Pharm.Checker.com v. Nat'l Ass'n of Bds. of Pharm.

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PHARMACYCHECKER.COM, Plaintiff, v. NATIONAL ASSOCIATION OF BOARDS OF PHARMACY, et al., Defendants.

No. 19-CV-7577 (KMK)

United States District Court, S.D. New York

March 28, 2023

Appearances:

Aaron R. Gott, Esq.

James F. Lerner, Esq.

Matthew R. Riley, Esq.

Bona Law PC

Counsel for Plaintiff/Counter-Defendant

Erik T. Koons, Esq.

Jana I. Seidl, Esq.

Baker Botts LLP

Counsel for Defendant/Counter-Plaintiff National Association of Boards of Pharmacy

Brian E. Casey, Esq.

Barnes & Thornburg LLP

Counsel for Defendant/Counter-Plaintiff National Association of Boards of Pharmacy

Leslie E. John, Esq.

Justin W. Lamson, Esq.

Elizabeth P. Weissert, Esq.

James A. Mitchell, Esq.

Ballard Spahr LLP

Counsel for Defendant Partnership for Safe Medicines, Inc.

Rachel J. Adcox, Esq.

Melanie Kiser, Esq.

Denise Plunkett, Esq. Jeny Maier, Esq.

Axinn Veltrop & Harkrider LLP

Washington, DC and New York, NY

Counsel for Defendant Alliance for Safe Online Pharmacies

Barry Werdin, Esq.

Nicholas G. O. Veliky, Esq.

Joshua M. Herman, Esq.

Herrick, Feinstein LLP New York, NY

Counsel for Defendant Center for Safe Internet Pharmacies Ltd.

OPINION & ORDER

KENNETH M. KARAS, United States District Judge:

PharmacyChecker.com (“PCC” or “Plaintiff”) brings this Action against the National Association of Boards of Pharmacy (“NABP”), Alliance for Safe Online Pharmacies (“ASOP”), Center for Safe Internet Pharmacies Ltd. (“CSIP”), and Partnership for Safe Medicines (“PSM”; collectively, “Defendants”) alleging that Defendants unlawfully conspired to restrain trade in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, and that NABP falsely advertised or promoted in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125. (See generally Am. Compl. (Dkt. No. 82).)^[1]Before the Court are four motions: (1) Defendants' Joint Motion for Summary Judgment on Plaintiff's Sherman Act § 1 claim, (see Not. of Mot. (“SJ Not. of Mot.”) (Dkt. No. 263)); (2) Plaintiff's Motion to Strike Portions of Defendants' Submissions in Support of Defendants' Motion for Summary Judgment, (see Pl.'s Mot. to Strike Portions of Def.'s Submissions (“Mot. to Strike”) (Dkt. No. 273)); (3) Defendants' Joint Motion to Strike Portions of the Declaration of Gabriel Levitt (see Defs.' Pre-Motion Letter to Strike (“Levitt Decl. PML”) (Dkt. No. 280)); and (4) Defendants' Joint Motion to Exclude the Expert Testimony of Benjamin England, Esq., (see Not. of Mot. (“Daubert Not. of Mot.”) (Dkt. No. 260)). For the following reasons, Defendants' Joint Motion for Summary Judgment on Plaintiff's Sherman Act § 1 claim is granted, Plaintiff's Motion to Strike is denied, Defendants' Motion to Strike is denied, and Defendants' Joint Motion to Exclude Expert Testimony is granted in part and denied in part.

I. Background

A. The Parties' Motions to Strike

To start, the Court must address the Parties' motions to strike, which ask this Court to strike portions of both Plaintiff's and Defendants' submissions related to Defendants' motion for summary judgment. (See generally Mot. to Strike; Levitt Decl. PML; Defs Mem. of Law in Supp. of Mot. (“Defs.' Mot. to Strike”) (Dkt. No. 288).) “Because ‘a decision on the motion to strike may affect [the movant's] ability to prevail on summary judgment,' it is appropriate to consider a motion to strike prior to a motion for summary judgment.” Pugliese v. Verizon N.Y. Inc., No. 05-CV-4005, 2008 WL 2882092, at *5 (S.D.N.Y. July 9, 2008) (alterations in original) (quoting Gucci Am., Inc. v. Ashley Reed Trading, Inc., No. 00-CV-6041, 2003 WL 22327162, at *2 (S.D.N.Y. Oct.10, 2003)); see also Pearlstein v. BlackBerry Ltd., No. 13-CV-7060, 2022 WL 19792, at *7 (S.D.N.Y. Jan. 3, 2022) (“[I]f [the] defendants' motion to strike is denied, there are numerous genuine issues of material fact that would preclude summary judgment in their favor.”). Specifically, “[b]ecause the purpose of summary judgment is to weed out cases in which there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law, it is appropriate for district courts to decide questions regarding the admissibility of evidence on summary judgment,' where the Court must exercise this ‘gatekeeper' role.” Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 138 F.Supp.3d 352, 398 (S.D.N.Y. 2015) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)).

