BBK Tobacco & Foods, LLP v. 7th St Village Farm Inc.

Background

The court reviewed Galaxy VI Corp.’s papers opposing BBK Tobacco & Foods, LLP’s pending motion for summary judgment on damages. The papers included an affidavit from Said Ghnaim, identified as the owner and manager of the defendant business, and a declaration and opposition from Galaxy’s attorney, Elio Forcina. Galaxy did not file a memorandum of law or respond to BBK’s statement of undisputed material facts, as required by the Southern District of New York’s local rules.

The court noted that the Ghnaim affidavit repeated much of an earlier affidavit submitted in opposition to BBK’s earlier motion for summary judgment on liability. The court had previously granted summary judgment on liability on BBK’s claims under the federal trademark statute, based in part on the undisputed fact that BBK’s investigator bought one package of counterfeit rolling papers and one counterfeit rolling tray from the defendant’s store. The court nevertheless stated that the Ghnaim affidavit appeared to be based on personal knowledge and would be considered, to the extent it complied with Federal Rule of Civil Procedure 56(c)(4).

The Forcina Declaration

The court treated the Forcina declaration differently. It was not made under penalty of perjury and was not based on, or presented as based on, the attorney’s personal knowledge. It contained no citations to evidence, cases, statutes, or other legal authority and did not present recognizable legal argument. Instead, the declaration primarily criticized BBK’s damages request, motion, lawsuit, discovery conduct, investigator, and counsel, and speculated about BBK’s litigation goals.

Ruling

The court struck Docket Number 150 under Federal Rule of Civil Procedure 12(f), which permits a court to remove improper material from a filing. It concluded that the Forcina declaration functioned neither as a proper declaration nor as a legal brief and was inconsistent with the civility and professionalism expected of attorneys practicing in the court. Because counsel had filed the attorney’s declaration and the Ghnaim affidavit together as one document, the court directed counsel to refile the Ghnaim affidavit if Galaxy wanted it considered in opposition to the pending damages motion. The order did not decide the pending damages motion itself.