United States District Court, W.D. Washington, Seattle
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
L. ROBART, UNITED STATES DISTRICT JUDGE.
the court is Plaintiff Kische USA LLC's
(“Kische”) motion for partial summary judgment
against Defendant Ali Simsek. (Mot. (Dkt. # 82).) The court
has considered the parties' submissions in support of and
in opposition to the motion, the relevant portions of the
record, and the applicable law. Being fully advised,
court grants in part and denies in part Kische's motion
for the reasons set forth below.
case involves allegations that Mr. Simsek abused his position
as Kische's Chief Executive Manager. (See SAC
(Dkt. # 75); id. ¶ 4.4, Ex. 3
(“OA”) (Dkt. # 75-1) at 11.) During the relevant
period, Kische-formed by Mehmet Uysal, who resided in
Turkey-“engaged in the business of importing high
quality and widely known wom[e]n's apparel to the United
State[s] since its formation in 2007.” (SAC ¶
1.1.) Kische brings claims for trademark infringement in
violation of Section 32 of the Lanham Act, 15 U.S.C. §
1114(1); common law trademark infringement; common law unfair
competition; breach of contract; breach of fiduciary duty;
tortious interference with business relations; conversion;
and unjust enrichment. (SAC ¶¶ 5.1-12.4.) At issue
here are the breach of contract and breach of fiduciary duty
claims. (See Mot.)
February 8, 2010, Mr. Uysal, Kische's sole member, and
Mr. Simsek executed an amended operating agreement
(“the Operating Agreement”). (OA at 30-31;
Herschlip Decl. (Dkt. # 83) at 2, Ex. G (“Simsek
Dep.”) at 103:23-104:3.) The Operating Agreement appointed
Mr. Simsek as Kische's Chief Executive Manager and
delegated “day-to-day management” of Kische's
operations to him. (OA at 11.) The Operating Agreement also
called for Mr. Simsek to: (1) work exclusively for Kische
(id.); (2) “act in the highest good faith at
all times when carrying out his duties and
responsibilities” (id. at 11-12); (3) obtain
Mr. Uysal's prior written approval before entering into
any contract with “aggregate liability or
exposure” exceeding $10, 000.00 or for “[a]ny
act, transaction, or occurrence not in the course of
[Kische's] ordinary business” (id. at
12-13); (4) give 30 days' notice before resigning
(id. at 22); and (5) “maintain complete and
accurate books and records of [Kische's] business and
affairs” and promptly provide those records to Mr.
Uysal (id. at 23).
acting as Kische's Chief Executive Manager, Mr. Simsek
formed JD Stellar, LLC (“JD Stellar”), another
women's clothing company; transferred the registration of
a Kische design trademark-the Marseille mark-from Kische to
JD Stellar; and amended the lease of Kische's warehouse
space to name JD Stellar as the tenant. (Simsek Dep. at
31:11-13 (confirming that he was Kische's manager in
October of 2013), 62:3-8 (confirming that at the time of the
transfer of the Marseille mark to JD Stellar, Mr. Simsek
acted as a manager for both JD Stellar and Marseille); SAC
¶ 4.38, Ex. 32 (Dkt. # 75-2) (“Lease”) at
1-2.) These acts form the basis of Kische's breach of
contract and fiduciary duty claims.
to Mr. Simsek's version of events, Kische began to
experience business difficulties in 2012, and Mr. Simsek had
no choice but to take those actions. (Simsek Decl. (Dkt. #
89) ¶¶ 19, 34 (“I started JD Stellar . . . .
This was our contingency plan, should Kische totally
collapse.”); see also Walker Decl. (Dkt. # 90)
¶ 9.) Specifically, Mr. Uysal lost control of the entity
that manufactured clothing for Kische in Turkey, which made
fulfilling clothing orders difficult for Kische.
(Id.; Foreman Decl. (Dkt. # 91) ¶ 8, Ex. D
(“Uysal Dep.”) at 74-1:2.) Although Mr. Uysal
partnered with another manufacturer, Sharda, that partnership
proved difficult because Sharda had little experience
manufacturing clothing (Simsek Decl. ¶ 25), and the
relationship ended in September 2013 (id. ¶
27). Afterwards “over 100 Kische clothing orders went
undelivered and unpaid for” in 2013 and 2014.
(Id. ¶ 29.) Mr. Simsek tendered his resignation
on March 17, 2014, but helped Kische fulfill orders for a
period of time after that. (SAC ¶ 4.44, Ex. 24 (Dkt. #
75-2) (“Letter”) at 3-5; Simsek Decl. ¶ 42.)
moves for summary judgment on the duty and breach elements of
its contract and fiduciary duty claims and Mr. Simsek's
affirmative defenses to those claims. (Mot. at 3-4.) Mr.
