Aaron & Andrew, Inc. v. Sears Holdings Mgmt. Corp., 2018 U.S. Dist. LEXIS 49716 (C.D. Cal. Mar. 26, 2018):
On February 14, 2014, Plaintiffs Aaron & Andrew, Inc. and Aaron Design, Inc. (collectively, "Plaintiffs") filed a civil complaint alleging infringement of their "projection" nightlight [*2] patents and copyrights. (Dkt. No. 1). The operative Second Amended Complaint was filed on January 22, 2016.1 ("SAC," Dkt. No. 145). The SAC sues American International Industries, Inc. ("AMIN") and RealAmerica Corporation ("RealAmerica") (collectively, "Defendants"), as well as two other Defendants who have since settled the claims against them.2 (Id. at 13-23; see also Dkt. No. 172 (Notice of Settlement)). The Parties have consented to proceed before the undersigned Magistrate Judge. (Dkt. Nos. 20, 35, 37).
Defendants first moved for summary judgment on January 20, 2017. (Dkt. No. 170). Plaintiffs opposed the summary judgment motion, arguing in part that the Court should deny summary judgment because Plaintiffs required additional discovery to investigate their alter ego theory. (Dkt. 176 at 11-12). On April 14, 2017, the Court denied the motion without prejudice as premature because the fact discovery cut-off was more than eight months away and the additional discovery that Plaintiffs represented that they planned to pursue "may produce information relevant to the specific issues" raised in the motion, including matters pertaining to Defendants' corporate status and management.3 (Dkt. No. 189 at [*3] 9) (citing Fed. R. Civ. P. 56(d)).
On January 3, 2018, Defendants filed an Amended Motion for Summary Judgment based on the same grounds as the 2017 motion. ("Motion" or "MSJ," Dkt. No. 212). The Motion is supported by the declarations of Daniel Dror, ("Dror Decl.," Dkt. No. 212-1), and Charles Zeller, ("Zeller Decl.," Dkt. No. 212-2), and a Statement of Undisputed Facts and Conclusions of Law. ("SUF," Dkt. No. 213).
Plaintiffs filed an Opposition on February 7, 2018, ("Opp.," Dkt. No. 215), supported by the declaration of Tommy SF Wang, ("Wang Decl.," Dkt. No. 217), and a Statement of Genuine Disputes.4 ("SGD," Dkt. No. 216). There is no evidence before the Court indicating that Plaintiffs ever took the depositions of Fields, Dror or Zeller or conducted any other discovery in the year between the filing of the original and amended motions for summary judgment. The state of the evidence therefore appears to have remained essentially unchanged since the original summary judgment motion was filed in January 2017.
Defendants did not file a Reply. The Court took the matter under submission without a hearing pursuant to Local Rule 7-15. (Dkt. No. 214). For the reasons discussed below, Defendants' Amended Motion for Summary [*4] Judgment is GRANTED and this action is DISMISSED WITH PREJUDICE.
This case concerns the sale and distribution of allegedly infringing nightlights by Northeastern Plastics, Incorporated ("NPI") and the purported responsibility of NPI's corporate parents for the infringement.5 NPI began operation in the mid-to-late 1970s. (Dror Decl. ¶ 9; MSJ at 1). In 1997, AMIN acquired 100% of NPI's shares. (Dror Decl. ¶ 9). At the time of the acquisition, Marc Fields was NPI's President and Chief Operating Officer. (Id.; see also Wang Decl., Exh. D at 1). Fields remained responsible for NPI's day-to-day operations until AMIN sold NPI to RealAmerica in 2015. (Dror Decl. ¶ 9).
Daniel Dror was AMIN's Chairman and CEO at the time of the 1997 NPI acquisition, and he currently holds those positions. (Id. ¶ 2). Dror also served as NPI's Chairman of the Board for as long as AMIN owned NPI's stock. (Id.). Charles Zeller, President of RealAmerica, was a member of AMIN's board of directors "during the period that AMIN owned 100% of NPI's stock," and continues to serve on AMIN's board. (Zeller Decl. ¶ 2).
