Commodores Entertainment Corporation v. McClary et al
Filing
321
ORDER granting in part 254 Motion to Strike ; granting in part and denying in part 289 Motion in Limine; granting in part and denying in part 290 Motion in Limine; granting 318 Motion for Extension of Time to File. Certain enumerated documents are stricken. Signed by Judge Roy B. Dalton, Jr. on 3/24/2016. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
COMMODORES ENTERTAINMENT
CORPORATION,
Plaintiff/Counter
Defendant,
v.
Case No. 6:14-cv-1335-Orl-37GJK
THOMAS McCLARY; and FIFTH
AVENUE ENTERTAINMENT, LLC,
Defendants/
Counter Claimants.
THOMAS McCLARY; and FIFTH
AVENUE ENTERTAINMENT, LLC,
Third-Party
Plaintiffs,
v.
DAVID FISH; WILLIAM KING; and
WALTER ORANGE,
Third-Party
Defendants.
ORDER
This cause is before the Court on the following matters:
(1)
Plaintiff’s Motion to Strike Expert Witness, Richard Wolfe, and Supporting
Memorandum of Law (Doc. 254), filed October 30, 2015;
(2)
Defendants’ Response (Doc. 265), filed November 5, 2015;
(3)
Plaintiff and Third Party Defendants’ Motion in Limine (Doc. 289), filed
January 28, 2016;
(4)
Defendants’ Response (Doc. 300), filed February 11, 2016;
(5)
Defendants’ Motions in Limine (Doc. 290), filed January 28, 2016;
(6)
Plaintiff and Third Party Defendants’ Response in Opposition to
Defendants’ Motion in Limine (Doc. 296), filed February 11, 2016; and
(7)
[The Parties’] Joint Motion to Extend Time to File Exhibits to Joint Pretrial
Statement (Doc. 318), filed March 18, 2016.
OVERVIEW
Plaintiff Commodores Entertainment Corporation (“CsEC”) initiated this trademark
infringement action on August 19, 2014. (Doc. 1.) Plagued by counsels’ painfully obvious
failure to familiarize themselves with the rules of practice and procedures in this Court,
contentious proceedings ensued, and on February 18, 2016, the Court conducted a Final
Pretrial Conference (“FPTC”). (Doc. 311.) At the FPTC, the parties’ inadequate
preparation and unfamiliarity with the Court’s trial preparation requirements was again
demonstrated; thus, the Court reset the matter for trial during the July trial term, and the
Court struck most of the parties’ improper pre-trial filings. (See id.) Pursuant to Federal
Rule of Civil Procedure 42(b), the Court also ordered that the trial would be conducted in
two phases—the first phase concerned primarily with ownership of the marks
(“Phase One”), and the second phase concerned with liability and damages
(“Rule 42 Order”). (See id.) Finally, the Court ruled on pending motions from the bench.
This Order memorializes the Court’s rulings at the FPTC and addresses the parties’
recent filing.
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STRICKEN FILINGS
Consistent with the Court’s rulings at the FPTC, the following filings are stricken
because they were submitted late, unilaterally, or otherwise in violation of the Court’s
Local Rules and the requirements of the Court’s Case Management and Scheduling
Order (“CMSO”) (Doc. 107):
•
Joint Pre-Trial Statement (Doc. 297), filed February 11, 2016;
•
Plaintiff, Commodores Entertainment Corporation’s Exhibit List
(Doc. 297-1), filed February 11, 2016;
•
Defendants’ Exhibit List (Doc. 297-2), filed February 11, 2016;
•
Plaintiff and Third Party Defendants’ Objections and CrossDesignations to Defendants’ Deposition Designations (Doc. 305),
filed February 17, 2016;
•
Plaintiff and Third Party Defendants’ Objections to Defendants’
Proposed Exhibits (Doc. 306), filed February 17, 2016;
•
Plaintiff’s Proposed
February 17, 2016;
•
Plaintiff’s Amended Proposed Voir Dire Questions (Doc. 308), filed
February 17, 2016;
•
Notice of Filing Revised Purported Joint/Agreed Jury Instructions
and Objections (Doc. 309), filed February 17, 2016; and
•
Court’s Instructions to the Jury (Doc. 309-1), filed February 17, 2016.
Voir
Dire
Questions
(Doc.
