Baseball Quick, LLC v. MLB Advanced Media. L.P. et al
Filing
79
MEMORANDUM OF LAW in Support re: 78 MOTION for Sanctions or other Relief Pursuant to Rule 56(h).. Document filed by Baseball Quick, LLC. (Murphey, Matthew)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
:
BASEBALL QUICK, LLC,
:
:
Plaintiff,
:
:
v.
:
:
MLB ADVANCED MEDIA, L.P., ET AL.,
:
:
Defendants.
:
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Civil Action No. 11-CV-01735
(TPG)(MHD)
ECF CASE
PLAINTIFF BASEBALL QUICK, LLC’S MEMORANDUM IN SUPPORT OF ITS
MOTION FOR SANCTIONS OR OTHER RELIEF PURSUANT TO RULE 56(H)
TABLE OF CONTENTS
Page
I.
INTRODUCTION ...............................................................................................................1
II.
FACTUAL BACKGROUND ..............................................................................................2
A.
B.
Mr. Mann’s First False Declaration .........................................................................3
C.
Mr. Mann’s Second False Declaration.....................................................................5
D.
III.
MLBAM Misrepresented that No Discovery or Claim Construction would
be Necessary to Support its “Early Summary Judgment” .......................................2
Mr. Mann Acted in Bad Faith ..................................................................................7
ARGUMENT .......................................................................................................................8
A.
This Court Should Sanction MLBAM Under Rule 56(h) Because it
Submitted Declarations That Contain False Statements and Factual
Omissions Directed to the Ultimate Issues in its Summary Judgment
Motion ......................................................................................................................8
1.
2.
This Court Should Ignore Mr. Mann’s Declarations Entirely
Because They Are Inherently Untrustworthy ............................................12
3.
IV.
This Court Should Award BQ Attorney’s Fees and Expenses ...................9
This Court Should Deny MLBAM’s Summary Judgment Motion
with Prejudice and Without Leave to Refile ..............................................13
CONCLUSION ..................................................................................................................13
i
TABLE OF AUTHORITIES
Page(s)
CASES
Ansley v. Greenbus Lines, Inc.,
1997 U.S. Dist. LEXIS 10957 (S.D.N.Y. July 30, 1997) ........................................................10
Bowers v. Rector & Visitors of the Univ. of Va.,
2007 U.S. Dist. LEXIS 75064 (W.D. Va. Oct. 9, 2007)..........................................................10
Jaisan v. Sullivan,
178 F.R.D. 412 (S.D.N.Y. 1997) .........................................................................................9, 10
Johnson v. Radio City Prods., Inc.,
1998 U.S. Dist. LEXIS 9234 (S.D.N.Y. Jun. 16, 1998) ..............................................10, 11, 12
Paddington Partners v. Bouchard,
1991 U.S. Dist. LEXIS 20769 (S.D.N.Y. Dec. 11, 1991) ...................................................9, 12
Penthouse Int’l, Ltd. v. Playboy Enters., Inc.,
86 F.R.D. 396 (S.D.N.Y. 1980) .................................................................................................9
Sussman v. Lewin,
56 F.3d 450 (2d Cir. 1995).......................................................................................................12
United States Liab. Ins. Co. v. Trance Nite Club, Inc.,
2007 U.S. Dist. LEXIS 70613 (E.D.N.Y. Sept. 24, 2007).......................................................12
Villar v. Crowley Maritime Corp.,
990 F.2d 1489 (5th Cir. 1993) .............................................................................................9, 12
Warshay v. Guinness PLC,
750 F. Supp. 628 (S.D.N.Y. Nov. 5, 1990)................................................................................9
Wilder v. GL Bus Lines,
2000 U.S. Dist. LEXIS 9534 (S.D.N.Y. July 11, 2000) ..........................................................10
STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS
Fed. R. Civ. P.