During the period that AMIN owned NPI, Fields did not seek approval from AMIN or Dror "prior to paying [*5] [NPI's] expenses incurred in the ordinary course of business." (Dror Decl. ¶ 9). Dror represents that NPI and AMIN always kept separate bank accounts, filed separate tax returns, prepared separate financial statements, maintained separate offices, and held separate board meetings with separate minutes and records. (Id. ¶ 11).
NPI began importing the nightlights at issue in this litigation "at least as early as 2008." (MSJ at 1). On March 28, 2012, Plaintiffs' prior counsel sent a letter to Fields in his capacity as President of NPI advising him that certain nightlights distributed by NPI under the Good Choice brand infringed Plaintiffs' intellectual property rights. (Wang Decl., Exh. D at 1-2). Two months later, on May 31, 2012, NPI announced that it had established a new online marketing arm and that "NPI's management believes that the new online store will make a significant contribution to the bottom line as the site continues to grow. The initial site product offering covers all of the many NPI Good Choice consumer products (including night lights . . .)." (Id., Exh. T at 2). The press release was quoted in a "Chairman's Letter" posted on AMIN's website. (Id.).
In February 2014, Plaintiffs filed this lawsuit [*6] alleging that NPI, AMIN and two downstream distributors of NPI's products had infringed Plaintiffs' patents and copyrights by importing and selling "projection" nightlights under the Good Choice brand. (See Dkt. No. 1). Fields retained counsel to represent NPI, and NPI agreed to indemnify all of the other Defendants, including AMIN, for legal fees incurred in the action. (Dror Decl. ¶¶ 5-6; see also MSJ at 2). The legal fees were paid from NPI's bank account. (Dror Decl., Exh. A-1 (NPI checks payable to McClean Gleason LLP)).
NPI became insolvent in late 2014 and was no longer able to pay Defendants' legal fees. (Id. ¶ 6). Although NPI "had no real assets" by that time, Dror believed that NPI might have a claim against the Chinese company that imported the nightlights distributed by NPI. (Id. ¶ 7). However, AMIN did not wish to pursue that claim. (Id.). Accordingly, on January 30, 2015, AMIN sold all of its shares in NPI to RealAmerica, which did have an interest in pursuing NPI's claim against the Chinese company. (Id. & Exh. A-2). All three members of AMIN's board of directors, consisting of Dror, Zeller, and one other person, signed a Consent to the sale. (Id., Exh. A-2 at 17; see also Zeller [*7] Decl., Exh. B-7).6 Following the sale of NPI to RealAmerica, Dror personally "acted as a consultant to NPI to assist in winding up the affairs of the company and repaying creditors such as banks to which NPI owed loan principal amounts." (Dror Decl. ¶ 8).
According to the January 30, 2015 Stock Purchase Agreement executed by AMIN and RealAmerica, RealAmerica paid $10 "and other valuable consideration" for NPI's stock. (Id., Exh. A-2 at 18 § 1.02). By that date, the present action had been pending for nearly a year and NPI, as a named Defendant in the then-operative First Amended Complaint, had not yet defaulted. Nonetheless, NPI and AMIN represented in the Purchase Agreement that "[t]o the best of the knowledge, information and belief of [NPI] and [AMIN], there are no claims pending or, to the knowledge of [NPI], threatened against or affecting [NPI] or any of its assets and properties before or by any governmental authority or any other person." (Id., Exh. A-2 at 21 § 3.06).
For the period immediately prior to RealAmerica's acquisition of NPI, "NPI had not imported the alleged infringing products in almost a year" and was, and still is, in a liquidation and wind-up phase. (Zeller Decl. ¶ 5). Since [*8] NPI's acquisition by RealAmerica, NPI has not purchased any of the alleged infringing products. (Id.). Zeller represents that NPI and RealAmerica keep separate bank accounts, prepare separate financial statements, maintain separate offices, hold separate board meetings, and do not keep consolidated books, records, or minutes. (Id. ¶ 6).
