Idaho Golf Partners, Inc. v. Penninsula Beverage Co. et al

Filing 97

MEMORANDUM DECISION AND ORDER granting in part and denying in part 62 Motion in Limine. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IDAHO GOLF PARTNERS, INC.,
Plaintiff,

Case No. 1:14-cv-00233-BLW
MEMORANDUM DECISION AND
ORDER

v.
TIMBERSTONE MANAGEMENT, LLC.,
Defendant.

TIMBERSTONE MANAGEMENT, LLC.,
Counterclaimant,
v.
IDAHO GOLF PARTNERS, INC.,
Counterdefendant.

INTRODUCTION
Pending before the Court is Plaintiff-Counterdefendant Idaho Golf Partners, Inc.’s
motion in limine (Dkt. 62) in which Plaintiff seeks to preclude Defendant from
introducing evidence or testimony at trial referencing: (1) telephone calls from
anonymous persons to TimberStone Golf Course, as inadmissible hearsay, and (2)
settlement offers or statements made during settlement discussions or mediation
proceedings, pursuant to Federal Rule of Civil Procedure 68 and Federal Rule of
MEMORANDUM DECISION AND ORDER - 1

Evidence 408. The Court takes up only issue (1), the hearsay argument, and will issue a
later decision addressing the issue of settlement offers.
ANALYSIS
Plaintiff seeks to preclude Defendant from introducing “evidence referring to
telephone calls from ‘anonymous’ callers [to TimberStone Golf Course] to show
consumer confusion.” Pl.’s Mot. in Limine at 2–3, Dkt. 62. Plaintiff argues that such
evidence of confused golfers, offered through the testimony of TimberStone employees,
is inadmissible hearsay and inherently unreliable, given Plaintiff’s inability to crossexamine the callers. Id. Defendant counters that such testimony is not hearsay, as it is not
offered for the truth of the matter asserted, or if it is, falls within the state of mind
exception of Federal Rule of Evidence 803(3). Def.’s Opp’n at 2–5, Dkt. 83.
There appear to be two discrete categories of employee testimony concerning
phone calls and visits from confused golfers: (1) direct testimony from TimberStone
employees who interacted with confused customers; and (2) testimony of Ms. Webster,
co-owner of TimberStone Golf Course, who obtained reports from TimberStone
employees about confused golfers.
1. Testimony of TimberStone Employees
Plaintiff argues that testimony of TimberStone employees regarding statements by
allegedly confused golfers is inadmissible hearsay. These statements fall generally into
two categories—those demonstrating confusion and those asserting it.
Employee testimony about customer interactions merely demonstrating confusion

MEMORANDUM DECISION AND ORDER - 2

(e.g., testimony about misdirected calls) is not hearsay because it is not offered for the
truth of the matter asserted, but rather to show the declarant’s confusion. See Fed. R.
Evid. 801(c)(2); see, e.g., Conversive, Inc. v. Conversagent, Inc., 433 F. Supp. 2d 1079,
1091 (C.D. Cal. 2006); accord CFE Racing Prods., Inc. v. BMF Wheels, Inc., 793 F.3d
571, 579-81, 589 (6th Cir. 2015) (testimony regarding consumer confusion not offered
for the truth of the matter asserted, but rather was probative of customer’s confusion);
Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 719 (3d Cir. 2004) (same); Lyons
Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir. 2001); Fun–
Damental Too, Ltd. v. Gemmy Industries Corp., 111 F.3d 993, 1003–04 (2d Cir. 1997)
(same); Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d 1155, 1160 n. 10 (5th
Cir. 1982) (same).
Employee testimony about statements by golfers asserting confusion (e.g., golfer’s
statement such as “I was confused”), though offered for the truth of the matter asserted,
may nonetheless be admissible under the hearsay exception for then-existing state-ofmind.1 See Fed. R. Evid. 803(3); Lahoti v. Vericheck, Inc., 636 F.3d 501, 509 (9th Cir.
2011) (admitting, under the state-of-mind exception, testimony from company
representatives about calls from its customers complaining that they were confused); 4 J.