Rule 56(d) ..............................................................................................................................3, 7
Rule 56(g) ..................................................................................................................................8
Rule 56(h) ........................................................................................................................ passim
ii
Plaintiff Baseball Quick, LLC (“Baseball Quick” or “BQ”) provides this memorandum in
support of its motion seeking an order awarding sanctions and other relief against Defendant
Advanced Media, L.P. (“MLBAM”), pursuant to Rule 56(h).
I.
INTRODUCTION
BQ moves the Court for an order granting relief under Rule 56(h) because MLBAM has
in bad faith and for purposes of delay submitted false statements of fact in sworn declarations in
support of its currently pending motion for summary judgment of no infringement (Dkt. 56) that
have unnecessarily burdened this Court and BQ. Specifically, MLBAM has submitted to the
Court two declarations by its Executive Vice President, Content, Mr. Dinn Mann (“Mr. Mann”)
(Dkt. 58, 74), that contain demonstrably false statements of fact directed to the two ultimate
issues raised in its motion. First, Mr. Mann’s sworn statement that “none of MLB Condensed
Games edited by Advanced Media include the final pitch thrown to each player at each
appearance-at-bat” is false as there are numerous such games which include all “final pitches.”
Second, Mr. Mann’s sworn statement that “Advanced Media does not obtain subscribers or
require a subscription of any kind for access to MLB Condensed Games” is also false as
Condensed Games are sold as part of every MLBAM “subscription” package. Mr. Mann’s false
statements were unquestionably made in bad faith as no credible explanation exists for how the
MLBAM Executive in charge of Condensed Games could have not understood these basic facts
about how this product was made and sold.1
As described below, the submission of these declarations was part of a pattern of
misconduct by MLBAM that has included a carefully-orchestrated scheme to obtain a “quick”
summary judgment in this case (and thereby avoid scrutiny of its infringing activities) by:
1
Importantly, Mr. Mann is the only declarant submitting evidence on MLBAM’s behalf, so his lack of
credibility also dooms its summary judgment motion.
1
•
Misrepresenting to the Court at an initial conference that an “early summary judgment
was appropriate” “without discovery” because “no facts are in dispute” and MLBAM
could prove non-infringement under “any possible claim construction”;
•
Stonewalling BQ’s legitimate efforts to obtain the discovery about MLBAM’s infringing
conduct;
•
When filing summary judgment, proposing claim constructions of two key claim terms
despite its prior representations to the Court that no claim construction was necessary;
•
Submitting the first Mann declaration that included false and intentionally deceptive
statements about both the “final pitch” and “subscription” issues in an effort to
demonstrate non-infringement;
•
Forcing BQ in its response to expend significant efforts to “chase down” the various
factual misrepresentations that MLBAM knew were false and to brief the “subscription”
issue that has now been “withdrawn”;
•
After realizing its lies had been discovered, submitting a second Mann declaration that
explicitly admitted the falsity of the “final pitch” representation, but which failed to
address or even acknowledge that the “subscription” representation was also false; and
•
Purporting to “withdraw” the “subscription” portion of the summary judgment motion in
an effort to avoid scrutiny of the false statements submitted to the Court in the first
declaration.
As a result of MLBAM’s bad faith conduct, sanctions are appropriate under Rule 56(h).
The appropriate sanctions include striking and/or disregarding any and all testimony of Mr.
Mann (MLBAM’s sole fact witness/declarant); denying MLBAM’s summary judgment motion
with prejudice and without leave to refile; awarding BQ its expenses, including reasonable
attorney’s fees, associated with the preparation and filing of its opposition to MLBAM’s
summary judgment motion and the bringing of this motion; and such other relief the Court
deems appropriate.
II.
FACTUAL BACKGROUND
A.
MLBAM Misrepresented that No Discovery or Claim Construction Would
be Necessary to Support its “Early Summary Judgment”
At the May 13, 2011 informal status conference, MLBAM represented that the case
should be resolved by “an early summary judgment” (without the need for discovery or claim
construction) because “no facts were in dispute” and MLBAM could demonstrate non2
infringement under “any possible construction of the claims.”2 When filing its summary
judgment motion, however, MLBAM changed course and requested the Court to construe two
claim terms and proposed an overly-narrow and legally-improper construction analysis.
