Soilworks LLC v Midwest Industrial Supply Inc

Filing 103

MOTION in Limine to Bar Evidence Concerning Soilworks' Costs by Midwest Industrial Supply Inc. (Attachments: # 1 Exhibit (Soilworks' Responses to Midwest's Document Production Requests))(Bautista, Jill)

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Soilworks LLC v Midwest Industrial Supply Inc Doc. 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Craig A. Marvinney, 0004951 (OH) John M. Skeriotis, 0069263 (OH) Jill A. Bautista, 0075560 (OH) BROUSE MCDOWELL 388 S. Main Street, Suite 500 Akron, Ohio 44311-4407 Telephone: 330-535-5711 Email: cmarvinney@brouse.com, jskeriotis@brouse.com, jbaut ista@brouse.com Admitted pro hac vice Donald L. Myles, Jr., 007464 (AZ) JONES, SKELTON & HOCHULI, P.L.C. 2901 N. Central Ave., Suite 800 Phoenix, Arizona 85012 Telephone: 602-263-1700 Email: dmyles@jshfirm.com Attorneys for Defendant/Counterclaimant Midwest Industrial Supply, Inc. UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA SOILWORKS, LLC, an Arizona NO.: 2:06-CV-2141-DGC corporation, Plaintiff / Counterdefendant / Counterclaimant, v. MIDWEST INDUSTRIAL SUPPLY, INC., an Ohio corporation authorized to do business in Arizona, Defendant / Counterclaimant / Counterdefendant. I. MIDWEST INDUSTRIAL SUPPLY, INC.'S MOTION IN LIMINE TO BAR EVIDENCE CONCERNING SOILWORKS, LLC'S COSTS INTRODUCTION Defendant Midwest Industrial Supply, Inc. ("Midwest") moves this Court in limine to preclude Plaintiff Soiworks, LLC ("Plaintiff") from presenting any evidence regarding Plaintiff's costs for producing and marketing its products. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. ARGUMENT As part of its First Requests for Production of Documents and Things, Midwest asked Plaintiff to produce documents which would evidence its costs: 21. [Provide] [a]nnual, quarterly, and monthly documents, things, and electronically stored information from which the following may be determined for all of Plaintiff's Products: the amount of product sold, sales figures, gross receipts, production costs, manufacturing costs, material costs, and/or labor costs. 31. All documents, things, and electronically stored information regarding impressions, purchasing of keywords, Keywords and "costs per click" from all search engines Plaintiff advertises upon related to Plaintiffs Products. (Soilworks, LLC's Repsonses to Midwests Industrial Supply, Inc.'s First Request for Production of Documents and Things ("Plaintiff's Response"), Requests 21 and 31, relevant pages attached as Exhibit A). Plaintiff did not initially provide any documents in response to these requests, and further, it failed to supplement its responses to provide responsive documents. Plaintiff, thus, is precluded pursuant to Fed. Civ. R. 37(c) from introducing any evidence at trial of its costs for producing and marketing its products. Rule 26(e) of the Federal Rules of Civil Procedure requires that "[a] party who has ... responded to ... [a] request for production ... must supplement or correct its disclosure or response." Rule 37(c) of the Federal Rules of Civil Procedure provides that a party which fails to supplement its answers with new information if its failure is not substantially justified or harmless is "not allowed to use that information." See Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1028 (9th Cir. 2003) (holding that non-disclosed manual was excluded pursuant to Fed.Civ.R. 37(c)); see also Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2007); International Flora Technologies, Ltd. v. Clarins U.S.A., Inc., Case No. 06-1372-PHX-ROS, 2008 WL 4174894 (D.Ariz. 2008) 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (holding that a non-disclosed patent claim was excluded pursuant to Fed. Civ. 37(c)(1)). In response to Midwest's Request for Production 21, Plaintiff answered that it would "make responsive documents available" after the Court entered a Protective Order. (Plaintiff's Response, 21, Ex. A). Again, Plaintiff failed to supplement its response to provide any responsive documents. Thus, Plaintiff is precluded, pursuant to Fed.Civ.R. 37(c), from introducing any evidence at trial concerning its production costs, manufacturing costs, material costs, and/or labor costs. In response to Midwest's Request for Production 31, Plaintiff summarily objected and did not provide any responsive documents. (Plaintiff's Response, 31, Ex. A). Furthermore, Plaintiff completely failed to provide any documents in response to this request. Plaintiff, thus, is likewise precluded from introducing any evidence at trial concerning its purchasing of keywords and its costs for its other internet-based advertising. III. CONCLUSION For the foregoing reasons, Midwest respectfully submits that the Court should enter an order precluding Plaintiff from presenting any evidence regarding Plaintiff's costs for producing and marketing its products. Respectfully Submitted, By: /s/ Jill A. Bautista Craig A. Marvinney, 0004951 (OH) John M. Skeriotis, 0069263 (OH) Jill A. Bautista, 0075560 (OH) BROUSE MCDOWELL 388 S. Main Street, Suite 500 Akron, Ohio 44311-4407 Telephone: 330-535-5711 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Facsimile: 330-253-8601 Email: cmarvinney@brouse.com, jskeriotis@brouse.com, jbautista@brouse.com Admitted pro hac vice Donald L. Myles, Jr., 007464 (AZ) JONES, SKELTON & HOCHULI, P.L.C. 2901 N. Central Ave., Suite 800 Phoenix, Arizona 85012 Telephone: 602-263-1700 Facsimile: 602-263-1784 Email: dmyles@jshfirm.com Attorneys for Defendant/Counterclaimant Midwest Industrial Supply, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 727258 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing MIDWEST INDUSTRIAL SUPPLY, INC.'S MOTION IN LIMINE TO BAR TESTIMONY AND EVIDENCE CONCERNIG SOILWORKS, LLC'S COSTS has been electronically filed on this 17th day of September, 2008. Notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. /s/ Jill A. Bautista Jill A. Bautista

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