Sorrell Holdings LLC v. Infinity Headwear & Apparel, LLC

Filing 193

ORDER granting 154 Motion in Limine; granting 155 Motion in Limine; granting 179 Motion in Limine; granting in part and denying in part 180 Motion in Limine. Signed by Honorable Barry A Bryant on April 26, 2022.(mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
SORRELL HOLDINGS, LLC
vs.

PLAINTIFF
Civil No. 4:16-cv-04019

INFINITY HEADWEAR &
APPAREL, LLC

DEFENDANT
ORDER

On April 25, 2022, the Court held the Initial Pretrial Conference and hearing on the parties
Motions in Limine which included ECF Nos. 154, 155, 179, and 180. The parties have consented
to the jurisdiction of a United States Magistrate Judge to conduct any and all proceedings in this
case, including conducting the trial, ordering the entry of a final judgment, and conducting all postjudgment proceedings. ECF No. 33. The Court having reviewed the four Motions in Limine filed
by the parties, finds as follows:
1. Defendant’s Motion in Limine ECF No. 154
With this Motion, Defendant seeks to exclude from evidence any reference to Plaintiff’s
purchase of Infinity’s Mascot Bath Loofahs since this case has begun. According to Plaintiff,
(ECF No. 169) they do not intend to introduce evidence at trial regarding Plaintiff’s purchase of
the accused products. Defendant’s Motion in Limine (ECF No. 154) is GRANTED.
2. Defendant’s Motion in Limine ECF No. 155
With this Motion, Defendant seeks to exclude from evidence certain invoice and sales
documents related to Kelly Kinetics, Inc. Defendant argues the documents are inadmissible
hearsay as they are out of court statements made by Kelly Kinetics and do not fall within an
exclusion or exception to the rule against hearsay.

1

The documents are: (a) a “Kelly Kinetics Sales by Item Detail” spreadsheet for “January
through December 2005,” (b) a January 31, 2006 email from Kelly Kinetics to Mr. Sorrell, that
says it contains a sales report for October 1, 2005, through December 31, 2005, and (c) a November
7, 2005 Kelly Kinetics Invoice to Fred Meyer. ECF No. 156.
The Court finds these documents are clearly hearsay and at this time, do not fall within an
exception to the rule. Defendant’s Motion in Limine (ECF No. 155) is GRANTED.
3. Plaintiff’s Motion in Limine ECF No. 179
With this Motion, Plaintiff seeks to exclude any evidence of Roger Sorrell’s prior criminal
history or alleged acts. Defendant has no objection to this Motion. Plaintiff’s Motion in Limine
(ECF No. 179) is GRANTED.
4. Plaintiff’s Motion in Limine ECF No. 180
With this Motion, Plaintiff seeks to (A) exclude from evidence any expert testimony of
Doug Keller and Dereck Travis, (B) exclude evidence that the claimed invention was not disclosed
in the written description of the Patent, and (C) exclude any evidence not disclosed. Plaintiff’s
Motion in Limine (ECF No. 180) is GRANTED in part and DENIED in part as follows.
With regards to Plaintiff seeking to exclude any expert testimony of Doug Keller and
Dereck Travis; neither Mr. Keller nor Mr. Travis have been designated as expert witnesses,
therefore the Motion is GRANTED to the extent either witness would provide expert testimony.
Plaintiff’s second point is seeking to exclude evidence that the claimed invention was not
disclosed in the written description of the Patent. Rule 3-3 of the Patent Rules, adopted by the
Court, states the Invalidity Contentions must contain “[a]ny grounds of invalidity based on
indefiniteness under 35 U.S.C. §1112(2) or enablement or written description under 35 U.S.
§112(1) of any of the asserted claims.”

2

The Invalidity Contentions served by Infinity did not raise the issue of invalidity for failure
to comply with the written description requirement. Therefore, the Court will GRANT this
Motion as it relates to any evidence on the issue of invalidity for failure to comply with the written
description requirement.
Finally, Plaintiff seeks to exclude testimony from Mr. Keller and Mr. Travis to the extent
such facts were not disclosed in response to Plaintiff’s written discovery. However, Plaintiff never
sought to depose either witness, doesn’t specify any evidence in support, and never filed a Motion
to Compel on this issue.
The Court will DENY the Motion as it relates to seeking to exclude testimony of Mr. Keller
and Mr. Travis.
5. Conclusion
In making these rulings, the Court is not making any findings as it relates to the
admissibility of evidence of the matters addressed by these Motions. The Court instructs counsel,
and all witnesses not to mention, refer to, or attempt to convey to the jury in any manner, any of
the GRANTED topics listed above without first obtaining the Court’s permission outside the
presence of the jury. Further, any matter DENIED by this Order is without prejudice to the parties
right to renew the same objections at the appropriate time during trial.
DATED this 26th day of April 2022.

Barry A. Bryant

/s/
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

3