Specifically, in its opening brief, MLBAM requested that the Court construe the claim term
“editing the game recording” to mean that “the final pitch thrown to each player at each
appearance-at-bat” must be included in the “edited recording.” (Dkt. 43, at p. 15-16.) MLBAM
also requested that the claim term “subscribers” be construed to mean “persons that pay for the
right to view the edited recordings.” (Dkt. 43, at p. 18.)3
B.
Mr. Mann’s First False Declaration
In support of its summary judgment motion, MLBAM submitted the initial Declaration of
Dinn Mann in Support of Advanced Media’s Motion for Summary Judgment of No Infringement
(Dkt. 58) (“First Mann Decl.”). The First Mann Decl. contained demonstrably-false statements
submitted in bad faith to mislead the Court into granting “early summary judgment” on the “final
pitch” and “subscription” issues. Specifically, Mr. Mann made at least three false statements –
which, had they mistakenly been accepted by the Court, could have led to an improper grant of
summary judgment. Each of these false statements forced BQ to respond – expending
unnecessary time and effort and wasting valuable real estate in its moving papers.
Each of these statements is presented below followed by a description of the
contradictory evidence presented by BQ and a discussion of the statement’s falsity:
2
BQ challenges MLBAM’s assertion that by granting MLBAM leave to file the early summary judgment
motion, the Court intended to preclude BQ from conducting its own discovery. That is fully addressed in
BQ’s Motion for Relief Under Rule 56(d) (Doc. 64) (“Rule 56(d) Motion”).
3
BQ’s summary judgment opposition brief demonstrates why these proposed claim constructions, which
distort the plain meaning of the claims and seek to import unnecessary limitations from the specification
or prosecution history into the claims, should be rejected. (Dkt. 66.) BQ has also demonstrated in its
Rule 56(d) motion how discovery was necessary because there were numerous material facts in dispute.
(Dkt. 64.)
3
Mann’s False Statement
The First False
Statement: “Accordingly,
as a result of this
subjective editing
process, many plate
appearances are omitted
entirely from every
recording that is edited
by Advanced Media.”
(First Mann Decl. ¶ 6.)
The Second False
Statement: “Since at least
the end of the 2009 MLB
season (November 4,
2009), none of the MLB
Condensed Games edited
by Advanced Media
include the final pitch
thrown to each player at
each appearance-at-bat.”
(First Mann Decl. ¶ 6.)
The Third False
Statement: “Advanced
Media does not obtain
subscribers or require a
subscription of any kind
for access to MLB
Condensed Games.”
(First Mann Decl. ¶ 7.)
Contradictory Evidence
BQ submitted evidence
and testimony, which is
validated by Mr. Mann’s
admission in his second
declaration (see below),
revealing that since at
least 2002, MLBAM has
displayed Condensed
Games that display the
final pitch to very batter,
and thus do not “omit
entirely” “many final plate
appearances” “from every
recording.”
BQ submitted evidence
and testimony that
identified at least 6 games
demonstrating that
statement was untrue, and,
by MLBAM’s own
admission (see discussion
of second declaration,
below), there are at least
15 such games.
BQ submitted evidence
and testimony that
identified numerous
products and platforms
that allow access to
Condensed Games and for
which subscriptions are
sold to viewers. These
include: smart phone
“apps” for the iPhone,
iPad, Android,
Blackberry, as well as
subscriptions to MLB.TV.
4
Comment
Mr. Mann’s statement is not temporally
limited and thus is demonstrably false
because it misrepresents to the Court
that (1) “many plate appearances” (2)
“are omitted entirely” (3) “from every
recording” (4) that is edited by
Advanced Media.” Since MLBAM
does not deny having offered
Condensed Games from at least 2002,
this is an assertion that every one of the
tens of thousands of games recorded
since that time omitted many plate
appearances.
