from the website "comics.org," and located at http://www.comics.org/series/1293/covers/. I declare under penalty of perjury that to the best of my knowledge the foregoing is true and correct.

Dated: March 25, 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: March 25, 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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