THE PARTIES' CONTENTIONS
Defendants argue that they are entitled to summary judgment because there is no genuine issue of material fact as to whether they are directly, indirectly, or vicariously liable for patent and copyright infringement. According to Defendants, there is no evidence showing that either AMIN or RealAmerica directly imported or sold infringing nightlights, or that they induced or encouraged NPI to do so. (MSJ at 5-8). Defendants also maintain that there is no evidence showing that they are the alter egos of NPI, as the mere ownership of NPI's stock by AMIN and then by RealAmerica does not demonstrate "unusual" activity sufficient to pierce the corporate veil. (Id. at 8-12). Defendants further state that Dror's and Zeller's overlapping management roles -- in Dror's case, as both President of AMIN and Chairman of the Board of NPI during the period when [*9] AMIN owned NPI, or in Zeller's case, as President of RealAmerica and board member of AMIN -- do not provide a basis for an alter ego finding. (Id.).
Plaintiffs argue that triable issues of fact exist as to whether AMIN was directly involved in NPI's infringing activities and whether RealAmerica assumed NPI's liabilities when it purchased AMIN's interest in NPI. (Opp. at 6-8, 11-16). Plaintiffs also argue that NPI, AMIN and RealAmerica are alter egos of each other and are therefore liable for one another's acts. (See id. at 8-10, 16-27). Relying heavily on their interpretation of certain disclosures in AMIN's Form 10-K and other SEC filings between 2011 and 2015, copies of which Plaintiffs obtained from the Internet since opposing the first summary judgment motion, Plaintiffs contend that NPI, AMIN and RealAmerica satisfy numerous factors for an alter ego finding because: NPI transferred property to concentrate assets in AMIN and deprive NPI's creditors after being served with the complaint; Dror (AMIN's CEO and Chairman) personally guaranteed loans to NPI; and AMIN sold NPI to RealAmerica for a nominal amount despite believing that NPI had an asset of substantial value in its claim against the Chinese importer. (Opp. at 21-23) (citing, inter [*10] alia, Wang Decl. ¶ 24, Exh. R at 6-7; id. ¶ 22, Exh. P. at 43). Plaintiffs further contend that an alter ego finding is warranted in light of the "interlocking officers and directors" among NPI, AMIN and RealAmerica, (Opp. at 22; Wang Decl. ¶¶ 4, 5, 11 & Exhs. A, B, H); AMIN's and NPI's shared business address and AMIN's and RealAmerica's shared office (Opp. at 22; Wang Decl. ¶¶ 16-17 & Exhs. J, M); and NPI's purportedly inadequate capitalization. (Opp. at 24-26).
STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure authorizes the court to grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). "Material facts are those which may affect the outcome of the case." Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). "A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party." Id. If the moving party meets its burden, the burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324. A nonmoving party is not required to show that a factual dispute must be resolved [*11] conclusively in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." (Id.) (internal quotation marks and citation omitted).
A party is entitled to judgment as a matter of law "if, under the governing law, there can be but one reasonable conclusion as to the verdict." Id. at 250. There can be only one reasonable conclusion as to a moving party's entitlement to summary judgment when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. As the Ninth Circuit has explained,
Under Adickes and Celotex, a moving party without the ultimate burden of persuasion at trial . . . may carry its initial burden of production [on summary judgment] by either of two methods. The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion [*12] at trial.
The Court may consider only admissible evidence in ruling on a motion for summary judgment. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002); Fed. R. Civ. P. 56(e). As the Ninth Circuit has explained,
In a summary judgment motion, documents authenticated through personal knowledge must be "attached to an affidavit that meets the requirements of [Fed. R. Civ. P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." [Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987) (citation omitted).] However, a proper foundation need not be established through personal knowledge but can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902. See Fed. R. Evid. 901(b) (providing ten approaches to authentication); Fed. R. Evid. 902 (self-authenticating documents need no extrinsic foundation).
Orr, 285 F.3d at 773-74 (footnotes omitted). At the summary judgment stage, the court must "not focus on the admissibility of the evidence's form," but instead "on the admissibility of its contents." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.").