In its Memorandum of Law, Plaintiff argues that certain exhibits and statements “should be stricken and/or disregarded because they violate the Federal Rules of Evidence, are false, and/or blatantly misrepresent the evidence.” (Mot. to Strike 1.) Specifically, Plaintiff argues that several of Defendants' statements pursuant to Local Rule 56.1 “rely[] on quoted deposition questions masquerading as testimony.” (Id.) Plaintiff also argues that several exhibits are not properly authenticated, contain inadmissible hearsay, and lack foundation. (Id. at 8.)

In their Memorandum of Law, Defendants argue that Plaintiff offered “rebuttal-type expert witness testimony” in a declaration by PCC's President Gabriel Levitt accompanying Plaintiff's 56.1 reply. (Defs.' Mot. to Strike 2.) Specifically, Defendants request that the Court strike nine statements from the Levitt declaration for lack of foundation based on Mr. Levitt's expertise, as well as for “conclusory opinions” that “contradict the findings of Defendants' SEO expert without evidentiary support.” (Id. at 2-5.)

For the reasons stated below, Plaintiff's Motion to Strike and Defendants' Motion to Strike are both denied.

1. Applicable Law

Under Local Rule 56.1, motions for summary judgment must be supported by “a separate, short[,] and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried” and, for each paragraph, a “citation to evidence which would be admissible.” Local Rules of the United States District Courts for the Southern and Eastern District of New York, Rule 56.1(a) & (d) (“Local Rule 56.1”). “The purpose of Local Rule 56.1 is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.” Mayaguez S.A. v. Citibank, N.A., No. 16-CV-6788, 2022 WL 901627, at *8 (S.D.N.Y. Mar. 25, 2022) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).

Accordingly, a Rule 56.1 statement “is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.” Holtz, 258 F.3d at 74.

However, “[m]otions to strike are generally disfavored and will not be granted unless the matter asserted clearly has no bearing on the issue in dispute.” Pearlstein, 2022 WL 19792, at *7 (quoting Kehr ex rel. Kehr v. Yamaha Motor Corp., U.S.A., 596 F.Supp.2d 821, 829 (S.D.N.Y. 2008)). “A party seeking to strike a Rule 56.1 statement bears a heavy burden ....” Christians of Cal., Inc. v. Clive Christian N.Y., LLP, No. 13-CV-275, 2014 WL 3407108, at *2 (S.D.N.Y. July 7, 2014) (quotation marks and citation omitted). Accordingly, “courts in this Circuit frequently deny motions to strike paragraphs in Rule 56.1 statements, and [instead] simply disregard any improper assertions.” Ross Univ. Sch. Of Med., Ltd. v. Brooklyn-Queens Health Care, Inc., No. 09-CV-1410, 2012 WL 6091570, at *6 (E.D.N.Y. Dec. 7, 2012) (collecting cases), report and recommendation adopted in relevant part, 2013 WL 1334271 (E.D.N.Y. Mar. 28, 2013); see also In re Namenda Direct Purchaser Antitrust Litig., No. 15-CV-7488, 2017 WL 6606629, at *1 (S.D.N.Y. Dec. 20, 2017) (disregarding improper legal argument in 56.1 statement).

For that reason, “[w]here . . . the record does not support the assertions in a Local 56.1 statement, those assertions [are] disregarded and the record reviewed independently.” Holtz, 358 F.3d at 74; see also Baity v. Kralik, 51 F.Supp.3d 414, 419 (S.D.N.Y. 2014) (finding statements “lack[ing] citations to admissible evidence” to violate Local Rule 56.1 and Federal Rule of Civil Procedure 56). Similarly, the Court can also disregard legal conclusions or unsubstantiated opinions in a Local Rule 56.1 statement. See Am Gen. Life Ins. Co. v. Diana Spira 2005 Irrevocable Life Ins. Trust, No. 08-CV-6843, 2014 WL 6694502, at *1 (S.D.N.Y. Nov. 25, 2014) (“The Court grants [the plaintiff's] motion [to strike] as to argumentative statements in the [56. 1 statement] and as to purported factual statements which are unsupported by any citation to record evidence.”); Epstein v. Kemper Ins. Cos., 210 F.Supp.2d 308, 314 (S.D.N.Y. 2002) (“Statements in an affidavit or Rule 56.1 statement are inappropriate if they are not based on personal knowledge, contain inadmissible hearsay, are conclusory or argumentative, or do not cite to supporting evidence.”); Simmons v. Woodycrest Ctr. for Human Dev., Inc., No. 10-CV-5193, 2011 WL 855942, at *1 n.1 (S.D.N.Y. Mar. 9, 2011) (disregarding portions of the defendants' Rule 56.1 statement consisting of legal conclusions or “gross distortions of the summary judgment record”). Importantly, Courts have “broad discretion to determine whether to overlook a party's failure to comply with local court rules.” Holtz, 258 F.3d at 73.

2. Plaintiff's Motion to Strike

In contravention of this Court's Individual Rules, Plaintiff filed an unauthorized motion asking the Court to strike, in whole or in part, over a quarter of Defendants' statements pursuant to Rule 56.1 and related exhibits: 37 statements and 24 exhibits to be exact. (See generally Mot. to Strike.) Plaintiff proffers several overlapping reasons for striking each statement and exhibit including alleging that Defendants...