Mr. Mann’s statement is also
demonstrably false based upon the
same evidence described above to
refute Mr. Mann’s First False
Statement. Mr. Mann also essentially
acknowledges that he made no efforts
whatsoever to verify the truth of the
statement prior to submitting the sworn
declaration to the Court, and he
provides no explanation or support for
having made the false statement in the
first instance.
This statement is also demonstrably
false based upon the direct evidence
that MLBAM sells products through
which Condensed Games are made
available and that require the purchase
of a subscription.4 This false statement
is not obviated by Mr. Mann’s
additional statement that Condensed
Games are available “without
subscription and without charge” to
“[a]nyone with an Internet connection”
because, even if true, Mr. Mann still
fails to inform the Court that MLBAM
Mr. Mann made the additional, and related false statement that “[t]he availability of Condensed Games
without subscription and without charge has been in place since at least April 19, 2009.” (First Mann
Decl. ¶ 11). Even if true, however, this reflects an additional bad-faith attempt by Mr. Mann to mislead
the Court by continuing to omit the facts that MLBAM has sold and continues to sell subscriptions to
products through which Condensed Games are available on various platforms.
4
sells a product that does require a
subscription and payment for access to
Condensed Games. Even to this day,
MLBAM’s papers omit this material
and highly relevant fact.
C.
Mr. Mann’s Second False Declaration
Based upon the evidence presented in BQ’s opposition and supporting declarations,
MLBAM was forced to acknowledge the falsity of at least the “final pitch” statements in the
First Mann Decl. However, rather than abandon its quick summary judgment scheme, MLBAM
attempts to avoid and/or erase those misrepresentations in two ways – both of which are wholly
improper and should be rejected by the Court.
First, MLBAM submitted another Declaration of Dinn Mann in Support of Advanced
Media’s Combined Memorandum of Law in Reply in Support of Advanced Media’s Motion for
Summary Judgment of No Infringement (Dkt. 74) (Dkt. 74) (“Second Mann Decl.”). The
relevant parts are presented below.
4.
5.
In that previous declaration I testified that “Since at least
the end of the 2009 [MLB] season (November 4, 2009),
none of the condensed games edited and produced by
Advanced Media include the final pitch thrown to each
player at each appearance-at-bat.” This statement was
consistent with my belief of the facts at the time I made the
statement since including the final pitch thrown to each
player at each at bat is contrary to the goal of the
Condensed Games product and our subjective editing
process.
Upon review of Baseball Quick’s responsive memorandum
of law and supporting declarations, I realized that I may
have been mistaken in my belief that none of the
Condensed Games edited by Advanced Media since the end
of the 2009 MLB season include the final pitch thrown to
each player at each appearance-at-bat. Because of this,
Advanced Media, under my direction, audited all
Condensed Games that were edited and produced by
Advanced Media since the end of the 2009 MLB season.
***
5
10.
As a result of the previously described audit, a minute
subset of Condensed Games was found to include every atbat. Specifically, . . . during the 2010 regular season and
postseason. . . 6 of these Condensed Game recordings
include every at-bat of the underlying baseball game. . .
[and] In the 2011 MLB season, . . . 9 of these Condensed
Game recordings include every at-bat of the underlying
baseball game.
Second Mann Decl. ¶¶ 4, 5, and 10. Thus, Mr. Mann was forced to own up to the “Second False
Statement” and confirm that he falsely stated that none of the Condensed Games display the final
pitch to every batter, as he now concedes there are at least 15 such games since November, 2009.
However, he was very careful to limit the scope of his “mea culpa” to this Second False
Statement. Importantly, he remained silent as to the remaining two false statements, both of
which remain in the record and are not repudiated by Mr. Mann.
