The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
This matter is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by the Order [Doc. 130] of the Honorable Thomas W. Phillips, United States District Judge, for disposition of defendant Clear Channel Communications, Inc.'s ("Clear Channel's") Motion to Strike Plaintiff's Opposition to Clear Channel's Motion for Summary Judgment. [Doc. 121] On October 18, 2007, the Court directed the parties to file supplemental responses. [Doc. 145] The parties have since filed their supplements [Docs. 153, 159], and the matter is now ripe for adjudication.
Clear Channel moves the Court to strike plaintiff Latifvafter Liquidating Trust's*fn1 ("Eon's") entire opposition to Clear Channel's motion for summary judgment. As grounds, Clear Channel states that Eon violated the District Court's Scheduling Order [Doc. 14] by failing to properly respond to Clear Channel's Statement of Undisputed Facts. [Doc. 97] Eon opposes the motion, arguing that it provided a proper response [Doc. 108] to Clear Channel's statement of facts, and that Eon's response was proper in light of Clear Channel's failure to cite to portions of the record that supported its claims.
The Scheduling Order entered in this matter provides, in pertinent part, that: Special Instructions for Motions for Summary Judgment: Any motion for summary judgment shall be accompanied by a separate concise statement of the material facts as to which the moving party contends there is no genuine issue for trial. Each such fact shall be set forth in a separate, numbered paragraph, and shall be supported by no more than two citations to the record.
The party opposing the motion for summary judgment shall file, contemporaneously with his/her brief in opposition, opposing affidavits, etc., a separate pleading that responds to each fact set forth by the movant that either (1) agrees that the fact is undisputed, (2) agrees that the fact is undisputed for purposes of ruling on the motion for summary judgment only, or (3) demonstrates that the fact is disputed, in which event there must be a specific citation to the record. Further, the non-movant's response may contain a concise statement of any additional facts that the non-movant contends are material and disputed; each such disputed fact shall be set forth in a separate, numbered paragraph with specific citations to the record.
The parties are advised that these pleadings are not to be used for argument, which is the proper role of their briefs. If either party fails to file the pleading required of him/her as set forth herein, the Court may strike that party's motion or opposition, as the case may be. [Doc. 14 at ¶ 6(b)(I)]
Clear Channel initially objected to Eon's responses to ¶¶ 3, 4, 8, 9, 11, 12, 14, 15, 18, 19, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 35, 36, 37, 39, 40, 42, 43, 44, 45, 48, 49, 59, 60, 61, 62, 69, 74, 75, 76, and 77. In its supplement, Clear Channel again asserted that each of these entries is fully supported by the citations provided with the entries. [Doc. 153] In its supplement, Eon indicated that it now classified ¶¶ 3, 4, 9, 19, 20, 24, 26, 29, 30, 31, 32, 33, 36, 37, 39, 42, 43, 44, 45, 75, and 76 as "undisputed for the purposes of ruling on the motion for summary judgment only." [Doc. 159] Additionally, the Court notes that while ¶¶ 8, 27, and 74 were included in the disputed entries that the Court directed the parties to address in their supplements, Eon's supplement does not address these items. Accordingly, the Court finds that Eon has waived argument on ¶¶ 8, 27, and 74 and further finds that those items are classified as "undisputed for the purposes of ruling on the motion for summary judgment only." Thus, the only remaining entries in dispute are ¶¶ 11, 12, 14, 15, 18, 22, 23, 25, 48, 49, 59, 60, 61, 62, 69, and 77. The Court will address each of these entries in turn. The Court will begin the analysis of each entry with a verbatim reproduction of the entry in question. Additionally, the Court points out that, given that this matter is at the summary judgment stage, all facts must be viewed in the light most favorable to Eon.
"On November 11, 2004, Newman felt comfortable representing that Eon had an ad insertion product even though, in fact, it was just starting to develop one. Newman Dep. at 171, 173."
The cited deposition provides, in pertinent part: Q: Now, your testimony was that you felt comfortable sending out a letter like that to Lindahl, Cox, and the others in November, by November 11, 2004, because I think your testimony was you had already had the agreement with Clear Channel?
A: Yeah, it was - - Brian Parsons had agreed to let us go forward, so we're starting to develop it. [Doc. 192-2 at 4-5] Eon contends that the "letter like that" referred to above contains no representations that Eon had an ad insertion product. The document that Eon identifies as the "letter like that," an email from Steve Newman to Gregg Lindahl dated November 11, 2004, contains, in pertinent part, the following language:
I want to be your streaming provider but I think we can offer a boat load more than any one in this industry and keep everything under your expense budget and provide revenues for you on the other end. I'll summarize:
3. Ad insertion product that is capable of delivering online schedules by station, by market, by region, by format or as a network from a central location without added equipment at the station level. No extra charge. [Id. at 6] Eon also argues that immediately following a portion of the deposition testimony relied upon by Clear Channel, the deponent testified that, presumably referring to the ad insertion technology, "[Mr. Lindahl] said that once we had something up and working he would be glad to look at it." [Id. at 3]
The Court finds that entry 11 is not a statement of fact, but instead draws an impermissible inference in favor of defendant. The email does not indicate whether Eon had ad insertion technology available or not, only that Eon wished to offer that service. Nor did the deponent testify that he was comfortable stating that Eon had such technology available, but rather he responded yes to the question of whether he was comfortable "sending out a letter like that." In short, the citations support a factual statement that Newman was pitching the ad insertion technology, but there is no factual support for the statement that Newman was actually representing that the technology was in place. Such an inference simply cannot be drawn at this stage of the proceedings. Accordingly, the Court finds that Entry 11 is not an accurate statement of undisputed fact and further finds that Entry 11 is effectively disputed.
"Eon would benefit if it developed FastAim whether it developed it for Clear Channel or some other media company because Eon would be able to market that technology across the industry. Newman Dep. at 98; Skelton Dep. at Ex. 23"
The provided citations indicate that Mr. Newman's strategy was that Eon would benefit whether the ad insertion technology was developed for Clear Channel or for some other company, and that the ad insertion technology was to be catered to the broadcast industry. However, while Mr. Newman's strategy was that Eon would benefit, there is no evidence that Eon would definitely benefit, only that Mr. Newman hoped it would benefit. Accordingly, the Court finds that Entry 12 draws an impermissible inference in favor of Clear Channel and further finds that Entry 12 is effectively disputed.
"Eon expected FastAim to be attractive to other clients and did not expect Clear Channel to pay for its development. Newman Dep. at 98, 117."
The provided citations indicate that Mr. Newman did expect FastAim to be attractive to other clients and that Clear Channel was not going to directly pay for the development. Thus, this portion of the record does support Clear Channel's assertion. However, Eon cites to a portion of Mr. Newman's testimony that indicates that Clear Channel would extend the services contract for three years and allow Eon to collect a 15% commission on ad sales in exchange for Eon's development of the program. Thus, there is a dispute over whether extending the duration of sales contract and allowing a 15% commission could be defined as "paying." The Court finds that Entry 14 is effectively disputed.
"By October 2005, Eon believed that its development of FastAim had rendered a viable product that Eon could license to its customers including Citadel and Media ...