307),
filed
EXPERT WITNESS TESTIMONY
Arguing that the expert report disclosed by Defendants for their proposed expert
witness Richard Wolfe, Esq. (“Wolfe”) is “rife with case citations and conclusory
statements,” Plaintiff moved to strike (“Wolfe Motion”). (Doc. 254). Defendants
responded, and the parties addressed the Wolfe Motion at the FPTC. The law is well-
3
settled that the “court must be the jury’s only source of law”; thus, expert witnesses “may
not testify to the legal implications of conduct” or to matters concerning a pure question
of law. See Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)
(holding that district court abused its discretion by allowing an expert witness to testify
about the scope of a party’s legal duty); see also Myers v. Bowman, 713 F.3d 1319, 1328
(11th Cir. 2013) (holding that district court correctly disregarded opinion testimony
concerning a “pure question of law”). Such opinions concerning legal matters simply are
not helpful to a jury—which is a requirement of admissibility under Federal Rule of
Evidence 702(a). Accordingly—as ordered at the FPTC—the Wolfe Motion is due to be
granted to the extent that Plaintiff seeks to preclude Defendants from eliciting testimony
at Wolfe at trial concerning any legal conclusions or opinions concerning the law.
MOTIONS IN LIMINE
Before the FPTC, the parties submitted briefing on their respective motions in
limine (“MIL”). (See Docs. 289, 300 (Plaintiff’s MIL); Docs. 290, 296 (Defendants’ MIL).)
Due to the Rule 42 Order, a number of matters raised in the MILs were granted as to
Phase One only or were denied on ripeness grounds or with leave to reassert.
Specifically, as to Phase One only, the Court granted: (1) the parties’ respective requests
to exclude evidence concerning the injunction entered in this action and the injunction
bond; (2) Defendants’ request to exclude evidence concerning Magaly Whitehead; and
(3) Plaintiff’s request to exclude evidence concerning any failure to actually play
instruments—specifically the guitar—at live performances. The Court denied with leave
to reassert Plaintiff’s requests to exclude evidence concerning: (1) a difference between
“hard” and “soft” bookings; and (2) a settlement agreement with Milan Williams. The Court
4
also denied as moot the Defendants’ request to preclude Plaintiff from eliciting direct
testimony from any expert witness that Plaintiff identified as a rebuttal witness during
discovery. 1 Finally, the Court reminded the parties that evidence that was not produced
or disclosed during discovery will not be admitted into evidence at trial. Accordingly, the
Court granted Defendants’ request to exclude such evidence.
CONCLUSION
As set forth above, and in accordance with the Court’s rulings from the bench at
the Final Pretrial Conference, it is hereby ORDERED AND ADJUDGED that:
1.
Plaintiff’s Motion to Strike Expert Witness, Richard Wolfe, and Supporting
Memorandum of Law (Doc. 254) is GRANTED IN PART as set forth in this
Order.
2.
Plaintiff and Third Party Defendants’ Motion in Limine (Doc. 289) is
GRANTED IN PART AND DENIED IN PART as set forth in this Order.
3.
Defendants’ Motions in Limine (Doc. 290) is GRANTED IN PART AND
DENIED IN PART as set forth in this Order.
4.
[The Parties’] Joint Motion to Extend Time to File Exhibits to Joint Pretrial
Statement (Doc. 318) is GRANTED.
5.
The Clerk of the Court is DIRECTED to strike from the record and return to
the filing party each of the following documents:
a.
Joint Pre-Trial Statement (Doc. 297);
b.
Plaintiff, Commodores Entertainment Corporation’s Exhibit
List (Doc. 297-1);
1
Plaintiff would be precluded from doing so under the Court’s CMSO and the Rules
of Civil Procedure, and Plaintiff indicated that it did not intend to call such witnesses on
direct examination.
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c.
Defendants’ Exhibit List (Doc. 297-2);
d.
Plaintiff and Third Party Defendants’ Objections and CrossDesignations to Defendants’ Deposition Designations
(Doc. 305);
e.
Plaintiff and Third Party Defendants’
Defendants’ Proposed Exhibits (Doc. 306);
f.
Plaintiff’s Proposed Voir Dire Questions (Doc. 307);
g.
Plaintiff’s Amended Proposed Voir Dire Questions (Doc. 308);
h.
Notice of Filing Revised Purported Joint/Agreed Jury
Instructions and Objections (Doc. 309); and
i.
Court’s Instructions to the Jury (Doc. 309-1).
Objections
to
DONE AND ORDERED in Chambers in Orlando, Florida, on March 24, 2016.
Copies:
Counsel of Record
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