Second, MLBAM apparently seeks to cure Mr. Mann’s Third False Statement by
purporting to “withdraw those aspects of its motion” concerning the “no subscriber”
issue. Yet, Mr. Mann’s second declaration failed to address or even mention the lies he
told regarding this issue in his first declaration and thus they remain of record.
Importantly, MLBAM has not withdrawn the false statements in the First Mann Decl.
Indeed, even the so-called “withdrawal” of this portion of the summary judgment has
been carefully worded in an attempt to restrict the scope of that “withdrawal.” See MLBAM
Reply Brief (Dkt. 73), at p. 4 (“Advanced Media concedes that Baseball Quick has created a
genuine issue of fact on the issue of infringement . . . concerning the application of the claim
term “subscription” (at least as to those same 15 [admittedly-infringing] games), and thus
withdraws those aspects of its motion.”) (emphasis added). On the basis of this statement alone,
MLBAM cannot be said to have fully withdrawn that “aspect of its motion,” and there is nothing
6
in this voluntary “withdrawal” that would preclude MLBAM from attempting to resurrect all or
parts of this issue in this or in a subsequent motion.5
D.
Mr. Mann Acted in Bad Faith
While MLBAM has not permitted any discovery, this much is known about Mr. Mann.
He is the “Executive Vice President, Content” at MLBAM and claimed to have “personal
knowledge” of the editing process used to create Condensed Games. (First Mann Decl. ¶ 1, 2).
In the First Mann Decl. he stated several times that a “subjective editing process” was used that
resulted in no Condensed Games including every final pitch to each batter, at least “since the end
of the 2009 MLB Season.” (First Mann Decl. ¶ 6). The First Mann Decl. also stated several
times that “Advanced Media does not obtain subscribers or require a subscription of any kind for
access to MLB Condensed Games.” (First Mann Decl. ¶ 7). The statements in the First Mann
Decl. were unequivocal, unqualified, and specifically relied on by MLBAM to argue summary
judgment was warranted.
In the Second Mann Decl., the story changes and Mr. Mann “realized that I may have
been mistaken” in his “no Condensed Games include every final pitch” statement. (Second
Mann Decl. ¶ 5). While Mr. Mann offers the results of an audit showing he was wrong, he
provides no explanation for why this audit was not performed before the First Mann Decl. With
respect to the “no subscription required” statement, the Second Mann Decl. offers no explanation
for why he made this false statement in the First Mann Decl. and makes no effort to correct the
5
BQ has uncovered evidence that MLBAM is continuing to change Condensed Games over time,
perhaps in an effort to avoid detection of additional infringement. Indeed, as BQ has pointed out in its
Reply Memorandum in Support of its Motion for Relief Under Rule 56(d), filed simultaneously herewith,
MLBAM has removed and/or deleted Condensed Games from its website in the past week – making it
impossible for BQ to verify the report submitted by MLBAM’s “Auditing Team” that those now missing
Condensed Games did not include every final pitch to every batter. (Declaration of Matthew D. Murphey
in Support of Plaintiff Baseball Quick, LLC’s Reply Memorandum in Support of its Motion for Relief
Pursuant to Rule 56(d) ¶ 6).
7
record. This failure is particularly damning because the MLB.com website readily reveals that
Condensed Games are sold as part of every fee-based subscription offered by MLBAM.
Under these facts, the only conclusion that can be drawn is that this MLBAM Executive
acted in bad faith when he signed a false declaration in an effort to mislead this Court.
Particularly as to the “no subscription” falsehood, Mr. Mann must have known that he was lying
when he signed the First Mann Decl. as he must have known the distribution channels for
Condensed Games and that MLBAM makes money every day from subscriptions that include
that product. Mr. Mann’s silence when confronted with his lies supports a bad faith finding.
III.
ARGUMENT
A.
