(main body of motion)

 

Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, Plaintiffs Karen Dudnikov and Michael Meadors, enter a Motion To Strike the Declaration Of David Oakes, originally submitted with "Defendant's Opposition to Plaintiffs' Motion for Summary Judgment or in the Alternative Declaratory Judgment" on April 5, 2004. I. INTRODUCTION         On April 11, 2004, Plaintiffs emailed David Caplan, counsel for MGA Entertainment ("MGA"), to notify him the "Declaration of David Oakes in Support of Defendant's Opposition to Plaintiffs' Motion for Summary Judgment or in the Alternative Declaratory Judgment" ("Decl Oakes #1") was seriously flawed (see exhibit #1). The declaration was obviously a boiler-plate document with a few paragraphs inserted but not proof-read for inconsistencies (see exhibit #2). It appears obvious that David Oakes did not seriously read the first declaration before signing because the flaws were very easy to spot and so numerous. That he did not read the document with due diligence before signing is inconsistent with the spirit and intent of the law. David Oakes is a lawyer and knows the requirements. The Plaintiffs suggested to counsel on April 11, 2004, that they consider having the document properly drawn and resubmitted to the Court.         On April 12, 2004, MGA resubmitted the "Declaration of David Oakes in Support of Defendant's Opposition to Plaintiffs' Motion for Summary Judgment or in the Alternative Declaratory Judgment" ("Decl Oakes #2") with a Notice of Errata.         The signature page for both Declarations is the same page as evidenced by the fax machine notations in the copy emailed to Plaintiffs (see exhibit#3), the original filing (see exhibit #2) and the copy in the court file.. II. SPECIFIC EVIDENTARY OBJECTIONS         1. For an affidavit or declaration to be properly executed it must be read and signed by the party making the averments. The absence of a signature makes the submission invalid and inadmissible. Rule 11(a) of the F.R.C.P. states that an "…unsigned paper shall be stricken…".         2. D.C.COLO.LCivR 5.1D states: If a facsimile copy is filed in lieu of the original pleading or paper, the attorney or pro se party shall maintain the original document including the certificate of service.         D.C.COLO.LCivR 5.1E states: Signatures on pleadings or papers filed by facsimile shall have the same legal effect as original signatures on pleadings actually filed with the court.         3. There is no original signature for Decl Oakes #2 for the attorney for MGA to maintain as required by D.C.COLO.LCivR 5.1D because it is obvious the Decl Oakes #2 was never submitted to David Oakes for signature. If it had been, the correct signature would have been faxed with the document and not as an additional signature page from a previous filing.         4. The absence of a signed statement under oath violates the explicit oath or affirmation requirement of both the federal and state courts for evidence submitted to support or defend a motion for summary judgment. Original signatures are vital to the integrity of the system. If they are not required then the system breaks down. Anyone could file a motion with the court with an old signature page attached.         5. Considering the serious flaws of the original declaration, it is reasonable to assume the attorneys did not want to attract unfavorable attention to themselves by re-submitting the "correct" declaration to David Oakes and simply made the corrections and attached the original signature page to the new declaration. As such, the submission of the Decl Oakes #2 to the Court without it being read and without a valid signature was a deliberate act, not an error.         6. As such, the attorneys for MGA cannot claim they resubmitted the replacement document in "good faith" and should be allowed an exception to the rules.         7. The time and effort required to submit the document for reading and to obtain an original signature was minimal. The Plaintiffs did not pressure MGA to replace the document by any particular time. For the attorneys to claim their client shouldn't be harmed by their error is unacceptable as this was not error but a conscious move on their part.         8. The re-submission of the seriously flawed declaration with the signature page from the original declaration was not just a "matter of formality", but is a "matter of substance" wherein the person making the averment is swearing under penalty of perjury that the contents contained therein are true. Re-submitting a new declaration is allowable but not one that is unread and attaching the old signature page. Even if Oakes told them to use the old signature page, which is unlikely, with respect to major decisions affecting the likely outcome of the case, they should adopt the same principle as physicians: first, do no harm to the client". They should have counseled him that that is not a good move. Signing another piece of paper is not a hardship.         