Brown v. Armstrong, Civil Action No. 93-12385-RCL.

• Decision Date: 24 January 1997
• Docket Number: Civil Action No. 93-12385-RCL.
• Citation: 957 F.Supp. 1293
• Parties: Russell BROWN, et al., Plaintiffs, v. Wally ARMSTRONG, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

957 F.Supp. 1293

Russell BROWN, et al., Plaintiffs, v. Wally ARMSTRONG, et al., Defendants.

Civil Action No. 93-12385-RCL.

United States District Court, D. Massachusetts.

January 24, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Theodore H. Goguen, Goodman, Goguen & McLaughlin, South Natick, MA, for Russell Brown.

Scott P. Lewis, Jordana B. Glasgow, Palmer & Dodge, Boston, MA, Daniel M. Cislo, Cislo & Thomas, Santa Monica, CA, Lee C. Bromberg, Bromberg & Sunstein, Boston, MA, for Wally Armstrong, Wally Armstrong Golf, Inc., American-Telecast Corp., Kenneth Rogers, George Summerall and Gator Golf Enterprises, Inc.

LINDSAY, District Judge.

Report and Recommendation Accepted.

REPORT AND RECOMMENDATION REGARDING MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS AMERICAN TELECAST CORP., WALLY ARMSTRONG GOLF, INC., KENNY ROGERS AND PAT SUMMERALL (DOCKET NO. 43) AND MOTION OF DEFENDANTS WALLY ARMSTRONG AND GATOR GOLF ENTERPRISES, INC. FOR SUMMARY JUDGMENT (DOCKET NO. 40)

Dec. 30, 1996.

KAROL, United States Magistrate Judge.

In November 1993, Russell Brown ("Brown") and Russell Brown d/b/a Design Specialty Company (together, "Plaintiffs") brought suit against American Telecast Corporation ("ATC"), Gator Golf, Inc., Wally Armstrong Golf, Inc. ("Wally Golf"),¹ Wally Armstrong ("Armstrong"), Kenny Rogers ("Rogers"), and Pat Summerall ("Summerall") (collectively, "Defendants"), seeking a preliminary injunction and damages in the amount of $300,000,000. Plaintiffs' suit alleges that instructional golf videotapes, starring Armstrong, and an infomercial created by ATC to sell the videotapes (along with some golf gadgets), starring Armstrong, Rogers, and Summerall, were false and misleading in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count I). Plaintiffs also claim that, by producing and distributing the infomercial and the instructional video tapes, Defendants: intentionally interfered with lawful business relations (Count II); intentionally interfered with prospective business relations (Count III); engaged in a civil conspiracy (Count IV): and, engaged in unfair and deceptive business practices in violation of Mass. Gen. L. ch. 93A, § 11 (Count V). The court (Lindsay, J.) granted Defendants' motion to dismiss the 93A claim on the ground that the activities alleged in the complaint did not occur primarily and substantially in massachusetts. (Docket no. 19.)

Defendants moved for summary judgment on the four remaining claims.² Plaintiffs opposed the motion (Pls.' Mot. Opp. Summ. J., Docket no. 49) and submitted a brief in opposition (Pls.' Brief Opp. Summ. J., Docket no. 50); a statement of facts in support of their opposition (Pls.' Statement of Facts Opp. Mot. Summ. J., Docket no. 51) ("Plaintiffs' Fact Statement"); and an accompanying appendix. Defendants promptly moved to strike Plaintiffs' Fact Statement and appendix (Defs.' Mot. Strike Pls.' Fact Statement, Docket no. 56). Plaintiffs did not respond.³ Plaintiffs did, however, file a motion to strike Defendants' Fact Statement (Pls.' Mot. Strike Defs.' Fact Statement, Docket no. 59), to which Defendants filed a timely opposition (Defs.' Opp. Pls.' Mot. Strike Defs.' Fact Statement, Docket no. 62).

I. Summary Judgment Record

Before reaching the merits of Defendants' summary judgment motions, I must first determine what facts, if any, are in dispute. Before I can do that, I must decide the parties' respective motions to strike each others' fact statements.

A. Plaintiffs' Motion to Strike Defendants' Fact Statement (Docket no. 59)

Plaintiffs move to strike Defendants' Fact Statement on two grounds: (1) that Defendants' Fact Statement omitted 34 pages of evidentiary material, which caused "extreme prejudice;" and (2) that exhibit 10 to Defendants' Fact Statement was a deliberate attempt to submit false and misleading evidence to this court. (Pls.' Mot. Strike Defs.' Fact Statement at 1-2.) Plaintiffs' motion is completely without merit. The omission of 34 pages appears to have been the result of a clerical error, which Defendants' counsel brought to Plaintiffs' attention and promptly corrected. Moreover, there could have been no prejudice to Plaintiffs, because the missing pages were from Brown's own deposition testimony, to which Plaintiffs clearly had access. Plaintiffs' second assertion is that Defendants' counsel intentionally requested that the publisher of a golf catalog send him only the cover page to a golf catalog, so that Defendants could submit the cover page with the body of another catalog. This bold assertion that Defendants' counsel committed fraud on the court is not supported by any evidence, and it is rebutted by an affidavit submitted by Debbie O'Reilly. Ms. O'Reilly states that the company for which she works, The Golfworks, mistakenly sent the wrong cover page to Defendants' counsel. (O'Reilly Aff. ¶ 3, Docket no. 68.) For the foregoing reasons, Plaintiffs' motion to strike Defendants' Fact Statement is DENIED.

