Johnson & Johnston Associates, Inc. v. R.E. Service Co., Inc.

Filing 557

ORDER sustaining plaintiff's evidentiary objections. Signed by Judge Saundra Brown Armstrong on 3/16/06. (kk, COURT STAFF) (Filed on 3/16/2006)

Johnson & Johnston Associates, Inc. v. R.E. Service Co., Inc.

Doc. 557

Case 4:03-cv-02549-SBA

Document 557

Filed 03/16/2006

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Matthew H. Poppe (State Bar No. 177854) ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: [phone] Robert M. Isackson (admitted pro hac vice) W. Benjamin Tabler (admitted pro hac vice) ORRICK, HERRINGTON & SUTCLIFFE LLP 666 Fifth Avenue New York, NY 10103 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff NIKKO MATERIALS USA, INC. d/b/a GOULD ELECTRONICS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION NIKKO MATERIALS USA, INC., an Arizona corporation, d/b/a GOULD ELECTRONICS, INC., Plaintiff, v. R.E. SERVICE CO., INC., a California corporation, Defendant.
CASE NO. CV 03-02549 SBA (JL) [PROPOSED] ORDER SUSTAINING PLAINTIFF'S EVIDENTIARY OBJECTIONS TO THE DECLARATIONS OF GREGORY L. LUCAS, ROBERT MORGENSEN, AND MARK FRATER IN SUPPORT OF R.E. SERVICE CO. INC.'S OPPOSITION TO NIKKO'S MOTION TO CORRECT THE JUDGMENT PURSUANT TO FED. R. CIV. P. 60(A) OR IN THE ALTERNATIVE TO ALTER OR AMEND THE JUDGMENT PURSUANT TO FED R. CIV. P. 59(E) AND ARGUMENT THEREON Hearing Date: March 7, 2006 Hearing Time: 1:00 PM Courtroom: 3

The Honorable Saundra Brown Armstrong

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[PROPOSED] ORDER SUSTAINING PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DECLARATIONS OF GREGORY L. LUCAS, ROBERT MORGENSEN AND MARK FRATER

CASE NO. CV 03-02549 SBA

Dockets.Justia.com

Case 4:03-cv-02549-SBA

Document 557

Filed 03/16/2006

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This matter came before the Court on Plaintiff's EVIDENTIARY Objections To The D1 clarations Of Gregory L. Lucas, Robert Morgensen, And Mark Frater In Support Of R.E. e 2 Service Co. Inc.'s Opposition To Nikko's Motion To Correct The Judgment Pursuant To Fed. R. C3v. P. 60(a) Or In The Alternative To Alter Or Amend The Judgment Pursuant To Fed R. Civ. i 4 P. 59(e) And Argument Thereon. 5 The Court, having considered the pleadings and papers on file, HEREBY

O6 DERS that Nikko's objections are SUSTAINED as follows: R 7 8 1. The declarations of Gregory L. Lucas, Robert Morgensen, and Mark Frater, and

ar9 ument thereon, are inadmissible in their entirety as irrelevant and unduly prejudicial under g 10 Fed. R. Evid. 401 and 403. 11 RES' position in its Opposition fails to recognize that Nikko's motion merely seeks to

12 correct a technical error by the Court in rendering a Judgment (Docket 528, entered 1/17/06) to 1f re3lect that a permanent injunction was granted by the Court in its Order (Docket 532, enter 1/4 2/06). The declarations submitted by RES to support its argument that a permanent 1 i15unction is no longer necessary are wholly irrelevant to the issue raised in Nikko's motion. nj 16 Indeed, as recognized in the Court Order entered on January 12, 2006 (Docket 532), the Court 1r al7eady granted Nikko a permanent injunction. Thus, RES' declarations and the argument t18 reon are excluded as irrelevant under Fed R. Evid. R. 401. he 19 Moreover, even if deemed relevant by the Court, the declarations submitted by RES in