The court may not weigh the evidence or make credibility determinations in ruling on a summary judgment motion. See Anderson, 477 U.S. at 255. Rather, "the evidence of the non-movant is to be believed, and all [*13] justifiable inferences are to be drawn in his favor." Id. At the same time, more than a "metaphysical doubt" is required to establish a genuine issue of material fact, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), and "the non-moving party must present more than a 'mere . . . scintilla of evidence' to defeat a motion for summary judgment." International Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1068 (9th Cir. 2011) (quoting Anderson, 477 U.S. at 252); see also Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact."). Conclusory or speculative assertions unsupported by evidence will not defeat a motion for summary judgment. McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016) (arguments based on "conjecture or speculation are insufficient" to avoid summary judgment) (internal quotation marks and citation omitted); Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) ("[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.") (internal quotation marks and citation omitted).
A. Evidentiary Issues
Plaintiffs rely heavily, though not exclusively, on printouts from various government and commercial websites in their attempt to create a triable issue of fact. (See, e.g., Wang Decl. ¶¶ 5, 11 & Exhs. B, H (printouts from AMIN's website);7id. ¶ 6 & Exh. C (printout from Wilkinvest.com); id. ¶ 8 [*14] & Exh. E (printout from Globe Newswire website); id. ¶ 9 & Exh. F (excerpt of AMIN's 2015 Form 8-K, printed from the SEC's website); id. ¶¶ 17, 20 & Exhs. M, N (printouts from Texas Secretary of State and Office of Comptroller websites). Indeed, all of the "new" exhibits that were not previously submitted in opposition to the original summary judgment motion are printouts of webpages. (See id. ¶¶ 21-24 & Exhs. O, P, Q, R (AMIN's Form 10-K for years 2011-2014, printed from the SEC's website); id. ¶ 25 & Exh. S (printout from the Texas Office of Comptroller's website); id. ¶¶ 26-27 & Exhs. T, U (printouts from AMIN's website)).
"There are two aspects to the determination of whether [a] website printout . . . is admissible. The first aspect is authentication, and the second aspect is the admissibility of the website contents." Osborn v. Butler, 712 F. Supp. 2d 1134, 1146 (D. Idaho 2010) (declining on summary judgment to consider statements for the truth of the matter from a website "purported to be prepared by Plaintiff" where plaintiff had not verified that he authored the contents); see also U.S. v. Tank, 200 F.3d 627, 630 (9th Cir. 2000) (prima facie showing of authenticity satisfied when government presented evidence sufficient to allow reasonable juror to find that chat room printouts [*15] were authenticated). As one court explained:
[W]ebsite postings and news articles are potentially inadmissible hearsay because they are, and contain, out of court statements offered to prove the truth of the matter asserted. Fed. R. Evid. 801. In addition, there may be authenticity issues with some of the documents. See, e.g., United States v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000) (web postings, even if they qualified as business records, may be inadmissible if the source of information or the method o[r] circumstances of preparation indicates a lack of trustworthiness).
Toxgon Corp. v. BNFL, Inc., 2003 U.S. Dist. LEXIS 27885, 2003 WL 25860388, at *4 (E.D. Wash. July 7, 2003); see also Allied Prop. & Cas. Ins. Co. v. Stuart, 230 F. Supp. 3d 969, 980 n.1 (E.D. Mo. 2017) ("[U]nauthenticated website printouts attached as exhibits to summary judgment motions or responses are not admissible.").
It is questionable whether Wang's declaration adequately authenticates the aforementioned Internet printouts.8 However, even assuming, without deciding, that Wang's declaration provides sufficient authentication, many of these printouts either are inadmissible hearsay or are not otherwise admissible for the truth of their contents.
