Best Western International, Inc v. Doe et al

Filing 520

ORDER denying 479 Motion in Limine; denying 480 Motion in Limine; denying 481 Motion in Limine; granting in part and denying in part 482 Motion in Limine; denying 483 Motion in Limine; taking under advisement 485 Motion in Limine; taking under advisement 486 Motion in Limine; denying 489 Motion in Limine; granting 490 Motion in Limine; granting in part and denying in part 494 Motion in Limine. Trial is set to being 3/9/2009 at 9:00 a.m. Final conference set for 3/5/2009 at 4:30 p.m. Signed by Judge David G Campbell on 11/26/2008.(NVJ, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Best Western International, Inc., a non- ) ) profit Arizona corporation ) ) Plaintiff, ) ) vs. ) ) John Doe, et al., ) ) Defendants. )

No. CV-06-1537-PHX-DGC ORDER SETTING TRIAL

A Final Pretrial Conference was held on November 21, 2008. Counsel appeared on behalf of Plaintiff and Defendants. On the basis of the parties' written submissions and the hearing, IT IS HEREBY ORDERED: 1. 2. Trial in this matter shall begin on March 9, 2009, at 9:00 a.m. The trial shall last 5 days (March 9-13, 2009). Plaintiff shall be allotted 12

hours of trial time and Defendants shall be allotted 12 hours of trial time. The Court will keep track of each side's time. Opening and closing statements, direct examination, and cross-examination shall be counted against the parties' allotted time. 3. A final conference will be held on March 5, 2009, at 4:30 p.m. in Courtroom

603, Sandra Day O'Connor Federal Courthouse, 401 West Washington Street, Phoenix, Arizona 85003. Out-of-state counsel may participate by telephone. 4. The parties' proposed final pretrial order was approved by the Court as the

final pretrial order in this case. The order shall govern the presentation of evidence and other

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trial issues, and, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, shall be modified only to prevent manifest injustice. Evidence, objections, legal arguments, and relief not requested or identified in the order shall not be available at trial, except to prevent manifest injustice. 5. The Court addressed Best Western's motion in limine no. 1. Dkt. #485. The

Court took the motion under advisement. 6. The Court addressed Best Western's motion in limine no. 2. Dkt. #486. The

Court took the motion under advisement. 7. The Court addressed Best Western's motion in limine no. 3. Dkt. #494.

Defendants have represented that they will use exhibits 794, 874, 876, 926-29, 931-33 and the testimony of Mr. Cosgrove solely for impeachment. Because impeachment evidence need not be disclosed under the federal rules, Best Western's motion will be denied with respect to this evidence. The Court advised Defendants, however, that evidence qualifies for impeachment only if the subject matter of the evidence is solely relevant for impeachment. This test will be applied to any evidence Defendants seek to use for impeachment purposes. The Court took the motion under advisement with respect to exhibit 971, the assignment of claims to Mr. Dial. The relevancy of this exhibit will be considered in connection with Best Western's motion in limine no. 1. If the Court concludes that standing has been established by the assignment, Best Western may nonetheless assert evidentiary objections to the admission of the assignment at trial. Defendants stated that they did not intend to call any witnesses identified in Best Western's motion other than witnesses Cosgrove, Dorris, Quenneville, and West. Mr. Cosgrove has been addressed above. The Court will grant the motion with respect to witnesses Dorris, Quenneville, and West. These witnesses were not timely disclosed by Defendants, and Best Western's disclosure of these witnesses does not satisfy Defendants' disclosure obligation. Moreover, the Court concludes that the failure to disclose was not substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1).

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8.

The Court addressed Best Western's motion in limine no. 4. Dkt. #489. The

Court denied the motion reasons for stated on the record. 9. The Court addressed Best Western's motion in limine no. 5. Dkt. #490. Best

Western seeks to preclude Defendant Dial's damages computations which allegedly were not disclosed during discovery. a. In his tortuous interference claim, Mr. Dial seeks to recover damages

from Best Western for the removal of his hotel from the Best Western reservation system for four days in December of 2006. Best Western contends that Mr. Dial failed to disclose the amount of his damages during the discovery period. In response, Mr. Dial argues that his wife, Nidrah Dial, provided damages testimony during her deposition on February 15, 2008. The Court has reviewed that testimony. It does not disclose a damages computation or amount. Mr. Dial contends that his wife testified that the hotel lost 20 reservations as a result of the tortuous interference, but this is not what she said. Mrs. Dial testified that "[t]here is absolutely no way on earth that I could . . . say, yes, we lost 20 reservations." Dkt. #512-2 at page 4 of 10. Although Mrs. Dial testified that customers were lost during the four-day period, she provided no information from which Best Western could identify the damages claimed by Mr. Dial. Mr. Dial asserts that he provided an affidavit with information concerning damages in response to Best Western's motion for summary judgment, but this affidavit was provided after the close of discovery. Because Mr. Dial failed to comply with his obligation to produce a computation of damages and supporting information as required by Rule 26(a)(1)(A)(iii) of the Federal Rules of Civil Procedure, and because the Court cannot conclude that the failure was substantially justified or harmless, the Court will grant Best Western's motion with respect to Mr. Dial's damages on the tortuous interference claim. See Fed. R. Civ. P. 37(c)(1). b. With respect to his claim for breach of fiduciary duty against Mr.

Jaworowicz, Mr. Dial seeks to recover the attorneys' fees he has incurred in this litigation. Best Western complains that such damages were never timely disclosed as damages. In response, Mr. Dial asserts that he disclosed during discovery that he would be seeking to -3-

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recover attorneys' fees and costs. Mr. Dial cites to his amended counterclaim, but the counterclaim merely includes attorneys' fees in the prayer for relief at the end of the document. See Dkt. #90 at 10 ¶ D. This standard-form request for attorneys' fees did not advise Best Western that Dial was seeking to recover the fees as part of the damages on his fiduciary duty claim. Similarly, Mr. Dial cites to his initial disclosure statement which, under the category of a Rule 26 damages computation, stated: On his counterclaim, H. James Dial seeks compensatory and actual damages in the amount to be proven at trial. In addition, Mr. Dial seeks punitive damages, reasonable costs and attorney's fees in bring [sic] the counterclaim. With respect to those damages than [sic] can be calculated, if any, BWI [sic] will supplement these disclosures after a reasonable opportunity to conduct discovery. Dkt. #500 at page 10 of 49. This disclosure does not reveal that Mr. Dial is seeking attorneys' fees as part of the damages on his fiduciary duty claim. To the contrary, Mr. Dial states that he will be seeking "compensatory and actual damages in the amount to be proven at trial," and, in addition, will seek to recover his reasonable costs and attorneys' fees. Such a statement suggests that the attorneys' fees are separate from the damages Mr. Dial would seek to recover at trial. The disclosure would lead a reasonable reader to conclude that Mr. Dial would be seeking attorneys' fees in a post-trial proceeding, as is usually the case. Mr. Dial further asserts that he advised Best Western during settlement talks that he sought to recover his attorneys' fees, but such a demand is common in settlement discussions. It does not disclose that attorneys' fees were a component of the compensatory damages Mr. Dial sought to recover on the tortious interference claim. The Court concludes that Mr. Dial failed to disclose the computation of and support for his damages claim as required by Rule 26(a)(1)(A)(iii). As this disclosure was not made during the course of discovery, Best Western was denied an opportunity to conduct discovery concerning the claim. The Court concludes that the failure was not substantially justified or harmless, and therefore will grant the motion to exclude evidence in support of Mr. Dial's attorneys' fees damages claim. See Fed. R. Civ. P. 37(c)(1). -4-

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10.

The Court addressed Defendants' motion in limine no. 1.

Dkt. #479.

Defendants claim that Best Western should be precluded from introducing evidence concerning the 13 remaining posts at issue in the defamation claim because these posts suffer from the same defects as the 50 posts disposed of at summary judgment. This is an untimely motion for summary judgment. Defendants further argue that Best Western cannot lay foundation for five of the 13 posts. The Court cannot conclude, however, on the basis of the motions in limine, that the foundation for these posts will be insufficient. That is a matter that must be addressed at trial. The Court will deny Best Western's motion in limine no. 1. 11. The Court addressed Defendants' motion in limine no. 2. Dkt. #480. For

reasons stated on the record, the Court denied the motion. 12. The Court addressed Defendants' motion in limine no. 3. Dkt. #481. The

Court provided the following guidance. Only evidence concerning the 13 posts at issue in the defamation claim will be permitted as part of the defamation claim. The 50 posts that have been eliminated by summary judgment may not be admitted into evidence in the defamation claim. With respect to the breach of contract claim, Best Western may present evidence showing that its marks were used on the blog, but this claim will not be used to place before the jury a variety of posts designed to show that Defendants were acting improperly. The final pretrial order notes that Defendants used Best Western marks in approximately 25 posts. These posts will be relevant to the claim. To the extent Best Western seeks to prove that its marks were used in 1,000 posts, it may have a witness testify directly about that fact, but all of the posts will not be admitted into evidence. The Court concludes that the risks of undue delay and unfair prejudice substantially outweigh the marginal relevance of the numerous posts. See Fed. R. Ev. 403. Best Western contends that the nature of the posts may be relevant to rebut Defendant Dial's suggestion that Mr. Jaworowicz breached his fiduciary duty. The Court will address such issues during trial. With this guidance in place, the Court will deny Defendants' motion in limine no. 3. 13. The Court addressed Defendants' motion in limine no. 4. Dkt. #482. The

motion is moot with respect to 2005 faxes and other events. With respect to Ms. Schloemer, -5-

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the Court denied the motion ­ it will consider permitting her to testify if the Francis letter is used by Defendants for impeachment purposes and the Court concludes that it is admissible. The Court granted the motion with respect to Mr. Gibson's proposed testimony about the pre-suit blog investigation. His testimony on that topic was not timely disclosed, and the Court concludes that Defendants' failure to disclose it was not substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1). 14. The Court addressed Defendants' motion in limine no. 5. Dkt. #483. The

Court denied the motion as an untimely motion for summary judgment. 15. The Court provided the parties with proposed preliminary jury instructions and

voir dire questions. These instructions and questions will be addressed at the final conference to be held on March 5, 2009 at 4:30 p.m. DATED this 26th day of November, 2008.

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