Assessment Techs. Inst., LLC v. Parkes

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Citation588 F.Supp.3d 1178
Decision Date05 January 2022
Parties ASSESSMENT TECHNOLOGIES INSTITUTE, LLC, Plaintiff, v. Cathy PARKES d/b/a Level Up RN, Defendant.
Docket NumberCase No. 19-2514-JAR

588 F.Supp.3d 1178

Cathy PARKES d/b/a Level Up RN, Defendant.

Case No. 19-2514-JAR

United States District Court, D. Kansas.

Signed January 5, 2022
Filed March 2, 2022

588 F.Supp.3d 1188

Andrew S. Ong, Pro Hac Vice, Indra Neel Chatterjee, Pro Hac Vice, Goodwin Procter, LLP, Redwood City, CA, Anna Hales, Pro Hac Vice, Goodwin Procter, LLP, Los Angeles, CA, Brett M. Schuman, Pro Hac Vice, Jeremy N. Lateiner, Pro Hac Vice, James Lin, Pro Hac Vice, Nicholas M. Costanza, Pro Hac Vice, Goodwin Procter, LLP, San Francisco, CA, Jenny J. Zhang, Pro Hac Vice, Goodwin Procter, LLP, Washington, DC, Sean William Colligan, Timothy J. Feathers, Robin K. Carlson, Stinson, LLP, Kansas City, MO, for Plaintiff.

Christopher J. Seibold, Brown & James, PC, Kansas City, MO, Elizabeth Silker, Steven H. Schwartz, Pro Hac Vice, Brown & James, PC, St. Louis, MO, for Defendant.



In this lawsuit, Plaintiff Assessment Technologies Institute, LLC ("ATI") brings the following claims against Defendant Cathy Parkes, doing business as Level Up RN, arising out of her sale and distribution of nursing-education study material: copyright infringement under the Copyright Act, misappropriation of trade secrets under the Defend Trade Secrets Act ("DTSA") and the Kansas Uniform Trade Secrets Act ("KUTSA"), unfair competition under Kansas law, and breach of contract under Kansas law. Before the Court are Plaintiff's Motion for Partial Summary Judgment (Doc. 295), Defendant's Motion for Summary Judgment (Doc. 298), and Defendant's Motion for Leave to File Sur-Reply in Opposition to Plaintiff's Motion for Partial Summary Judgment (Doc. 351). For the reasons explained fully below, the Court grants Defendant's motion for leave to file surreply, denies Plaintiff's motion for summary judgment, and grants in part and denies in part Defendant's motion for summary judgment.

I. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.1 In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.2 "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party."3

588 F.Supp.3d 1189

A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."4 An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party."5

To prevail on a motion for summary judgment on a claim upon which the moving party also bears the burden of proof at trial, the moving party must demonstrate "no reasonable trier of fact could find other than for the moving party."6 Defendant raises several affirmative defenses in response to Plaintiff's motion for summary judgment that are not separately raised in Defendant's motion for summary judgment. In considering these affirmative defenses, the Court is mindful that

when the plaintiff moves for summary judgment on an entire claim, it is necessarily also moving for summary judgment on any affirmative defenses to that claim. It is therefore incumbent on a defendant that wishes to prevent entry of summary judgment on the claim to come forward with evidence showing the existence of a genuine factual dispute concerning an affirmative defense that, if ultimately successful, would defeat the claim.7

Thus, the Court rejects Plaintiff's contention that the Court should not consider the affirmative defenses invoked in Defendant's response to Plaintiff's motion for summary judgment because they were not raised in Defendant's own motion for summary judgment. The Court considers whether Defendant has come forward with evidence showing a genuine issue of material fact concerning an affirmative defense that would defeat Plaintiff's claims if successful.

Finally, summary judgment is not a "disfavored procedural shortcut;" on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."8 In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."9

II. Factual Background

A. Evidentiary Rulings

Before reciting the uncontroverted facts in this matter, the Court must rule on the following evidentiary issues: (1) Defendant's authentication and foundation objections; (2) Plaintiff's hearsay objections; and (3) Plaintiff's objections to Defendant's affidavit as self-serving. In considering these objections, the Court is mindful that summary judgment evidence need not be "in a form that would be admissible at trial."10 But "the content or

588 F.Supp.3d 1190

substance of the evidence must be admissible."11 As the advisory committee note to the 2010 Federal Rule amendment explains: "The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated."12 "The requirement is that the party submitting the evidence show that it will be possible to put the information, the substance or content of the evidence, into an admissible form."13

1. Defendant's Authentication and Foundation Objections

Defendant objects that several exhibits Plaintiff offers in support of its motion for summary judgment are not properly authenticated. To meet the authentication requirement in Fed. R. Evid. 901(a), "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."14 An affidavit is not required to authenticate every document submitted with a motion for summary judgment.15 "[D]ocuments produced during discovery that are on the letterhead of the opposing, producing party are authentic per se for purposes of Federal Rule of Evidence 901."16 Moreover, a document may "be sufficiently authenticated taking into consideration the ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, even if they do not appear on [the opposing party's] letterhead."17 The Tenth Circuit has counseled that "the bar for authentication of evidence is not particularly high."18

Defendant also raises foundation objections. Under Fed. R. Evid. 602, a witness "may testify to a matter only if evidence is introduced sufficient to support a finding that [he] has personal knowledge of the matter." The witness's own testimony can provide evidence of personal knowledge.19

a. Schuman Declaration

Plaintiff submitted the declaration of its counsel Brett Schuman to authenticate many of the challenged summary judgment exhibits—Exhibits 21–30 and 33. Schuman attests in the declaration that he has "personal knowledge of the facts set forth in this declaration," and that each exhibit is a true and correct copy.20 Schuman states that Exhibits 21–27 are true and correct copies of documents produced by Plaintiff during discovery, which are Bates stamped. Schuman further states that Exhibits 28–30 are versions of ATI's Terms and Conditions—Exhibit 28 was marked and introduced during Defendant's deposition, while the other two versions

588 F.Supp.3d 1191

are Bates stamped. Finally, Schuman states that "Exhibit 33 is a true and correct copy of a log of user activity on ATI's website for the ATI user ‘Cathy A Parkes,’ with a physical address at ‘2852 Camino Serbal, Carlsbad, California,’ and an email address of ‘,’ that was produced by ATI in this Action under Bates No. ATI0124227."21

The Court overrules and denies Defendant's objection as to Exhibits 22–27, 29, 30, and 33 because Schuman's declaration reveals the source of the records—they were all produced during discovery and bear Plaintiff's Bates stamp.22 The Court easily finds that Schuman, as one of Plaintiff's attorneys, has personal knowledge that these documents were produced by Plaintiff during discovery. Moreover, the Court has reviewed the exhibits and finds that their contents, coupled with Schuman's declaration and their Bates stamps, sufficiently authenticate them. Exhibit 28, Plaintiff's 2013 Terms and Conditions, does not contain a Bates stamp, and although it was introduced during Defendant's deposition, her testimony is not sufficient to authenticate it.23 However, ATI offers the declaration of Jeff Marsh with its summary judgment reply, which sufficiently authenticates Exhibit 28. Marsh is the Test Security Manager at Ascend Learning, which is the parent company of ATI, and has worked there since 2012. He is responsible for "establishing and implementing any new policies and procedures" to make ATI...

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