For example, the business publications attached as Exhibits C and E to Wang's declaration (printouts from Wilkinvest.com and globenewswire.com, respectively), even if based in part on AMIN's press releases and public filings, [*16] are "simply news postings on the internet" that "are rife with hearsay." Tolliver v. Fed. Republic of Nigeria, 265 F. Supp. 2d 873, 876 (W.D. Mich. 2003). Therefore, Exhibits C and E are stricken. See Silver State Intellectual Techs., Inc. v. Garmin Int'l, Inc., 32 F. Supp. 3d 1155, 1170 (D. Nev. 2014) ("Although [defendant's attorney] may authenticate the fact that he obtained the press release from this website, [he] provides no information about the website from which he obtained this press release such that the Court could conclude the press release is authentic. . . . Further, assuming the news release is authentic, it is hearsay to the extent [defendant] seeks to offer it for the truth of the matter asserted[.]").
In contrast, the composition of AMIN's management team, as reflected in printouts from AMIN's website, is uncontroverted, and is corroborated by Dror's and Zeller's declarations. (See Wang Decl., Exhs. B, H; Dror Decl. ¶ 2; Zeller Decl. ¶ 2). The two other documents taken from AMIN's website -- a "Chairman's Letter" describing the launch of NPI's online store in May 2012, (Wang Decl., Exh. T), and a press release announcing NPI's retention of a line of credit with Trustmark Bank in January 2011, (id., Exh. U) -- "if properly authenticated, may . . . constitute a party admission or qualify as a business record[.]" Toxgon Corp., 2003 U.S. Dist. LEXIS 27885, 2003 WL 25860388, at *5. [*17] Accordingly, the Court will assume, without deciding, that the documents pulled from AMIN's website are admissible for consideration on summary judgment.
The remainder, and in fact the majority, of Plaintiffs' other exhibits culled from the Internet are printouts from government websites. Plaintiffs do not show that they have personal knowledge of the content of these documents. However, "judicial notice may be taken of public records" where the fact is "not subject to reasonable dispute" because it is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006); see also Fed. R. Evid. 201. Thus, it is widely accepted that a court may take judicial notice of public documents posted on government websites, both for the fact that particular disclosures were made and for the fact of their publication. Patel v. Parnes, 253 F.R.D. 531, 546 (C.D. Cal. 2008). However, the "truth of the content" of the disclosures, and "the inferences properly drawn from them, . . . [are] not a proper subject of judicial notice under Rule 201." Id.; see also San Luis & Delta-Mendota Water Auth. v. Salazar, 686 F. Supp. 2d 1026, 1032 (E.D. Cal. 2009) (taking judicial notice on summary judgment of "public documents published by administrative bodies and readily available on the internet" for the fact of their "publication [*18] and their contents, but not for the truth of disputed matters asserted in the documents"); Coal. for a Sustainable Delta v. John McCamman, 725 F. Supp. 2d 1162, 1183-84 (E.D. Cal. 2010) (taking judicial notice of U.S. Fish and Wildlife Service webpage and other public records "to prove their existence and content, but not for the truth of the matters asserted therein. This means that factual information asserted in these documents . . . cannot be used to create or resolve disputed issues of material fact [on summary judgment].").
Thus, while a court may take judicial notice of the fact that certain representations were made in a Form 10-K, for example, it is improper to take judicial notice of the disclosures for the truth of the matter asserted. See Troy Grp., Inc. v. Tilson, 364 F. Supp. 2d 1149, 1152 (C.D. Cal. 2005) ("SEC filings should be considered only for the purpose of determining what statements the documents contain, not to prove the truth of the documents' contents.") (internal quotation marks and citation omitted); Patel, 253 F.R.D. at 546 (declining to take judicial notice of contents of SEC Form 4 for the truth of establishing Plaintiffs' actual trading activity). As one court observed,
To support their claim [on summary judgment] that 'it is indisputable' that both mergers were reverse triangular mergers, Defendants cite to a Form 10—K and Form 10—Q presented [*19] as exhibits to a Request for Judicial Notice. Apparently, Defendants want the Court to take judicial notice of the merger-related 'facts' stated in the SEC filings, and conclude from those facts that the Sprint—Nextel and SoftBank mergers were reverse triangular mergers. That the Court cannot do.