9. MGA will want to say to the Court that they will replace the signature and everything will be fine. To permit such a cure for a deliberate and so obvious an error would disregard the historical importance of the oath or affirmation. To reward this sort of behavior is to invite repetitions of it.         10. The apparent failure of the attorneys to have their client review and sign the declaration prior to filing the same constitutes neglect of a legal matter, failure to adequately communicate with a client in violation and a continuing misrepresentation that they had sent their client this declaration, all violations of Colorado RPC and likely violations of California standards as well.         11. The deliberate submission of the Decl Oakes #2 without a valid signature displays a lack of respect for the Court and Its rules. This was not a harmless error. Rule 11(a) of the F.R.C.P. assumes error and allows replacement for error, not a deliberate act.         12. And while MGA will insist the replacement of the unsigned document is just a technicality, the Court has adhered to the letter of the law concerning filings. In Dudnikov v. E! Entertainment Television, Civil Action 03-D-2334 (PAC) (D. Colo. 2003) the Court denied a Motion For Costs Of Service because D.C.COLO.LCivR 7.1A requires the moving party to state the specific efforts made to comply with the rule and the moving party had not stated such because there was no opposing counsel with whom to confer, which did not matter to the letter of the law.         13. MGA will also insist that the changes to the document were superficial, a mere typographical error, a comparison of the two will show substantial content change. The original document was unreadable as it pertained to the legal issues at hand.         14. Rule 5(a) of the F.R.C.P. requires copies of all papers be served upon the other party. The Decl Oakes #2 filed with the Court contains no Certificate of Service as required by D.C.COLO.LCivR 5.1F, and to date, the Plaintiffs have not received a mailed copy of Decl Oakes #2 or the Notice of Errata. On April 22, 2004 the Plaintiffs emailed MGA: We have not received a signed hard copy of the corrected declaration of Mr Oakes. Did you mail us a copy?         The response was that they had mailed it to us.         15. The copy that counsel for MGA supplied to Plaintiffs via email was not the same as the copy filed with the court (see file name footer at the bottom of the pages of exhibit #3 and the copy in the Court file). III. CONCLUSION         For these reasons, Plaintiffs respectfully request the Declaration of David Oakes be excluded from any consideration in the Defendant's Motion For Summary Judgment and any other motions and/or pleadings.         Should the Court agree with this Motion To Strike, Plaintiffs request the Court re-consider their Motion For Summary Judgment since the primary basis for disallowing the Motion For Summary Judgment was the Decl Oakes #2.         In addition, Plaintiffs' understanding of Rule 12(f) of the F.R.C.P. is that a motion under this rule delays the required response to a pleading until the issue is resolved. If this is not the correct interpretation, Plaintiffs request the Court stay the response date set for Plaintiffs to respond to Defendant's Motion For Summary Judgment until this issue is resolved since the Decl Oakes #2 is a major portion of the Motion. This short additional delay will not prejudice defendants or their motion. Plaintiffs request the Court give them at least 14 days to respond to the Defendant's Motion For Summary Judgment after the date this motion has been adjudicated.         Respectfully submitted this 6th Day of January, 2005. Karen Dudnikov Michael Meadors 3463 Maskoke Trail P.O. Box 87 Hartsel, Colorado 80449 PRO SE PLAINTIFFS 303-913-6075 Certificate of Service I HEREBY CERTIFY that on this 6th Day of January 2005, a true and correct copy of the PLAINTIFFS' MOTION TO STRIKE EVIDENCE IMPROPERLY SUBMITTED AND REQUEST TO STAY RESPONSE DEADLINE FOR SUMMARY JUDGMENT was mailed, with all attachments, postage prepaid, Priority Mail with delivery confirmation to: Larry W McFarland David Caplan Keats McFarland & Wilson LLP 9720 Wilshire Blvd, Penthouse Suite Beverly Hills, CA 90212 (310) 248-3830 Phone (310) 860-0363 Facsimile _______________________________________ Michael Meadors     (end of motion)