Limo Hosting, Inc et al v. Fiks

Filing 112

FINAL PRETRIAL ORDER. Signed by Magistrate Judge Bernard Zimmerman on 9/9/2009. (bzsec, COURT STAFF) (Filed on 9/10/2009)

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

LIMO HOSTING, et al., Plaintiffs, v. MIKHAIL FIKS, et al., Defendants.

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No. C 08-2474 BZ FINAL PRETRIAL ORDER

The pretrial conference in this case were held on September 8, 2009. Limo Hosting, Inc. ("Limo Hosting") and

Oleg Gridnev ("Gridnev") (collectively "plaintiffs") were represented at the conference by Timothy James Walton, Esq. Mikhail Fiks ("defendant") was represented by Karl Stephen Kronenberger, Esq. and Jeffrey Michael Rosenfeld, Esq. This Order shall control the subsequent conduct of the case and be modified only to prevent manifest injustice. Fed. R. Civ. P. 16(e). 1. LENGTH AND TIME OF TRIAL See

Trial shall begin on Tuesday, September 29, 2009, at 8:30 a.m. in Courtroom G, 15th Floor, Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102. 1 The trial

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schedule is as follows:

8:30 a.m. - 1:30 p.m.

Plaintiffs shall be prepared to call witnesses Tuesday, September 29, 2009. Each side shall schedule witnesses to

avoid any interruption in the presentation of testimony. During the trial, witnesses, other than counsel and their clients, shall remain sequestered outside the courtroom until they are called to testify. 2. CLAIMS TO BE TRIED

The following claims will be tried to a jury: (1) statutory trademark infringement; (2) common law trademark infringement; (3) false description and false designation of origin; (4) copyright infringement; (5) trade libel; (6) interference with contract; (7) and interference with prospective business relations. The following counterclaims

will be tried to a jury: (1) intentionally interfering or attempting to interfere with defendant's civil rights by threatening or committing violent acts; (2) cybersquatting; and (3) defamation. the Court. To the extent that the parties have referred to other claims and affirmative defenses in their pleadings or pretrial statements but failed to propose jury instructions on such claims and defenses, the Court deems that the parties have waived any such claim. As stated at the pretrial conference, the Court urges both parties to scrutinize their respective claims to avoid unnecessary repetition or cumulation. /// 2 The equitable claims will be decided by

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3.

MOTIONS a. Defendant's unopposed request for leave to call Mr. Sharp via videoconferencing (Doc. No. 92) is GRANTED. Defendant shall arrange for the

videoconferencing. b. Defendant's motion for sanctions is GRANTED. Defendant is awarded $1,882.92 in attorneys' fees from plaintiffs' counsel for fees incurred as a result of counsel's failure to comply with the Court's pretrial procedures. This award is

based on the billing records submitted by defense counsel, and reflects only those fees the Court concludes were unnecessarily incurred as a result of plaintiffs' counsel's derelictions. 4. EXHIBITS AND EVIDENCE For the reasons articulated on the record at the pretrial conference, the Court rules on the objections to exhibits as follows: a. Defendant's objection to Plaintiffs' Exhibits 1 and 2 is GRANTED. Defendant's deposition

testimony may only be used at trial for impeachment purposes. b. Defendant's objection to Plaintiffs' Exhibit 7 is DENIED subject to renewal at trial if the exhibit is not authenticated. c. Defendant's objection to Plaintiffs' Exhibits 8 and 9 is GRANTED. 3 Plaintiffs' Exhibits 8 and 9

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 d.

shall be excluded from use at trial. Defendant's objection to Plaintiffs' Exhibits 17 and 18 is DENIED subject to renewal at trial if the exhibits are not authenticated. Exhibits shall not be a part of the record or go to the jury unless sponsored by a witness or otherwise brought to the jury's attention. The parties must lodge the entire transcript of all depositions they anticipate using at trial by the start of trial. 5. JURY INSTRUCTIONS

Rulings on the instructions were made on the record at the pretrial conference on September 8, 2009. Instructions

submitted by both parties, listed on attachment A, are deemed joint instructions. The Court will shortly lodge a proposed

set of final instructions, to which the parties may object. As discussed on the record at the pretrial conference, the parties shall submit their joint revisions of the trade libel instructions, CACI Instruction 3940, as well as any instruction on the affirmative defense of "unclean hands" by Wednesday, September 16, 2009. 6. MISCELLANEOUS

The parties have until Wednesday, September 16, 2009 to lodge any objections to the Court's voir dire questions which were distributed. Any party who desires a transcript of the trial must make arrangements with the court reporter. Any party who needs an

interpreter or audio or visual equipment shall make its own 4

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arrangements for same and clear all such equipment with court security personnel. The parties are instructed to notify the Court immediately if this action should settle before the commencement of trial. Dated: September 9, 2009

Bernard Zimmerman United States Magistrate Judge
G:\BZALL\-BZCASES\LIMO HOSTING V. FIKS\PRETRIAL\PRETRIAL ORDER.V1.BZ.wpd

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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 INSTRUCTION NO. MMIJI No. 1.5 MMIJI No. 2.10 MMIJI No. 15.0 MMIJI No. 15.5 MMIJI No. 15.8 MMIJI No. 15.9 MMIJI No. 15.10 MMIJI No. 15.12 MMIJI No. 15.16 MMIJI No. 15.24 Joint Joint Joint Joint Joint Joint Joint Joint Joint Joint (Section on actual notice added by plaintiffs) Joint Joint Joint JOINT Attachment A: Joint Exhibits

MMIJI No. 15.25 No.__("Common Law Trademark Infringement") No.__("False Description & False Designation of Origin) MMIJI No. 17.0 MMIJI No. 17.4 MMIJI No. 17.5 MMIJI No. 17.12 MMIJI No. 17.22 MMIJI No. 17.23 No.__("Trade Libel") No.__("Trade Libel Damages") CACI 1707 CACI 2201 6

Joint Joint Joint Joint Joint Joint Joint Joint Joint Joint

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CACI 2202 CACI 3900 CACI 3903N CACI 3025 CACI 3027 CACI 3940 No.__("Cybersquatting Introduction") No.__("Cybersquatting Liability") No.__("Cybersquatting Statutory Damages") CACI 1702

Joint Joint Joint Joint Joint Joint Joint Joint Joint Joint

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