Pub. Storage v. Sprint Corp., 2015 U.S. Dist. LEXIS 30204, 2015 WL 1057923, at *16 (C.D. Cal. Mar. 9, 2015) (citing, inter alia, Patel, 253 F.R.D. at 546); see also Gerritsen v. Warner Bros. Entm't Inc., 112 F. Supp. 3d 1011, 1032-33 (C.D. Cal. 2015) (declining to take judicial notice of SEC filings for the truth of their contents to show "a unity of interest among the defendants"); Shapiro v. Hasbro, Inc., 2016 WL 9176559, at *4, n.10 (C.D. Cal. Aug. 23, 2016) (taking judicial notice on summary judgment of SEC filings to show that a statement was made, but not for the truth of the statement); In re Broadcom Corp. Sec. Litig., 2004 U.S. Dist. LEXIS 28091, 2004 WL 3390052, at *1 n.2 (C.D. Cal. Nov. 23, 2004) (same).
Accordingly, the Court will take judicial notice of printouts from government websites for the content and publication of the disclosures made. However, the Court may not take judicial notice of the truth of such disclosures, including those in AMIN's Form 10-K and 8-K filings with the SEC, to find a disputed issue of fact. ***
1 On February 8, 2017, the Court denied Plaintiffs' Motion for Leave to File Third Amended Complaint.
2 Unless otherwise specified, references to "Defendants" in this Order encompass only AMIN and RealAmerica.
3 In opposing the first summary judgment motion, Plaintiffs argued in part that they should have the opportunity to depose Marc Fields, Daniel Dror and Charles Zeller, the chief executives of the three companies that Plaintiffs contend are alter egos of one another. (Dkt. No. 176 at 7-8). Although the Court noted in its Order that "Plaintiffs could have noticed the depositions contemplated in their Opposition earlier," it determined that Plaintiffs' delay in pursuing the depositions was not dispositive "given the significant amount of time remaining until the discovery cut-off, which was recently extended upon the parties' Joint Stipulation." (Dkt. No. 189 at 8).
4 Plaintiffs also attached as an exhibit to the Wang declaration the declaration of former counsel Drexel Bradshaw, which was originally submitted in support of the opposition to the first summary judgment motion. (See Wang Decl. Exh. V; Dkt. No. 177). Paragraphs 4-20 of Wang's declaration, which purport to authenticate attached Exhibits A-N, are verbatim copies of the same paragraphs and exhibits in Bradshaw's declaration.
5 NPI was a named Defendant in the original Complaint, filed on February 14, 2014, (Dkt. No. 1 ¶ 10), and the First Amended Complaint, filed on June 13, 2014. (Dkt. No. 55 ¶ 10). The Court granted Plaintiffs' request for entry of default against NPI on June 5, 2015. (Dkt. Nos. 133-134). Accordingly, Plaintiffs did not re-name NPI as a Defendant in the Second Amended Complaint, which was filed on January 22, 2016, seven and a half months after NPI's default was entered. (Dkt. No. 145).
6 Exhibit A-2 attached to Dror's declaration and Exhibit B-1 attached to Zeller's declaration are identical and consist of: the Consent to Action signed by AMIN's board of directors authorizing the sale of NPI to RealAmerica; the Stock Purchase Agreement executed by AMIN and RealAmerica in connection with that sale; a certificate of ownership showing that AMIN owned the 1,000 NPI shares it was selling to RealAmerica; and NPI's income and balance statements for December 2014. Because the pages to these exhibits are not consecutively numbered, the Court will cite to individual pages where necessary by the CM/ECF number at the top of the page on the Court's docket.
7 Exhibits B and H appear to be identical copies of the same webpages from AMIN's website. (Wang Decl., Exhs. B, H).
8 Wang's declaration affirms that the aforementioned documents are "true and correct" copies of pages from various websites identified by name, e.g., SEC, AMIN, etc. The declaration does not, however, provide the website addresses of the specific documents attached or identify who retrieved and printed the documents. See Osborn, 712 F. Supp. 2d at 1146 (declaration adequately authenticated Internet printouts where the declarant "explain[ed] that he printed the website, gave the website address, and represented that [the contents] had not been altered or changed from the form maintained at the website address").
Share this article: