United States District Court, D. Minnesota
Select Comfort Corporation and Select Comfort S.C. Corporation, Plaintiffs,
John Baxter; Dires, LLC d/b/a Personal Touch Beds and Personal Comfort Beds; Digi Craft Agency, LLC; Direct Commerce, LLC d/b/a Personal Touch Beds; Scott Stenzel; and Craig Miller, Defendants.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK United States District Judge.
matter came before the Court for a pretrial hearing on
November 15-16, 2016. Consistent with, and in addition to the
Court's rulings and remarks from the bench, and based
upon the memoranda, pleadings, and arguments of counsel, and
the Court being otherwise duly advised in the premises, the
Court hereby enters the following:
Defendants' Request for Leave to File a Motion for
Reconsideration (Doc. No. ) is DENIED.
Defendants' Motion for Leave to Amend (Doc. No. ) is
DENIED. Defendants' motion is untimely,
prejudicial to Plaintiff, and not based on good cause for the
Defendants' Motion to Continue Trial Date (Doc. No.
) is MOOT.
Defendants' Joint Motion to Consolidate Actions (Doc. No.
) is DENIED. However, in the event that
the parties waive a jury trial in this action and, instead,
opt for a court trial, the Court is willing to receive
evidence that would bear on both this action and the related
declaratory judgment action.
MOTIONS IN LIMINE
Defendants' Motion in Limine No. 1 For Instruction
Regarding Strength of Plaintiffs' Marks (Doc. No. )
is DENIED. The Court will address any
concerns regarding the law on the strength of the marks in
its instructions to the jury or in any limiting instruction
in the event the issue comes up prior to the parties resting
their respective cases.
Defendants' Motion in Limine No. 2 to Admit Rappeport
Survey (Doc. No. ) is GRANTED IN PART
and DENIED IN PART as follows: The Court
concludes that the Rappeport Report itself is presumptively
inadmissible pursuant to its Article 4 analysis; however, the
facts of the survey are presumptively admissible based on the
Court's Article 4 analysis, assuming that proper
foundation for the facts of the survey are established.
Defendants' Motion in Limine No. 3 to Exclude Documents
Containing Defendants' Internal Communications Regarding
Conversations with Consumers (Doc. No. ) is
DENIED. Documents containing Defendants'
internal communications regarding conversations with
consumers are presumptively admissible whether such evidence
comes in for the truth of the matter or not. If the evidence
comes in for the truth of the matter asserted, it falls under
the state-of-mind exception, Rule 803(3), or as a Rule 803(6)
business record. If the evidence comes in as non-hearsay,
then it is admissible evidence of consumer confusion or
knowledge and reaction of the Defendants. Consequently, the
Court concludes that this evidence survives its Article 4
Defendants' Motion in Limine No. 4 For Instructions
Restricting Evidence to Specific Claims (Doc. No. ) is
premature. The Court will address this issue as it comes up
during trial in the event there is a timely request for
limiting instructions regarding proper scope and specific
Defendants' Motion in Limine No. 5 to Establish the
Relevancy of Plaintiffs' Trademark Enforcement Actions
(Doc. No. ) is GRANTED IN PART and
DENIED IN PART as follows:
a. Assuming proper foundation is laid, evidence of
Plaintiffs' cease and desist letters to the Defendants is
presumptively admissible. The Court concludes that this
evidence survives its Article 4 analysis.
b. Any evidence of other litigation or enforcement actions is
presumptively inadmissible. The Court concludes that other
litigation or enforcement actions do not survive the
Court's Article 4 analysis, including Rule 403.
Defendants' Motion in Limine No. 6 to Bar Plaintiffs'
Use of "Incontestable" (Doc. No. ) is
provisionally GRANTED absent further order
of the Court based upon the Court's Article 4 analysis,
including Rule 403. Testimony or argument of
"incontestability" shall be presumptively
inadmissible. In light of the Court's ruling on the in
limine motions, until such time as the Court understands the
specific purpose for which the fact of incontestability is
being offered, the Court cannot definitively rule on this
Defendants' Motion in Limine No. 7 to Admit
Defendants' Rule 1006 Charts (Doc. No. ) is
DENIED as premature. The Court will permit a
Rule 104 Offer of Proof on the admission of summary charts
under Rule 1006.
Defendants' Motion in Limine No. 8 to Exclude Prior Acts
of Scott Stenzel (Doc No ) is GRANTED IN
PART and DENIED IN PART as follows:
a. Plaintiffs will not be allowed to submit evidence of or
reference bankruptcy, and Plaintiffs' trial exhibit 663
(October 22, 2012 ...