1

Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay rule for:
[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarant’s will.

Fed. R. Evid. 803(3).

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Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:15 (4th ed.
Supp. 2016) (noting that the “majority of courts” agree).
The “state-of-mind” exception may not always apply, however. For example, the
Court is not persuaded that a golfer’s follow-up conversation with TimberStone—
reporting prior confusion of the golf courses—would be admissible as a statement of the
declarant’s then-existing state of mind, if sufficient time had passed from the moment of
alleged confusion. See, e.g., JL Beverage Co., LLC v. Jim Beam Brands Co., No. 1317382, 2016 WL 3770484, at *9 (9th Cir. July 14, 2016) (distinguishing Lahoti on the
grounds that the conversations at issue did not occur with customers that were “currently
confused and seeking information about JL Beverage; rather, the individuals were
reporting, after the fact, that they had mistaken two products”). This is consistent with the
principle that a statement offered under Rule 803(3) “must be contemporaneous with the
mental state sought to be proven.” Weinstein’s Federal Evidence § 803.05 (2015); see
also United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980), overruled on other
grounds by United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc)
(“The more time that elapses between the declaration and the period about which the
declarant is commenting, the less reliable is his statement, because the greater chance
there is that his memory is erroneous . . . [and the] greater the circumstances for
misrepresentation . . . .”).
The court therefore denies Plaintiff’s motion to the extent that it seeks a general
prohibition on TimberStone employee testimony regarding confused customers. The

MEMORANDUM DECISION AND ORDER - 4

Court concludes that statements demonstrating confusion are not hearsay because they
are not offered for their truth. The Court will determine the admissibility of any
statements asserting confusion on a case-by-case basis during trial. Defendant is free, of
course, to raise an appropriate objection once the nature of the proffered evidence is clear
and the court has an evidentiary context in which to determine whether the evidence falls
within Rule 803(3) or another applicable exception to the hearsay rule.
2. Testimony of Ms. Webster
Defendant argues, and the Court agrees, that the testimony of Ms. Webster
regarding customer interactions contains an additional level of hearsay. Pl.’s Mot. in
Limine at 3, Dkt. 62. The first level consists of the golfer’s statements to a TimberStone
employee. Such statements must be analyzed under the framework above and may be
admissible if not offered for their truth or if it demonstrates the declarant’s then-existing
state of mind.
The second level consists of employee statements to Ms. Webster regarding
instances of alleged golfer confusion. As Plaintiff notes, Webster received reports of
golfer confusion from TimberStone employees but did not participate in these customer
interactions.2 Webster Decl. ¶ 25, Dkt. 41-1. Thus, Webster’s testimony about specific

2

For example, in the Declaration of Janice “Sally” Webster in Opposition to Plaintiff/Counterdefendant’s
Motion for Partial Summary Judgment ¶ 25, Ms. Webster states that she “. . . caused TimberStone Golf
Course staff to begin tracking instances of golfer confusion. On or around Saturday, May 23, 2015 a
golfer called and made a reservation for four golfers to play a round on Monday, May 25, 2015. After the
call had completed the golfer called back and cancelled the reservation, explaining that she had intended
to book a round at the Idaho Golf Course and that she had become confused when she searched for
‘TimberStone’ on the internet.” Webster Decl. ¶ 25, Dkt. 41-1.

