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University Healthsystem Consortium v. Unitedhealth Group, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 19, 2014

UNIVERSITY HEALTHSYSTEM CONSORTIUM, Plaintiff,
v.
UNITEDHEALTH GROUP, INCORPORATED, Defendant

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[Copyrighted Material Omitted]

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For University Healthsystem Consortium, Plaintiff: Meredith M Wilkes, LEAD ATTORNEY, Angela R. Gott, Anthony T. Jacono, Jones Day, Cleveland, OH; David L. Witcoff, Jones Day, Chicago, IL.

For UnitedHealth Group Incorporated, Defendant: Hamish P.M. Hume, LEAD ATTORNEY, Abby Lauren Dennis, Boies, Schiller & Flexner, Llp, Washington, DC; Bart Allen Lazar, Seyfarth Shaw LLP, Chicago, IL; Jason Scott Zack, Boies, Schiller & Flexner, Llp, Miami, FL; Parker H Bagley, Boies, Schiller & Flexner, Llp, New York, NY; Vincent Mark Smolczynski, Seyfarth Shaw Llp, Chicago.

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MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge.

Although four-letter words have a reputation for causing trouble, it is a three-letter acronym, UHC, that has precipitated the present dispute between Plaintiff University Healthsystem Consortium and Defendant UnitedHealth Group, Incorporated. Plaintiff alleges that Defendant improperly has used its trademark, " UHC," in connection with healthcare-related services. Plaintiff alleges that Defendant violated the federal Lanham Act, 15 U.S.C. § 1051 et seq., by willfully infringing a federally registered trademark, engaging in unfair competition, and falsely designating the origin of and falsely advertising the mark. Plaintiff also alleges that Defendant willfully violated the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510, and engaged in common law trademark infringement and unfair competition.

Defendant answered Plaintiff's complaint, and then, one week later and without the benefit of discovery, filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 [23]. In its motion for summary judgment, Defendant argues that Plaintiff's claims are untimely and should be barred by the equitable doctrine of laches or the applicable state statutes of limitation. Plaintiff moved to strike one of the declarations Defendant submitted in support of its summary judgment motion. See [50 and 51]. Plaintiff also filed both a substantive response to the motion and a Rule 56(d) motion for additional discovery [55 and 56]. Plaintiff later filed a motion for leave to file a surreply in response to Defendant's reply brief [77].

For the reasons stated below, Plaintiff's motion to strike [50 and 51] is denied. Plaintiff's motion for leave to file surreply [77] is granted. Defendant's motion for summary judgment [23] is denied. And Plaintiff's motion for additional discovery [55 and 56] is denied as moot. This matter is set for status on October 2, 2014 at 9:00 a.m.

I. Motion to Strike

The Court first addresses the motion to strike, as its resolution will affect the universe of facts available for the Court's consideration.

In support of its motion for summary judgment, Defendant has submitted a declaration from Thomas Paul, Chief Consumer Officer of UnitedHealthcare. The Paul declaration provides the exclusive evidentiary support for seven of the fifty factual assertions contained in Defendant's Local Rule 56.1 statement. Plaintiff has moved to strike the Paul declaration on the grounds that it fails to comply with Federal Rule of Civil Procedure 56(c)(4)

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and Federal Rule of Evidence 602, both of which require testimony to be based on personal knowledge, and that the exhibits attached to the Paul declaration lack foundation or are inadmissible hearsay. Defendant responds that Paul's declaration is appropriate for the Court's consideration notwithstanding his lack of personal knowledge as to some of its contents because he has been designated as a corporate witness pursuant to Federal Rule of Civil Procedure 30(b)(6). Defendant also defends the admissibility of the exhibits to the declaration.

It is the function of the Court, with or without a motion to strike, to review carefully statements of material facts and to eliminate from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement. See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D. Ill. Sept. 30, 2004); Rosado v. Taylor, 324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004). Thus, any statements or responses that contain legal conclusions or argument, are evasive, contain hearsay or are not based on personal knowledge, are irrelevant, or are not supported by evidence in the record will not be considered by the Court in ruling on Defendant's summary judgment motion. Motions to strike at the summary judgment stage are disfavored and generally unnecessary, for the Court may only consider admissible evidence when ruling on a motion for summary judgment. Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009).

In any event, the Court concludes that the Paul declaration itself is admissible. Rule 30(b)(6) permits a party to name as a deponent a public or private corporation or other legal entity. See Fed.R.Civ.P. 30(b)(6). " The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf." Id. Defendant designated Paul to be its Rule 30(b)(6) representative, and he sat for a deposition in that capacity on January 10, 2014. Although Plaintiff is correct that Rule 30(b)(6) by its terms refers only to depositions, courts have held that a Rule 30(b)(6) witness may testify at trial " as to matters within corporate knowledge to which he testified in deposition." Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 434 (5th Cir. 2006). That is, a Rule 30(b)(6) witness may testify both in a deposition and at trial to matters as to which she lacks personal knowledge, notwithstanding the requirements of Federal Rule of Evidence 602. The Court discerns little principled distinction between allowing a Rule 30(b)(6) witness to testify at trial without personal knowledge and allowing him to testify via affidavit at the summary judgment stage without personal knowledge, particularly where the witness's Rule 30(b)(6) deposition expressly reaffirmed the accuracy of the affidavit. See [70-8] at 150:9-151:23. See Humphreys v. Bank of Am., 557 F.App'x 416, 424 n.6 (6th Cir. 2014); cf. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997) (clarifying that affidavits may be admissible at summary judgment " provided, of course, that the affiant's or deponent's testimony would be admissible if he were testifying live" ).

Other courts considering the issue of whether Rule 56(c)(4)'s personal knowledge requirement applies to Rule 30(b)(6) witnesses have allowed the witnesses' affidavits to be submitted at the summary judgment stage. See, e.g., Humphreys, 557 F.App'x at 424 n.6; Stalley v. ADS Alliance Data Sys., Inc., 2014 WL 129069, at *2-3 (M.D. Fla. Jan. 14, 2014); Weinstein v. D.C. Hous. Auth., 931 F.Supp.2d 178, 186-87

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(D.D.C. 2013) (collecting cases). The Court finds the reasoning of these cases more persuasive, and the factual circumstances more analogous to those presented here, than the facts and reasoning espoused in Soutter v. Equifax Information Services, LLC, 299 ...


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