B. Defendants' Motion to Strike Plaintiffs' Fact Statement (Docket no. 56)

In response to Defendants' motions for summary judgment, Plaintiffs filed a 107 paragraph statement of facts with an accompanying appendix, purportedly in compliance with Local Rule 56.1. Local Rule 56.1 was adopted to expedite the process of determining which facts are genuinely in dispute, so that the court may turn quickly to the usually more difficult task of determining whether the disputed issues are material. The rule accomplishes its objective by requiring that a summary judgment motion "include a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried," with citation to the record, and that the opposition "include a concise statement of the material facts of record as to which it is contended there exists a genuine issue to be tried," also with citations to the record. D. Mass. Local R. 56.1. If the moving party complies with the Local Rule, any material facts of record set forth within their statement "will be deemed for purposes of the motion to be admitted ... unless controverted by the statement required to be served by opposing parties." Id. The non-movant's response must "state what specific facts are disputed and prevent summary judgment." Vasapolli v. Rostoff, 864 F.Supp. 215, 218 (D.Mass.1993), aff'd, 39 F.3d 27 (1st Cir.1994) (emphasis added).

Plaintiffs' Fact Statement fails to comply with Local R. 56.1. It does not distinguish between facts involved in the case generally, and material facts that are genuinely in dispute. It clearly is not a statement of "specific facts" in dispute. Id. Moreover, Plaintiffs' Fact Statement frequently makes conclusory statements and allegations that are not supported by citations to the record. Even where citations are provided, the cited portion of the record often does not support the point for which it is cited. Plaintiffs' Fact Statement thus "generates a lot of dust, ... [but] it does not further the goal of sharply focusing areas of dispute." Key Trust Co. of Maine v. Doherty, Wallace, Pillsbury & Murphy, P.C., 811 F.Supp. 733, 734 n. 2 (D.Mass.1993). For these and other reasons, Defendants requested that Plaintiffs' Fact Statement be stricken. I agree that Plaintiffs' Fact Statement does not comply with Local R. 56.1. Rather than strike it, however, I choose to impose the sanction provided for in the rule itself. Accordingly, I DENY Defendants' motion to strike and, instead, I will deem all facts set forth in Defendants' Fact Statement to be admitted, at least where Defendants provide a citation to the record which supports the assertion of fact in question.⁴

II. Undisputed Facts

Plaintiffs' claims in this case concern a television infomercial that promoted an instructional golf kit that included a three-part instructional video and a number of golf training devices. In late 1990 or early 1991, individuals at ATC, a corporation which produces and broadcasts direct response advertisements, including infomercials, decided there was a market for a high-end set of instructional golf videotapes which could be marketed through the use of an infomercial. Representatives from ATC met with Armstrong, an internationally recognized golf instructor, in May 1991, and decided to use him in the videotapes and infomercial. In September 1991, Armstrong, through his company, Gator Golf, executed a contract with ATC to produce an infomercial and a set of instructional videotapes. In preparation for the infomercial and videotapes, Armstrong and representatives from ATC extensively discussed Armstrong's teaching techniques and the training aids he used to demonstrate these techniques. During this time, Armstrong presented a number of different items for possible inclusion in the video and infomercial, including the Birdie Puck and the Power Max discussed below. The kit, as finally developed and advertised on the infomercial, was titled "Maximizing Your Game and Everything About It" ("Maximizing Your Game").

The infomercial featured Wally Armstrong, as a professional golf player who gives instructions on how to play better golf, along with Kenny Rogers and Pat Summerall, as celebrities who testify that their golf games improved after they implemented some of Armstrong's instructions. The final version of the "Maximizing Your Game" kit included a three-tape, six-hour set of golf instructional videotapes and five golf instructional devices, including: a ruler (to help the golfer learn how to grip a golf club); an alignment device (to help the golfer properly line up the face of the putter); a coat-hanger device (to assist the golfer in developing the proper wrist position during a golf swing); a ball on a string (to assist in creating a smooth golf swing); and a sponge (for use in practicing the chip shot). (FS ¶ 31.) The Birdie Puck and the Power Max were not included. The retail price of the kit was $149.95. The...