ADT LLC et al v. Alarm Protection LLC et al

Filing 369

ORDER granting in part and denying in part Defendants' Motion to Exclude Non-Party Customer Declarations, Affidavits, and Unsworn Letters 216 . Signed by Judge Robin L. Rosenberg on 5/11/2017. (bkd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 9:15-CV-80073-ROSENBERG/HOPKINS
ADT LLC & ADT US HOLDINGS, INC.,
Plaintiffs,
v.
ALARM PROTECTION LLC, et al.,
Defendants.
____________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE NON-PARTY
CUSTOMER DECLARATIONS, AFFIDAVITS, AND UNSWORN LETTERS
This matter is before the Court on Defendants’ Motion in Limine to Exclude NonParty Customer Declarations, Affidavits, and Unsworn Letters at docket entry 216. The Court
heard oral argument on the Motion on May 8, 2017 and reviewed supporting affidavits. For
the reasons set forth below, the Motion is granted in part and denied in part.
Defendants seek to exclude declarations, affidavits, and unsworn letters from
customers of Plaintiffs. With respect to declarations, letters, or other documents that are
unsworn, Defendants’ Motion is granted for the same reasons the Court excluded recorded
telephone conversations of customer complaints at docket entry 340. With respect to sworn
declarations and sworn affidavits, the Court addresses this evidence below.
Plaintiffs argue this evidence should be admitted under the residual hearsay
exception—Federal Rule of Evidence 807. Rule 807 permits hearsay when (1) the statement
has circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material
fact; (3) it is more probative on the point for which it is offered than any other evidence that

the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the
purposes of the rules and the interests of justice. The Eleventh Circuit has emphasized that
the “rule asks not simply for circumstantial guarantees of trustworthiness, but for guarantees
that are equivalent in significance to the specific hearsay exceptions enumerated in the
Federal Rules of Evidence 803 and 804. Therefore, such guarantees must be ‘equivalent to
cross-examined former testimony, statements under a belief of impending death, statements
against interest, and statements of personal or family history.’” Rivers v. United States, 777
F.3d 1306, 1314 (11th Cir. 2015) (citation omitted) (emphasis in original). The residual
hearsay exception is rarely invoked, and only in exceptional circumstances. United States v.
Mitchell, 145 F.3d 572 (3d Cir. 1998). The proponent of a statement, citing the residual
exception, bears a heavy burden. United States v. Washington, 106 F.3d 983 (D.C. Cir.
1997).
In arguing that the sworn declarations of its customers should be admitted, Plaintiffs
rely upon cases such as FTC v. United States Mortgage Funding, Inc., No. 11-CV-80155,
2011 WL 2784466 (S.D. Fla. July 12, 2011).1 In United States Mortgage Funding, the
district court permitted the Federal Trade Commission to introduce into evidence sworn
declarations from consumers, however, the declarations were admitted into evidence to prove
the consumers had sustained an actual injury. Id. at *2. Other courts have permitted sworn
declarations from the Federal Trade Commission for similar purposes. FTC v. Figgie Int’l,
Inc., 994 F.2d 595 (9th Cir. 1993) (admitting letters under the residual exception to prove
prices paid by consumers); FTC v. Amy Travel Service, Inc., 875 F.2d 564 (2d Cir. 1989)

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Plaintiffs also rely upon Bourjaily v. United States, 483 U.S. 171 179-80 (1987) for the more general
proposition that many “individual pieces of evidence, insufficient of themselves to prove a point, may in
cumulation prove it.”

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(admitting affidavits under the residual exception to show actual consumer harm). When the
Federal Trade Commission has attempted to introduce declarations to show more than just
consumer harm, however, courts have sometimes reached a different conclusion. In FTC v.
Washington Data Resources, No. 8:09-CV-2309, 2011 WL 2669661, at *5 (M.D. Fla. July 7,
2011), the Federal Trade Commission sought to introduce declarations for “more than merely
the extent of the consumer injury,” and, instead, the declarations were offered “as substantive
evidence of the defendants’ alleged deceptive statements.” The trial court declined to admit
the declarations under the residual exception, noting that the fact that the Federal Trade
Commission had deposed consumers belied its argument that it could not otherwise procure
evidence of deceptive practices through reasonable effort. Id.
Upon review of the sworn declarations in the record, the Court has several concerns.
First, the declarations are not being offered to merely show the existence of damages, as was
the case in United States Mortgage Funding (wherein declarations were admitted). Instead,
the declarations are being offered to show deceptive and misleading conduct by the
Defendants, as was the case in Washington Data Resources (wherein declarations were
excluded). Second, the Plaintiffs are not the Federal Trade Commission nor are the Plaintiffs
a governmental entity. Plaintiffs are private, for-profit corporations that stand to receive
monetary compensation from this litigation. Plaintiffs—direct competitors of Defendants—
prepared the declarations2 they now seek to admit into evidence—declarations that
Defendants did not have the opportunity to challenge. Third, Defendants have persuasively
argued that a close review of the declarations has revealed inaccuracies—inaccuracies that are
detrimental to Defendants’ defense. For example, one declarant states that “[T]here was a

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The Court has reviewed the Marcia Gold affidavit at docket entry 368 pertaining to the process by which a
declaration is created.

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knock on my door. The gentlemen at my door identified himself as Ryan Lyman” but, when
deposed, the declarant attested: “I pulled into my driveway and there was a young man
walking down the street and he called to me and came up, introduced himself as an employee
of Alarm Protection . . . .”3 Compare DE 216-3 with DE 216-4. Another declaration is silent
on the issue of Defendants’ agent’s initial identification, but when deposed the declarant
attested: “[the agent] told his name and everything. He had his logo on, which was Alder.”
Compare DE 216-2 with DE 216-5. Fourth, some of the declarations constitute double and
possibly even triple hearsay. For example, in one declaration a customer mentions statements
made by her husband which in turn arguably relay statements made by an agent of
Defendants. DE 216-1. Fifth and finally, the Defendants have identified declarations with a
substantial time differential between the time of the customer’s interactions with Defendants’
agents and the time of the declaration. See DE 216-2 (three month differential); DE 216-3
(slightly less than two month differential).
The Court finds that none of the individual issues outlined above are dispositive to the
Court’s decision. However, upon review of the totality of Defendants’ arguments, the Court
is not persuaded that Plaintiffs have met their heavy burden to show that the declarations in
this case rise to the same level of trustworthiness as “cross-examined former testimony,
statements under a belief of impending death, statements against interest, and statements of
personal or family history.”

Rivers, 777 F.3d at 1314.

The Court therefore grants

Defendants’ Motion—with one exception. The Court is not persuaded, at this time, that the
customer declarations must be excluded from the jury’s consideration entirely. The Court

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The agents’ introduction (wherein he expressly stated he did not work for Plaintiffs) is critical to Defendants’
defense, however, this specific detail is not present in the customer’s declaration—a declaration that was
prepared by employees of Plaintiffs.

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will permit ore tenus argument as to whether the jury may be informed of the declarations in
some way other than the admission of the declarations into evidence.
For all of the foregoing reasons, Defendants’ Motion in Limine to Exclude Non-Party
Customer Declarations, Affidavits, and Unsworn Letters [216] is GRANTED IN PART
AND DENIED IN PART as more fully specified in this Order.
DONE and ORDERED in Chambers, Fort Pierce, Florida, this 11th day of May,
2017.

__________________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
cc: counsel of record

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