Simsek opposes the motion. (Resp. (Dkt. # 88).)
parties first raise a number of evidentiary objections, which
the court addresses before turning to the merits of
Mr. Simsek requests that the court strike as privileged
Exhibits B and C to the declaration of Kische's counsel,
Dubs Ari Tanner Herschlip. (Resp. at 7 n.1; Herschlip Decl. at 2,
Exs. B, C.) In its motion, Kische relies on these exhibits to
demonstrate a valid contract between Kische and Mr. Simsek.
(See Mot. at 4-5, 16.) Mr. Simsek, however, contends
that the exhibits contain privileged communications between
him and his attorney. (Resp. at 7 n.1.)
attorney-client privilege protects confidential disclosures
made by a client to an attorney in order to obtain legal
advice” and “an attorney's advice in response
to such disclosures.” United States v. Ruehle,
583 F.3d 600, 607 (9th Cir. 2009). The privilege is strictly
construed because “it may impede full and free
discovery of the truth.” Skansgaard v. Bank of Am.,
N.A., No. C11-0988RJB, 2013 WL 828210, at *1 (W.D. Wash.
Mar. 6, 2013). The party asserting the privilege bears the
burden of proving an attorney-client relationship and that
the communications at issue are privileged. Ruehle,
583 F.3d at 607. Communications are privileged “(1)
[w]here legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by a client, (6) are at [the client's]
instance permanently protected (7) from disclosure by himself
or by the legal adviser, (8) unless the protection [is]
waived.” Id. (internal quotation marks
Simsek has not put forth sufficient argument or evidence
demonstrating that the attorney-client privilege protects the
communications Kische references. Indeed, Mr. Simsek raises
the issue only in a short footnote without addressing the
eight elements required to show that the privilege applies.
(See Resp. at 7 n.1.) Thus, the court cannot
conclude that the email exchanges are privileged. However,
because neither party disputes the validity of the Operating
Agreement and Kische has not properly authenticated the
exhibits, the court does not consider the supposedly
privileged communications in ruling on the motion for summary
judgment. See infra § III.B.2; (see
also Mot. at 4-5, 16 (citing the communications only to
demonstrate that Kische and Mr. Simsek formed a valid
Simsek further contends that Kische has not submitted a
declaration “to authenticate the email records
submitted in [its] Exhibits A, B, C, H, and
I.” (Resp. at 28 n.4.) The first three
exhibits are the emails between Mr. Simsek and his attorney,
and the fourth and fifth exhibits are emails involving Mr.
Simsek. (See Herschlip Decl. at 2-3, Exs. A, B, C,
H, I.) Because neither the sender nor a recipient of the
emails authenticates them, Mr. Simsek objects to the court
considering them on summary judgment. (Resp. at 28 n.4.)
ruling on a motion for summary judgment, the court may not
consider unauthenticated exhibits. See Canada v.
Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th
Cir. 1987) (“It is well settled that unauthenticated
documents cannot be considered on a motion for summary
judgment.”); Fed.R.Evid. 901(a) (“To satisfy the
requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims
it is.”). “An attorney may submit a declaration
as evidence to a motion for summary judgment.”
Clark v. Cty. of Tulare, 755 F.Supp.2d 1075, 1083
(E.D. Cal. 2010). However, the attorney's declaration
must be made on personal knowledge, and the attorney must be
competent to testify to the matters stated therein.
Fed.R.Civ.P. 56(c)(4) (stating that a “declaration used
to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the . . . declarant is competent to
testify on the matters stated”). “Declarations by
attorneys are sufficient only if the facts stated are matters
of which the attorney has knowledge, such as matters
occurring during the course of the lawsuit . . . .”
Tulare, 755 F.Supp.2d at 1084. “It is
insufficient for a party to submit, without more, [a
declaration] from her counsel . . . stating that [a document]
is a ‘true and correct copy.'” Orr v.
Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.
support of the motion for summary judgment, Mr. Herschlip
provides a declaration in which he attests that Exhibits A,
B, C, H, and I are “true and correct” copies of
the various email exchanges involving Mr. Simsek.
(See Herschlip Decl. at 1-2.) Mr. Herschlip is not,
however, a party to any of the emails, and there is no
indication that he otherwise has personal knowledge regarding
their subject matter. (See id, Exs. A, B, C, H, I.)
Thus, although he can attest that the emails exist, he is not
competent to testify that the exhibits are true and correct
copies of the emails. Orr, 285 F.3d at 773;
Tulare, 755 F.Supp.2d at 1084. The court concludes
that Kische has not properly authenticated the emails and
will not consider them as evidence in support of Kische's
Motion to Strike
part, Kische moves to strike a number of statements as
“immaterial, impertinent, scandalous, and . . . alleged
solely to create prejudice.” (Reply (Dkt. # 92) at 12.)
Specifically, Kische requests that the court strike the
following statements from Mr. Simsek's declaration and
his response to the summary judgment motion:
• “In or about January 2014, I received a phone
call informing me that Mr. Uysal had been shot in Turkey. I
was told that this happened due to his unpaid debts.”
(Simsek Decl. ¶ 36.)