This Court Should Sanction MLBAM Under Rule 56(h) Because it
Submitted Declarations That Contain False Statements and Factual
Omissions Directed to the Ultimate Issues in its Summary Judgment Motion
There can be no dispute that Mr. Mann’s Declarations contain false allegations, omit
facts that are central to the resolution of this case, and were made in bad faith and for purposes of
delay. Accordingly, the Court should sanction MLBAM pursuant to Fed. R. Civ. P. 56(h), which
states:
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied
that an affidavit or declaration under this rule is submitted in bad
faith or solely for delay, the court — after notice and a reasonable
time to respond — may order the submitting party to pay the other
party the reasonable expenses, including attorney’s fees, it incurred
as a result. An offending party or attorney may also be held in
contempt or subjected to other appropriate sanctions.
Fed. R. Civ. P. 56(h) (emphasis added).6
Courts in the Second Circuit have sanctioned parties for submitting false declarations
under Rule 56(h) by ordering them to pay attorney’s fees and expenses incurred and/or by
6
Fed. R. Civ. P. 56(g) was redesignated as Rule 56(h), with some revisions, in the December 2010
amendments to the Federal Rules of Civil Procedure. Any references in this memorandum to Rule 56(g)
as applied by pre-2010 case law shall be understood to refer to the current Rule 56(h).
8
disregarding the declaration entirely as being inherently unreliable. See, e.g., Warshay v.
Guinness PLC, 750 F. Supp. 628, 640-41 (S.D.N.Y. Nov. 5, 1990) (ordering payment of
attorney’s fees and expenses); Paddington Partners v. Bouchard, 1991 U.S. Dist. LEXIS 20769,
*12 (S.D.N.Y. Dec. 11, 1991) (disregarding declaration because it conflicted with prior
deposition history on issue); see also Villar v. Crowley Maritime Corp., 990 F.2d 1489, 1497 n.9
(5th Cir. 1993) (declining to overrule the district court’s decision to disregard an affidavit that
the court found to be “wholly improper and untrustworthy”); Penthouse Int’l, Ltd. v. Playboy
Enters., Inc., 86 F.R.D. 396, 406 (S.D.N.Y. 1980) (sanctioning party by granting motion to
dismiss complaint because party made a mockery of the discovery process, which included, inter
alia, false testimony in an affidavit).
Here, Mr. Mann’s Declarations contain overtly false statements as well as obvious
omissions of material information that are designed to evade liability for patent infringement and
delay these proceedings. Because of the gravity of MLBAM’s false statements and factual
omissions, and its repeated bad faith attempts to short-circuit BQ’s right to discovery and a full
hearing on the merits of this case, the Court should award BQ the attorney’s fees and expenses it
incurred in opposing MLBAM’s summary judgment motion and in the bringing of this motion.7
Further, the Court should exercise its discretion, disregard the Mann Declarations entirely, and
deny MLBAM’s summary judgment motion with prejudice and without leave to refile.
1.
This Court Should Award BQ Attorney’s Fees and Expenses
Courts have awarded attorney’s fees pursuant to Rule 56(h) “where affidavits contained
perjurious or blatantly false allegations or omitted facts concerning issues central to the
resolution of the case.” Jaisan v. Sullivan, 178 F.R.D. 412, 415-16 (S.D.N.Y. 1997) (discussing
7
BQ will, at the appropriate time and in accordance with the Court’s direction, provide its supporting
documentation for the actual amounts of attorney’s fees and expenses that it seeks to recover.
9
cases); Ansley v. Greenbus Lines, Inc., 1997 U.S. Dist. LEXIS 10957, at *9 (S.D.N.Y. July 30,
1997) (ordering payment of attorney’s fees incurred because of filing of false declaration);
Bowers v. Rector & Visitors of the Univ. of Va., 2007 U.S. Dist. LEXIS 75064, *10 (W.D. Va.