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incidents of consumer confusion would be inadmissible hearsay unless an exception
applies.
Defendant, without pointing to any basis in the Federal Rules of Evidence, argues
that Webster’s testimony is admissible due to her managerial position within the
company: “As the co-owner of TimberStone Golf Course, Ms. Webster is competent to
testify about reports she received from TimberStone employees during the course of their
employment about confused golfers.” Def.’s Opp’n at 5, Dkt. 83. Defendant relies
exclusively on Kos Pharmacy, Inc. v. Andrx Corp., 369 F.3d 700 (3d. Cir. 2004) for this
assertion. Id. In that case, the court upheld a preliminary injunction in a trademark
dispute, in part based on a declaration by Berg, a company vice-president, that “over 60
instances of actual confusion between the two drugs have been reported to [him] by [his]
staff.” Id. at 706.
Defendant’s reliance on Kos Pharmacy is misplaced for three reasons. First, the
case was decided in the context of a motion for preliminary injunction, and the Court
made it clear that its determination turned on the less formal evidentiary standards
applied in that context. Id. at 718 (“It is well established that ‘a preliminary injunction is
customarily granted on the basis of procedures that are less formal and evidence that is
less complete than in a trial on the merits.’”) (quoting University of Texas v. Camenisch,
451 U.S. 390, 395 (1981)). Second, to the extent that the Court deemed actual confusion
evidence admissible non-hearsay, it appeared to refer only to Berg’s testimony that she
received over 60 reports of alleged confusion, and not testimony describing the alleged

MEMORANDUM DECISION AND ORDER - 6

incidents themselves. Id. at 719 (“Berg could attest to having received more than 60
reports of confusion in his official capacity. Berg’s direct testimony that he received
numerous and varied reports of alleged confusion is not hearsay but a factual claim.”).
Moreover, as Plaintiff notes, the case is distinguishable on the facts. Kos Pharmacy
involved over 60 reports of alleged confusion, which led the Court to determine that “the
very number of reports, and the variety of sources and types of confusion reported bolster
the reliability of the reports as a whole.” Id. Here, the declarations of TimberStone
employees attests to only 5 reports of alleged confusion, all from anonymous callers.
Rizzo Decl. ¶¶ 2–8, Dkt. 41-3; Webster Decl. ¶¶ 25–28, Dkt. 41-1.
Likewise, the Court finds inapplicable here the Rule 803(6) “business records”
exception to the hearsay rule, often advanced as a basis for admitting logs of consumer
confusion. Fed. R. Evid. 803(6); see, e.g., Ortho Pharm. Corp. v. Cosprophar, Inc., 828
F. Supp. 1114, 1119 (S.D.N.Y. 1993), aff’d, 32 F.3d 690 (2d Cir. 1994). It is clear from
Ms. Webster’s declaration that tracking customer calls was not a “regularly conducted
activity” of TimberStone, but rather was initiated in response to events underlying this
case. See Fed. R. Evid. 806(6)(B); Webster Decl. ¶ 25, Dkt. 41-1. (“As a result of IGPI’s
confusing use of the MARKS, I caused TimberStone Golf Course staff to begin tracking
instances of golfer confusion.”). The timing alone supports an inference that the records
were prepared in anticipation of litigation, and therefore inadmissible. See Palmer v.
Hoffman, 318 U.S. 109, 113 (1943) (documents created in anticipation of litigation are
inadmissible under the business records exception).

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Defendant has offered no alternative theory as to how Ms. Webster’s testimony
would qualify under an exception to the hearsay rule, nor does the Court see one.
Therefore, the Court concludes that testimony by Ms. Webster as to statements by
TimberStone employees regarding golfer confusion is inadmissible.
ORDER
IT IS ORDERED that:
1.

Plaintiff’s Motion in Limine (Dkt. 62) is GRANTED IN PART insofar as
it seeks to prohibit hearsay testimony by Ms. Webster regarding incidents
of golfer confusion reported to her by other TimberStone employees.

2.

Plaintiff’s Motion in Limine (Dkt. 62) is DENIED IN PART, without
prejudice to the presentation of a more focused objection at trial, insofar as
it seeks a general prohibition on testimony by TimberStone employees who
directly interacted with confused customers.

DATED: September 16, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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