20 support of its Opposition are more prejudicial than probative as they contain only the self21 serving statements of interested parties without any substantive evidence to rely on. The 22 declarations of Gregory L. Lucas, Robert Morgensen, and Mark Frater include broad statements 23 about the state of the printed circuit board ("PCB") industry yet fail to disclose any substantive 242 2
[PROPOSED] ORDER SUSTAINING PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DECLARATIONS OF GREGORY L. LUCAS, ROBERT MORGENSEN AND MARK FRATER

CASE NO. CV 03-02549 SBA

Case 4:03-cv-02549-SBA

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documents to support their analyses. For this reason, the declarations submitted by RES are also 1 excluded under Fed. R. Evid. R. 403 as being unduly prejudicial and lacking in probative value. 2 2. The declarations of Gregory L. Lucas, Robert Morgensen, and Mark Frater, and

ar3 ument thereon, are inadmissible in their entirety under Fed. R. Evid. 602 because the g 4 declarations do not contain evidence sufficient to support a finding that the declarants have 5 personal knowledge of the matters stated in their declarations. 6 7 3. The declarations of Gregory L. Lucas and Robert Morgensen in their entirety, and

8 ¶¶ 2-8 of the declaration of Mark Frater, and argument thereon, are excluded as inadmissible 9 hearsay under Fed. R. Evid. R. 802. 10 Neither Gregory L. Lucas nor Robert Morgensen testified at trial, and Mark Frater never

t11tified at trial or at a hearing to the truth of the matter asserted in ¶¶ 2, 3, 4, 5, 6, 7, and 8 in his es 12 declaration. Thus, the declarations of Gregory L. Lucas and Robert Morgensen in their entirety, 13 and ¶¶ 2-8 of the declaration of Mark Frater, and argument thereon, are excluded as inadmissible 14 hearsay under Fed. R. Evid. R. 802. 15 16 4. The declarations of Gregory L. Lucas and Robert Morgensen, and any argument

t17 reon, are excluded in their entirety as containing improper expert opinions. he 18 Neither Gregory L. Lucas nor Robert Morgensen was disclosed under Fed. R. Civ. P. R.

19 26(a)(2), and they are lay witnesses pursuant to Fed. R. Evid. R. 701. Yet the substance of their 20 declarations relies on expert opinions regarding, among other things, the state of the PCB i21 ustry and how the industry as a whole will benefit by the continued manufacture and sale of nd 2E R2 S' SC3 product. These statements fall outside the scope of lay witness opinions under Fed. R. 2v E3id. R. 701. 242 3
[PROPOSED] ORDER SUSTAINING PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DECLARATIONS OF GREGORY L. LUCAS, ROBERT MORGENSEN AND MARK FRATER

CASE NO. CV 03-02549 SBA

Case 4:03-cv-02549-SBA

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Filed 03/16/2006

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Beyond this procedural objection, neither Gregory L. Lucas nor Robert Morgensen have 1 provided sufficient bases for their opinions. Fed. R. Evid. R. 702 requires that there be 2 "sufficient facts and data" to support an expert opinion. However, neither Gregory L. Lucas nor R3 bert Morgensen have provided any documentation or other evidence to support their sweeping o st4tements regarding the PCB industry or its need for continued production of SC3. a 5 For these reasons, the declarations of Gregory L. Lucas and Robert Morgensen, and any

ar6 ument thereon, are excluded in their entirety. g 7 8 IT IS SO ORDERED. 9 1a D0 ted: 3-16-06 11 12 13 14 15 16 17 18 19 20 21 22 23 242 4
[PROPOSED] ORDER SUSTAINING PLAINTIFF'S EVIDENTIARY OBJECTIONS TO DECLARATIONS OF GREGORY L. LUCAS, ROBERT MORGENSEN AND MARK FRATER

___________________________________________ The Honorable SAUNDRA BROWN ARMSTRONG United States District Judge

CASE NO. CV 03-02549 SBA