Superior Consulting Services, Inc. v. Shaklee Corporation

Filing 320

ORDER denying 257 Motion in Limine. Superior's Motion in Limine (Doc. 257) is DENIED. Signed by Judge Gregory A. Presnell on 5/25/2018. (MAF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SUPERIOR CONSULTING SERVICES,
INC.,
Plaintiff,
v.

Case No: 6:16-cv-2001-Orl-31GJK

SHAKLEE CORPORATION and
SHAKLEE U.S., LLC,
Defendants.

ORDER
This matter is before the Court on Superior’s Motion in Limine (Doc. 257) and Shaklee’s
Response in opposition (Doc. 274).
The term “in limine” has been defined as “on the threshold; at the very beginning;
preliminarily.” Luce v. U.S., 469 U.S. 38, 40 n.2 (1984) (citing Black's Law Dictionary 708 (5th
ed. 1979)). “A motion in limine seeks a protective order prohibiting the opposing party, counsel,
and witnesses from offering offending evidence at trial, or even mentioning it at trial, without first
having its admissibility determined outside the presence of the jury.” 75 Am. Jur. 2d Trial § 39
(2008). A motion in limine may be proper where the evidence at issue is highly prejudicial or
inflammatory; where the evidentiary issue is significant and unresolved under existing law; where
the issue involves a significant number of witnesses or volume of material, making it more
economical to have it resolved prior to trial; or where the movant does not wish to object in the
presence of the jury. Id. “Motions in limine are disfavored; admissibility questions should
ordinarily be ruled upon as they arise at trial.” Stewart v. Hooters of America, Inc., 2007 WL
1752843 at *1 (M.D. Fla. June 18, 2007). “Accordingly, if evidence is not clearly inadmissible,

evidentiary rulings must be deferred until trial to allow questions of foundation, relevancy, and
prejudice to be resolved in context.” Id. Denial of a motion in limine does not insure that the
evidence contemplated by the motion will be admitted at trial. Instead, denial of the motion means
the court cannot determine whether the evidence in question should be excluded outside the trial
context. U.S. v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989). A district judge is free, in the
exercise of sound judicial discretion, to alter a previous in limine ruling, even if nothing
unexpected happens at trial. Luce, 469 U.S. at 41.
In its Motion, Superior seeks to exclude, in limine, five items of evidence. These are
addressed below.
1.

Evidence of Superior’s financial condition from 2012-2016.

DENIED. Although

Superior is not seeking lost profits, its sales volume is relevant to its trademark
infringement and dilution claims. Superior’s profitability may also be appropriate
impeachment of its motive for filing this action.
2. Evidence concerning Cullen’s related companies. DENIED. Cullen (the owner of
Superior) is also a shareholder in Abbi, Inc. f/k/a Cullen & Associates. Superior does
not sell supplements but Abbi does. Superior claims that her interest in Abbi is
irrelevant to any of the issues in this case, but Cullen was a Shaklee distributor under
the auspices of Abbi, and Cullen’s relationship to Shaklee as a distributor is relevant to
the issues in this case. Moreover, there is evidence that Superior uses Abbi to sell
supplements to Superior’s customers, which is relevant to Shaklee’s counterclaim.
3. Srinivasan and Mosler’s testimony. DENIED. See the Court’s Order at Doc. 314.
Moreover, these are both hybrid and fact witnesses who have been deposed by
Superior. Their testimony cannot be excluded or limited in limine.

-2-

4. Shaklee’s Trial Exhibits 24 and 42. DENIED. These exhibits pertain to third party
usage of the “Healthprint” mark, which is relevant to the strength of Plaintiff’s mark.
Exhibit 24 was disclosed in Shaklee’s response to Superior’s Motion for Preliminary
Injunction (Doc. 43). Several documents within Exhibit 42 were also previously
disclosed and some are included in Superior’s trial exhibits.

Since Shaklee is

withdrawing any portions of Exhibit 42 that were not previously disclosed, Superior’s
Motion is without merit.
5. Comments during opening statements regarding Shaklee’s gross sales. DENIED.
Superior contends that Shaklee’s gross sales, a fact that Plaintiff must prove in support
of its damages claim, is inappropriate argument. Shaklee characterizes that position as
“bizarre.” The Court agrees.
DONE and ORDERED in Chambers, Orlando, Florida on May 25, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Party

-3-