Oct. 9, 2007) (“an affidavit is presented in ‘bad faith’ when it knowingly contains perjurious or
intentionally false assertions or knowingly seeks to mislead by omitting facts central to a pending
issue.”); Johnson v. Radio City Prods., Inc., 1998 U.S. Dist. LEXIS 9234 (S.D.N.Y. Jun. 16,
1998).8
The Johnson case is particularly applicable to MLBAM’s misconduct. The plaintiff in
Johnson brought a copyright infringement claim that included allegations that defendant copied
his musical composition without his permission. 1998 U.S. Dist. LEXIS 9234 at *2. In its
summary judgment motion, defendant argued that plaintiff’s claim was barred by the applicable
statute of limitations. Id. at *3. Defendant attached a supporting affidavit averring that the
defendant had not made unauthorized copies of plaintiff’s musical composition during the time
period in question. Id. at *2. Although the summary judgment motion was unsuccessful, the
affidavit made the court’s decision “a close call.” Id. at *3.
Defense counsel discovered that the affidavit included false statements shortly before
trial, as the defendant had, in fact, made unauthorized copies of the plaintiff’s musical score
during the relevant time period. Id. At trial, the affiant acknowledged that at least part of his
affidavit was untrue. Id. at *4. The denial of summary judgment and the discovery of the false
statements prior to trial prevented the false statements from affecting the case’s resolution.
8
Courts generally award sanctions pursuant to Rule 56(h) for “egregious” conduct, and courts have
expressly found that the filing of a false affidavit is sufficiently egregious to warrant such sanctions.
Jaisan, 178 F.R.D. at 415-16; Wilder v. GL Bus Lines, 2000 U.S. Dist. LEXIS 9534, *38 (S.D.N.Y. July
11, 2000) (acknowledging that courts impose Rule 56(h) sanctions for egregious behavior, such as filing
affidavits with blatantly false allegations or omissions of pertinent facts).
10
Nevertheless, the Court decided to impose sanctions pursuant to Rule 56(h) and the court’s
inherent supervisory powers in order to compensate plaintiffs for unnecessary expenses incurred
when opposing parts of the defendant’s summary judgment motion and to adequately punish and
deter the misconduct. Id. The court ultimately awarded plaintiff attorney’s fees and expenses
attributable to responding to the summary judgment motion that relied upon the false affidavit.
Id. at *5. The court further acknowledged that the amount awarded may have overstated the
actual expenses incurred but declined to reduce the award because the sanctions served punitive
and deterrent purposes. Id. at **5-6.
The similarities between the defendant’s misconduct in Johnson and MLBAM’s
misconduct are compelling. In Johnson, the affiant attempted to avoid defendant’s liability for
copyright infringement by falsely swearing that any unauthorized copying of the musical
compositions occurred outside of the applicable statute of limitations. Here, Mr. Mann is
attempting to protect MLBAM from patent infringment by averring that MLBAM’s “Condensed
Games” product never displayed the final pitch to every batter and that MLBAM has no
subscribers. (First Mann Decl. ¶ 6, 7). These self-exculpating averments are both demonstrably
false and were made in bad faith, but they could have determined the outcome of this case if BQ
had not disproven them. Moreover, the defense attorney in Johnson discovered that the affidavit
contained false statements, and the affiant revised his testimony at trial. Here, Mr. Mann only
partially revised his testimony after the falsity of his statements was brought to light. Moreover,
unlike Johnson, the falsity of Mr. Mann’s statements only became apparent after BQ’s counsel
spent considerable time and resources researching Mr. Mann’s averments.
Even though the false statements in Johnson did not ultimately determine the case’s
outcome, the Court used its discretion pursuant to Rule 56(h) and its inherent supervisory powers
11
to compensate the plaintiff and to punish and deter the affiant’s misconduct. Here, the Court
should grant Baseball Quick all of the attorney’s fees and expenses incurred in defending against
MLBAM’s Motion for Summary Judgment and in the bringing of this Rule 56(h) motion, as the
sole evidentiary bases for that motion—Mr. Mann’s Declarations—were submitted in bad faith
and are inherently unreliable. Also, the Court should further consider using its inherent
supervisory powers to issue such an award of fees and expenses to deter and punish such
conduct. Johnson, 1998 U.S. Dist. LEXIS 9234, at **5-6; see also Sussman v. Lewin, 56 F.3d
450, 459 (2d Cir. 1995) (“A court has the inherent power to supervise and control its own
proceedings and to sanction counsel or a litigant for bad-faith conduct.”).
