Vasquez v. Ybarra, CIV.A. 99-1265-MLB.

• Citation: 150 F.Supp.2d 1157
• Decision Date: 11 July 2001
• Docket Number: No. CIV.A. 99-1265-MLB.,CIV.A. 99-1265-MLB.
• Parties: Juan VASQUEZ and Lily Patino, Plaintiffs, v. Christina YBARRA, Defendant.
• Court: U.S. District Court — District of Kansas

150 F.Supp.2d 1157

Juan VASQUEZ and Lily Patino, Plaintiffs, v. Christina YBARRA, Defendant.

No. CIV.A. 99-1265-MLB.

United States District Court, D. Kansas.

July 11, 2001.

Bradley J. Brown, Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., Wichita, KS, for Jose Juan Vasquez, Lily Patino, plaintiffs.

Steven D. Gough, Alan R. Pfaff, Powell, Brewer & Gough, L.L.P., Wichita, KS. for defendant.

Christina Ybarra, Liberal, KS, pro se.

MEMORANDUM AND ORDER

BELOT, District Judge.

This case comes before the court on the parties' cross motions for summary judgment (Docs. 35 and 38). Plaintiffs, owners of the Vargas Restaurant in Liberal, Kansas, brought this action against defendant, the owner of a competing restaurant. Plaintiffs have asserted claims of copyright infringement, 17 U.S.C. § 101 et seq., unfair competition under the Lanham Act, 15 U.S.C. § 1116, and misappropriation of trade secrets, K.S.A. § 60-3322. Plaintiffs claim defendant is liable because, two years after they bought their restaurant from defendant's parents, she opened up a similar restaurant "across the alley" from their restaurant, used identical menu items and stole two cooks (Doc. 22 at 3-4).

Defendant moves for summary judgment, summarizing the case as a simple "family feud" between the owners of competing Mexican restaurants in the small town of Liberal (Doc. 36 at 1). She claims the copyright claim fails because plaintiffs did not create their menu. In fact, defendant asserts that her parents created the menu before they sold the restaurant to plaintiffs. To the extent plaintiffs added menu items to the original menu, which have now appeared on defendant's menu, defendant argues those items are not copyrightable because they lack a creative element. Defendant argues plaintiffs' trademark claim fails because plaintiffs fail to show proof of a protectable trademark, customer confusion and/or damages. Furthermore, defendant argues she is entitled to summary judgment on the state claim for misappropriation of trade secrets because plaintiffs fail to show trade secrets, that they took reasonable steps to protect any such trade secrets and/or that the information was gathered by improper means.

Plaintiffs respond with a combined opposition to defendant's motion for summary judgment and their own motion for summary judgment (Doc. 38). Plaintiffs state they bought the Vargas restaurant from defendant's parents, making "massive changes" to the menu and presentation of the food. Two and a half years after the purchase, defendant, in partnership with her parents, photocopied their menu, hired two of their three cooks, opened a restaurant 100 feet away from the Vargas, and served Vargas menu items using Vargas recipes. As a result, plaintiffs claim defendant appropriated nearly half of the Vargas' goodwill. Plaintiffs argue defendant, in her motion for summary judgment, admitted sufficient facts to allow the court to grant them summary judgment on all three of their claims.

SUMMARY JUDGMENT STANDARDS

The usual and primary purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Federal Rule of Civil Procedure 56(c) directs the entry of summary judgment in favor of a party who "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." An issue is "genuine" if sufficient evidence exists on each side "so that a rational trier of fact could resolve the issue either way" and "[a]n issue is `material' if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citations omitted).

