Pro Se in the Rocket Docket - Part 2 - Summary Judgment

My wife had been working on a motion for summary judgment. Our thinking was that there was nothing in the court record to prove counterfeiting. It seemed worth a try. But it was a bit daunting as the issue of summary judgment is confusing, not being attorneys we had to study this, read allot of cases and that takes time. Just as we had a reasonable (under the circumstances) motion ready to go, the Plaintiff filed a motion for summary judgment.

The summary judgment standard is well established in this and other circuits. The Supreme Court has even weighed in on this subject. Usually it is the defendant that moves for summary judgment. If the motion is properly supported, in response, the plaintiff cannot come back with mere denials or assertions but with specific facts as would be admissible at trial. When the defendant moves for summary judgment, this circuit and others have long held that the plaintiff cannot respond with a conclusory affidavit. Specific facts as would be admissible at trial are required to defeat a properly supported motion for summary judgment.

It follows I think, that were the plaintiff moving for summary judgment, as was the case here, that a wholly conclusory affidavit would not be able to support, to properly support a motion for summary judgment. The affidavit that the plaintiff submitted to the court in support of it's summary judgment motion, dated one day prior to the motion, contains not one fact, specific or otherwise as to how the dresses were determined to be counterfeit. The dresses had been examined and were counterfeit. Period.

And this seems curious. The affiant states that the dresses had been sent to New York for examination three days prior to plaintiff's filing its motion for summary judgment. Nowhere is it stated that these were the same dresses that had been thoroughly examined after having been seized from our home in December 2006 nearly nine months previously. Wasn't this the same person who had examined the dresses following the seizure? And if so, why not attest then that the dresses were counterfeit? Knock out an affidavit and throw it into a file for future use. Or did no one between December 2006 and August 2007 bother to examine the dresses to determine whether or not they were counterfeit? What if they had been genuine? (not to say that they weren't) Plaintiff has prosecuted a counterfeiting case for nine months without bothering to determine if the seized items were counterfeit?

Plaintiff responded that "There had never been any dispute that the dresses were counterfeit." Which is true except for the fact that in our answer, we denied/disputed that the dresses were counterfeit. That in every court document where this 'fact' was raised, we disputed it. That we both denied this repeatedly in our depositions. That until the plaintiff moved for summary judgment, there was no evidence to proof of counterfeiting. That the affidavit submitted to support the motion for summary judgment was wholly conclusory.

Plaintiff's motion for summary judgment uses the word 'counterfeit', in some form, eighty-four times. Then there are the words 'damage' and 'harm' used in every imaginative and creative form possible. It is a very dramatic read. But if one strips away all of the sound and fury, the facts seem a little thin:

• Plaintiff offers no evidence of sales, advertising and related expenditures, media/press coverage of any kind. No certified copy of the mark (or marks ...) in question. Not even a single copy/photo of the mark (or marks) in question. No evidence of prior enforcement of the mark (or marks) in question. No evidence of actual damages.
  
• Sixty-four dresses.
  
• A wholly conclusory affidavit upon which their whole case rests, to proof of counterfeiting.

Plaintiff finally gets around to identifying its claim against me (a mystery to this point as the complaint had not been amended, no 'cause' had been given and I never had an opportunity to 'answer' this claim) of contributory infringement. Plaintiff wraps up its motion with a request to the court for an award of two million dollars in statutory damages, one million for each of two marks that we had infringed upon.

The court finds for the plaintiff on infringement of two marks against my wife and sets aside the claim against me and the issue of damages for a jury trial. Interestingly, the court in its opinion, does not make any reference to the conclusory affidavit regarding the seized dresses. The court grants a permanent injunction to plaintiff against both my wife and I.

* The court also grants that plaintiff may destroy the dresses. This is interesting as at the hearing on summary judgment, the dresses had not been brought into the court. We filed a motion for the court to reconsider allowing the plaintiff to destroy the dresses. This motion was denied.