2.
This Court Should Ignore Mr. Mann’s Declarations Entirely Because
They Are Inherently Untrustworthy
MLBAM used declarations that contained false statements in an attempt to short-circuit
this litigation prematurely and deny BQ the opportunity to conduct discovery to fully develop its
case. Mr. Mann swore, under oath, facts within his Declarations that, unless disproven, could
have led this Court to grant its summary judgment motion. As a declarant, Mr. Mann has proven
himself to be wholly untrustworthy. Consequently, the Court should ignore his Declarations
entirely. Paddington Partners v. Bouchard, 1991 U.S. Dist. LEXIS 20769, *12 (S.D.N.Y. Dec.
11, 1991); see also Villar, 990 F.2d at 1497 n.9 (proper to disregard an affidavit found to be
“wholly improper and untrustworthy”).
Accordingly, because the only evidence MLBAM relies upon to support its Motion for
Summary Judgment is unreliable and untrustworthy, the Court should deny that motion and order
MLBAM to participate in discovery. See United States Liab. Ins. Co. v. Trance Nite Club, Inc.,
2007 U.S. Dist. LEXIS 70613, at *22-23 (E.D.N.Y. Sept. 24, 2007) (ruling on summary
judgment motion because no disputed material facts remained after court discredited party’s sole
12
affidavit and deemed it unworthy of consideration because it contained material
misrepresentations).
3.
This Court Should Deny MLBAM’s Summary Judgment Motion with
Prejudice and Without Leave to Refile
As an additional sanction, BQ requests that MLBAM’s summary judgment motion be
denied with prejudice and without leave to refile. MLBAM falsely told this Court on May 13
that an “early summary judgment” was warranted because no facts were in dispute and no claim
construction was warranted. Thereafter, MLBAM has refused any discovery and has caused BQ
unnecessary delay in getting this case started. The record is now clear that there are numerous
disputes about both the material facts and claim constructions that preclude summary judgment.
Under these circumstances, MLBAM should be precluded from further delaying the progress of
taking this case to trial by filing another summary judgment motion on non-infringement.
IV.
CONCLUSION
For at least the reasons set forth above, BQ respectfully requests that this Court: award
BQ its expenses, including reasonable attorney’s fees, associated with its opposition to
MLBAM’s Motion for Summary Judgment and the bringing of this motion; strike and/or
disregard the declarations of Dinn Mann submitted on behalf of MLBAM; deny MLBAM’s
summary judgment motion with prejudice and without leave to refile; and take such other action
the Court deems appropriate under Rule 56(h) or its inherent authority.
Dated: August 12, 2011
/s/ Matthew D. Murphey
Matthew D. Murphey (Pro Hac Vice)
TROUTMAN SANDERS LLP
11682 El Camino Real, Suite 400
San Diego, CA 92130-2092
Telephone: 858.509.6004
Facsimile: 858.509.6040
E-mail: matt.murphey@troutmansanders.com
13
Douglas D. Salyers (Pro Hac Vice )
Paul E. McGowan (Pro Hac Vice )
TROUTMAN SANDERS LLP
600 Peachtree Street, N.E. Suite 5200
Atlanta, GA 30308-2216
Telephone: 404.885.3000
Facsimile: 404.885.3900
E-mail: doug.salyers@troutmansanders.com
E-mail: paul.mcgowan@troutmansanders.com
Timothy P. Heaton
TROUTMAN SANDERS LLP
The Chrysler Building
405 Lexington Avenue
New York, NY 10174-0700
Telephone: 212.704.6417
Facsimile: 212.704.8383
E-mail: timothy.heaton@troutmansanders.com
14
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