The moving party must initially show both an absence of a genuine issue of material fact, as well as entitlement to judgment as a matter of law. Id. at 670. The nature of the showing depends upon whether the movant bears the burden of proof at trial with the particular claim or defense at issue in the motion. If the nonmoving party bears the burden of proof, the movant need not "support its motion with affidavits or other similar materials negating the opponent's" claims or defenses. Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (emphasis in original). Rather, the movant can satisfy its obligation simply by pointing out the absence of evidence on an essential element of the nonmovant's claim. Adler, 144 F.3d at 671 (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). On the other hand, if the movant has the burden of proof on a claim or defense raised in a summary judgment motion, it must show that the undisputed facts establish every element of the claim or defense. E.g., United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc).¹

Once the moving party properly supports its motion, the burden shifts to the nonmoving party, "who may not rest upon the mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.1993). In setting forward these specific facts, the nonmovant must identify the facts "by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Adler, 144 F.3d at 671. If the evidence offered in opposition to summary judgment is merely colorable or is not significantly probative, summary judgment may be granted. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 533 (10th Cir.1994). A party opposing summary judgment "cannot rely 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." Conaway v. Smith, 853 F.2d 789, 793 (10th Cir.1988). Put simply, the nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

Certain rules govern the presentation of facts and evidence. Local Rule 56.1 requires the movant to set forth a concise statement of material facts. D. Kan. Rule 56.1 (2000). Each fact must appear in a separately numbered paragraph and each paragraph must refer with particularity to the portion of the record upon which the movant relies. Id. An opposing memorandum must contain a similar statement of facts. The opponent must number each fact in dispute, refer with particularity to those portions of the record upon which it relies, and if applicable, state the number of the movant's fact which is in dispute. The court may, but is not obligated to, search for and consider evidence in the record that would rebut the movant's evidence, but that the opponent has failed to cite. Adler, 144 F.3d at 672. All material facts set forth in the statement of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party. See Gullickson v. Southwest Airlines Pilots' Ass'n, 87 F.3d 1176, 1183 (10th Cir.1996) (applying local rules of District of Utah). A standing order of this judge also precludes drawing inferences or making arguments within the statement of facts.

The parties need not present evidence "in a form that would be admissible at trial, but the content or substance of the evidence must be admissible. For example, hearsay testimony that would be inadmissible at trial may not be included ...." Thomas v. Int'l Bus. Machines, 48 F.3d 478, 485 (10th Cir.1995) (internal quotations and citations omitted). Similarly, the court will disregard conclusory statements and statements not based on personal knowledge. Cole v. Ruidoso Mun. Schs., 43 F.3d 1373, 1382 (10th Cir.1994) (regarding conclusory statements); Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir.1995) (requiring personal knowledge). Last, the court may disregard facts supported only by references to documents unless the parties have stipulated to the admissibility of the documents or the documents have been authenticated by and attached to an affidavit meeting the requirements of Rule 56(e). Fed.R.Civ.P. 56(e); D. Kan. Rule 56.1; 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2722 (2nd ed.1994) (footnotes omitted).

With these rules in mind, defendant objects to several of plaintiffs' additional statements of fact. Defendant argues several of these statements are conclusory statements or expert opinions, citing the plaintiffs' own affidavits which simply repeat the corresponding statement verbatim.² Plaintiffs reply that defendant's objection alone is insufficient to controvert all such statements of fact and, in accordance with Rule 56, they are deemed admitted (Doc. 46 at 2). Plaintiffs forget the burden of production and persuasion is on them and without supporting, admissible evidence, defendant need not come forward with evidence to controvert a fact. Accordingly, the court disregards plaintiffs' paragraphs 60, 63, 64, 73, 77, 78-84, 86, 87, 92 and 94 as inadmissible expert testimony and paragraphs 57-60, 63-67, 70-73, 75, 78-92 and 95 as conclusory legal statements.

In the end, when confronted with a fully briefed motion for summary judgment, the court must determine "whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Accordingly, the court must review the "factual record and reasonable inferences therefrom in the light most favorable to the nonmoving/opposing party." Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir.1996); Anderson, 477 U.S. at 255, 106 S.Ct. at 2514. If...