University of Kansas v. Sinks

Decision Date19 March 2008
Docket NumberNo. 06-2341-JAR.,06-2341-JAR.
Citation565 F.Supp.2d 1216
PartiesUNIVERSITY OF KANSAS and Kansas Athletics, Inc., Plaintiffs, v. Larry SINKS, Clark Orth, Larry Sinks Enterprises, Inc. and Victory Sportswear, L.L.C. (collectively d/b/a/ Joe-College.com), Defendants.
CourtU.S. District Court — District of Kansas

Alicia Grahn Jones, Jerre B. Swann, R. Charles Henn, Jr., William H. Brewster, Kilpatrick Stockton LLP, Atlanta, GA, Douglas M. Greenwald, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Plaintiffs.

Mark T. Emert, William J. Skepnek, Skepnek Fagan Meyer & Davis PA, Lawrence, KS, Charles T. Schimmel, Hill, Beam-Ward, Kruse, Wilson & Wright, LLC, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

Plaintiffs University of Kansas ("KU") and Kansas Athletics, Inc. ("Kansas Athletics") filed this action against defendants Larry Sinks, Clark Orth, Larry Sinks Enterprises, Inc. and Victory Sportswear, L.L.C. alleging violations of state and federal trademark laws through the unauthorized and unlicensed sale of KU apparel. The following summary judgment motions are before the Court: (1) Motion for Summary Judgment on Plaintiffs' Claims (Doc. 130) by KU and Kansas Athletics; (2) Motion for Summary Judgment (Doc. 131) by defendant Clark Orth; (3) Motion for Summary Judgment (Doc. 134) by defendant Larry Sinks; and (4) Motion for Summary Judgment (Doc. 136) by all defendants. In addition, the Court considers the following evidentiary motions in conjunction with the motions for summary judgment: (1) Motion in Limine to Exclude Evidence Concerning Third-Party Use of Plaintiffs' Marks (Doc. 116); (2) Motion to Strike Declarations of Vander Tuig, Drucker, Temple, Baker, Campbell and Bonilla (Doc. 158); and (3) Motion to Strike Weblog (Doc. 160).

As described more fully below, the Court denies the motion to exclude evidence of third-party use, denies the motion to strike the declarations of Vander Tuig and Drucker, grants the motion to strike the declarations of Temple, Baker, Campbell, and Bonilla, and grants in part and denies in part the motion to strike weblog evidence. The Court further denies defendant Sinks' motion for summary judgment, defendant Orth's motion for summary judgment and the motion for summary judgment filed by all defendants. Finally, the Court grants in part and denies in part plaintiffs' motion for partial summary judgment.

I. Evidentiary Motions

The parties have filed motions asking to Court to rule on the admissibility of certain evidence, or to strike certain evidence submitted in support of summary judgment. The Court addresses them at this time.1

A. Motion to Strike Declarations of Paul Vander Tuig, Michael Drucker, Stephanie Temple, Karen Baker, Grace Campbell, and Mario Bonilla (Doc. 158)
1. Vander Tuig and Drucker

Defendants ask the Court to strike the declarations of Paul Vander Tuig, the Trademark Licensing Director for KU, and Michael Drucker, the Vice President and Associate General Counsel of the Collegiate Licensing Company ("CLC").2 Defendants argue that Vander Tuig's deposition should be stricken because he was not properly designated as a witness under Fed.R.Civ.P. 30(b)(6) and that both Vander Tuig's and Drucker's declarations should be stricken because they constitute inadmissible hearsay and lack foundation.

Defendants maintain that Vander Tuig, who was not designated by KU as a Rule 30(b)(6) witness, should have been designated as such and that his declaration is now being offered to "patch up holes" left by KU's designated Rule 30(b)(6) witness, Theresa Gordzica, who is the chief business and financial planning officer for KU. According to defendants, at some point during or after Gordzica's deposition' testimony, "it became apparent that [she] was not the appropriate person for Plaintiffs to designate ... or that she was poorly prepared to address issues set forth in Defendants' Rule 30(b)(6) notice."