• “The last time I spoke with Mr. Uysal was in
March 2014, when Mr. Uysal's wife threatened to have my
legs broken through her mafia connections.”
• “Based on the Turkish records I have seen
showing his extensive debts and Mr. Uysal's insistence
that we not send money transfers to Turkey under his name, I
know now that Mr. Uysal was unable to own a company in
Turkey, so he opened a new company named Capraz in the name
of his father-in-law, Abdullah Kagitkeser.”
(Id. ¶ 21.)
• “In October 2012, Mr. Uysal unexpectedly
informed me that Capraz needed to close, offering no further
details. I know now, after viewing Turkish records showing
that Mr. Kagitkeser lost his ownership in the company, that
again, the company's assets were seized by Turkish
authorities because of extensive debts.” (Id.
• “ . . . Mr. Uysal's misconduct in Turkey . .
. .” (Resp. at 17.)
• “Kische's owners' illegal actions in
Turkey rendering Kische unable to legally do its business . .
. .” (Id. at 16.)
• “Ms. Walker also received several threatening
emails and phone calls from Mr. Uysal.” (Id.
invokes Federal Rule of Civil Procedure 12(f) as its basis
for striking these statements and contends that they are
inadmissible under Federal Rules of Evidence 402, 403, 404,
701, 802, and 1002. (Reply at 13); see also Fed. R.
Evid. 402 (stating that “[i]rrelevant evidence is not
admissible”); Fed.R.Evid. 403 (stating that relevant
evidence may be excluded where its probative value is
substantially outweighed by the danger of a number of
factors); Fed.R.Evid. 404 (stating that “[e]vidence of
a person's character . . . is not admissible to prove
that on a particular occasion the person acted in accordance
with the character”); Fed.R.Evid. 701 (stating the
requirements for opinion testimony by a lay witness);
Fed.R.Evid. 802 (stating the rule against hearsay);
Fed.R.Evid. 1002 (stating the best evidence rule).
12(f) provides that a court “may strike from a pleading
an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
Here, Kische “has fallen victim to one of the classic
blunders: attempting to extend Rule 12(f)'s striking
power beyond pleadings.” United Nat'l Ins. Co.
v. Assurance Co. of Am., No. 2:10-CV-01086-JAD, 2014 WL
4960915, at *1 (D. Nev. June 4, 2014). “Rule 12(f)
cannot serve as the procedural vehicle for striking language
contained in motion papers.” Parker v. CMRE Fin.
Servs., Inc., No. 07cv1302 JM(AJB), 2007 WL 3276322, at
*4 (S.D. Cal. Nov. 5, 2007) (citing Sidney-Vinstein v.
A.H. Robins Co., 697 F.2d 880, 885-86 (9th Cir.
1983) (stating that “[u]nder the express language of
the rule, only pleadings are subject to motions to
strike”)). In addition, the Federal Rules of Evidence
provide no basis for striking the challenged statements in
Mr. Simsek's briefing because arguments made in
opposition to a motion for summary judgment are not evidence.
See Estrella v. Brandt, 682 F.2d 814, 819-20 (9th
Cir. 1982) (“Legal memoranda . . . are not evidence . .
. .”); Barcamerica Int'l USA Tr. v. Tyfield
Imps., Inc., 289 F.3d 589, 593 n.4 (9th Cir. 2002)
(“[A]rguments and statements of counsel are not
evidence . . . .”).
may, however, object to evidence submitted in response to a
motion for summary judgment. See Fed. R. Civ. P.
56(c)(2) (“A party may object that the material cited
to support or dispute a fact cannot be presented in a form
that would be admissible in evidence.”). On summary
judgment, the court focuses on the admissibility of the
proffered evidence's contents, rather than its form.
See Norse v. City of Santa Cruz, 629 F.3d 966, 973
(9th Cir. 2010) (“[T]he evidence presented at the
summary judgment stage does not yet need to be in a form that
would be admissible at trial.”). The court therefore
addresses each of Kische's evidentiary objections.
Because Kische cites several grounds for the objections but
does not clearly tie any of those grounds specifically to the
challenged statements, the court where necessary infers to
the best of its ability upon which grounds Kische objects to
each statement. (See Reply at 14.)
objections to the statements on the basis of Federal Rules of
Evidence 401, 402, and 403 are “inapplicable at the
summary judgment stage.” Montoya v. OrangeCty. Sheriff's Dep't, 987 F.Supp.2d 981, 994
(C.D. Cal. 2013); see also City of Tombstone v. United
States, No. CV-11-00845-TUC-FRZ, 2015 WL 11120851, at *3
(D. Ariz. Mar. 12, 2015) (same); Lindsey v. Clatskanie
People's Util. Dist., 140 F.Supp.3d 1077, 1096 (D.
Or. 2015) (holding that objections under Rules 401, 402, and
403 are “duplicative of the summary judgment
standard”). Because a court may grant summary judgment
only when there is no genuine dispute of material fact,
“relevance objections are redundant.” Burch
v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1119
(E.D. Cal. ...