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Select Comfort Corp. v. Baxter

United States District Court, D. Minnesota

December 5, 2016

Select Comfort Corporation and Select Comfort S.C. Corporation, Plaintiffs,
v.
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.

         This 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:

         ORDER

         1. Defendants' Request for Leave to File a Motion for Reconsideration (Doc. No. [334]) is DENIED.

         2. Defendants' Motion for Leave to Amend (Doc. No. [333]) is DENIED. Defendants' motion is untimely, prejudicial to Plaintiff, and not based on good cause for the relief requested.

         3. Defendants' Motion to Continue Trial Date (Doc. No. [450]) is MOOT.

         4. Defendants' Joint Motion to Consolidate Actions (Doc. No. [459]) 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.

         DEFENDANTS' MOTIONS IN LIMINE

         5. Defendants' Motion in Limine No. 1 For Instruction Regarding Strength of Plaintiffs' Marks (Doc. No. [339]) 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.

         6. Defendants' Motion in Limine No. 2 to Admit Rappeport Survey (Doc. No. [342]) 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.

         7. Defendants' Motion in Limine No. 3 to Exclude Documents Containing Defendants' Internal Communications Regarding Conversations with Consumers (Doc. No. [345]) 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 analysis.

         8. Defendants' Motion in Limine No. 4 For Instructions Restricting Evidence to Specific Claims (Doc. No. [348]) 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 claims.

         9. Defendants' Motion in Limine No. 5 to Establish the Relevancy of Plaintiffs' Trademark Enforcement Actions (Doc. No. [351]) 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.

         10. Defendants' Motion in Limine No. 6 to Bar Plaintiffs' Use of "Incontestable" (Doc. No. [358]) 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 motion.

         11. Defendants' Motion in Limine No. 7 to Admit Defendants' Rule 1006 Charts (Doc. No. [365]) is DENIED as premature. The Court will permit a Rule 104 Offer of Proof on the admission of summary charts under Rule 1006.

         12. Defendants' Motion in Limine No. 8 to Exclude Prior Acts of Scott Stenzel (Doc No [373]) 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 ...

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