Because defendants issued a Rule 30(b)(6) notice to KU, KU was required to "designate one or more officers, directors, or managing agents, ... and may set forth, for each person designated, the matters on which the person will testify.... The persons so designated shall testify as to matters known or reasonably available to the organization."3 Business entities "have a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter."4 If an entity instead produces a witness who is unable to respond to the items in the deposition notice, it has a duty to provide a substitute.5

In their motion, defendants question KU's choice of Gordzica as its Rule 30(b)(6) designee instead of Vander Tuig, who defendants urge was a more suitable corporate representative. In support of this assertion, defendants point to the substantial portion of Vander Tuig's declaration that is responsive to their Rule 30(b)(6) notice. While defendants make a strong case for why Vander Tuig would have most certainly been a suitable Rule 30(b)(6) designee for KU, they do not make any showing about why Gordzica was not. The Court is unable to find any authority for the contention that a business entity must designate each and every person within the organization who is able to respond to a deposition notice; only that the entity must fulfill its obligation to prepare the chosen designee to fully answer the questions propounded in such notice. Here, while defendants make the conclusory argument that Gordzica was not the best person for KU to designate, they fail to develop an argument about why or how she was not fully prepared to respond to questions or topics set forth in their deposition notice. While it may very well be true that Vander Tuig was highly qualified to respond to defendants' Rule 30(b)(6) inquiries, the Court is unable to conclude that his entire declaration should be stricken simply because KU decided to rely upon it in its motion for summary judgment rather than Gordzica's deposition testimony. Accordingly, the Court denies defendants' motion to strike Vander Tuig's declaration as a sanction for some violation of Rule 30(b)(6).

Defendants maintain that both Vander Tuig's and Drucker's declarations should be stricken because they are not based on personal knowledge, or are based on inadmissible hearsay and reference documents for which there is no foundation. Fed.R.Evid. 602 requires that a testifying witness "ha[ve] personal knowledge of the matter" testified to.6 Also, Fed.R.Civ.P. 56(e) requires that affidavits be made on personal knowledge and "set forth such facts as would be admissible in evidence .... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." "Under the personal knowledge standard, an affidavit is inadmissible if `the witness could not have actually perceived or observed that which he testifies to.'"7 Statements of "mere belief in an affidavit must be disregarded."8

Defendants urge the declarations at issue here are not based on personal knowledge because of the following preliminary statement made in both: "the facts set forth in this Declaration are based on my personal knowledge, review of corporate records, or interviews with appropriately knowledgeable persons." But "Rule 56(e)'s requirements of personal knowledge and competence to testify may be inferred if it is clear from the context of the affidavit that the affiant is testifying from personal knowledge."9 Here, it is clear from the context of the declarations that both Vander Tuig and Drucker are competent to testify to the matters discussed in their respective declarations. Vander Tuig is the Trademark Licensing Director for KU and Drucker is the Vice President and Associate General Counsel for CLC. The Court finds that personal knowledge of the subject matter attested to can be inferred based on the declarants' respective positions within KU and CLC. Further, the statements made in both declarations are particular and detailed, which further supports their attestations of personal knowledge.10

Defendants complain that the attestation clauses in these declarations refer not only to personal knowledge, but also to interviews with others and reviews of corporate documents. Defendants ask how they are to know which source of information formed the basis of each statement in the declarations. In their response, plaintiffs represent that although they reviewed corporate records and spoke to others in preparing the background of issues discussed in the declarations, "each of the facts set forth therein were and are based upon their personal knowledge." Indeed, plaintiffs have filed supplemental declarations stating as much.11 The Court is unable to conclude, based on the record, that these declarants' statements are not based on personal knowledge, as set forth above.12 The statements made by them are not conclusory statements outside the realm of their knowledge-base given their respective positions within KU and CLC. To the extent that each statement in the declarations is supported by corporate documents, those are authenticated, attached as exhibits and cited properly as such. The Court denies defendants' motion to strike the Vander Tuig and Drucker declarations.

2. Temple, Baker, Campbell, and Bonilla

Defendants also ask the Court to strike the declarations of Temple, Baker, Campbell, and Bonilla, who were employees of the KU Bookstore, or KUstore.com at the time their declarations were made. These declarants all attested to instances of actual confusion among consumers who they...

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