Southern Illinois Storm Shelters, Inc. v. 4semo.com, Inc.

Filing 185

ORDER denying 165 Motion in Limine; denying 167 Motion in Limine; denying 174 Motion in Limine and denying 176 Motion in Limine. Signed by Judge David R. Herndon on 8/4/16. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
4SEMO.COM, INC.,
Plaintiff,
v.

No. 13-0297-DRH

SOUTHERN ILLINOIS
STORM SHELTERS, INC.,
INGOLDSBY EXCAVATING, INC.,
and BOB INGOLDSBY,
d/b/a BOB INGOLDSBY EXCAVATING,
Defendants.
ORDER
HERNDON, District Judge:
Pending before the Court are several motions in limine filed by plaintiff and
the responses thereto. Based on a review of the pleadings and the following, the
Court denies the motions in limine.
The district court has the inherent authority to manage the course of a
trial. Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443
(1984). The court may exercise this power by issuing an evidentiary ruling in
advance

of

trial. Id. A

party

may

seek

such

a

ruling

by

filing

a motion in limine, which requests the court's guidance on what evidence will (or
will not) be admitted at trial. Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir.
2013). Prudent motions in limine serve a gatekeeping function by allowing the
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judge “to eliminate from further consideration evidentiary submissions that clearly
ought not be presented to the jury.” Jonasson v. Lutheran Child & Family
Servs., 115 F.3d 436, 440 (7th Cir. 1997). By defining the evidentiary
boundaries, motions in limine both permit “the parties to focus their preparation
on those matters that will be considered by the jury,” id. and help ensure “that
trials are not interrupted mid-course for the consideration of lengthy and complex
evidentiary issues,” United States v. Tokash, 282 F.3d 962, 968 (7th Cir . 2002).
As with all evidentiary matters, the court has broad discretion when ruling
on motions in limine. United States v. Ajayi, 808 F.3d 1113, 1121 (7th Cir.
2015); Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002).
Moreover, the Court can change its ruling at trial, “even if nothing unexpected
happens[.]” Luce, 469 U.S. at 41, 105 S.Ct. 460. Ruling in limine are speculative
in effect; essentially, they are advisory opinions. Wilson v. Williams, 182 F.3d
562, 570 (7th Cir. 1999) (Coffey, J., concurring in part and dissenting in part).
First, 4SEMO.com moves in limine to preclude the introduction by
defendants of evidence of deductions, expenses or costs (Docs. 165 & 166).
4SEMO.com maintains that it is entitled to disgorge and receive profits earned by
defendants and/or their dealers from, under, or in connection with the improper
use of its trademark and that it is its burden to only show the revenues derived from
such use, and then the burden switches to defendants to show any direct expenses,
costs or deductions it wishes to attempt to claim to reduce the shown revenues to a
profit number. 4SEMO.com seeks preclusion of any alleged expenses or costs
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purportedly incurred by defendants in connection with the production, sales or
installation of storm shelters because defendants have not produced or identified
any potentially applicable costs or expenses associated with said use. Defendants
counter that they have met their burden concerning proof of any potential costs or
deductions that may need to be claimed. They contend that in addition to the tax
returns, bank statements, and copies of cancelled checks, they have turned over
their entire QuickBooks accounting program, un-redacted, which contains all of
their accounting information and business transactions made by the businesses
since the inception.

Defendants maintain that this information shows costs,

deductions or any other information needed to prove expenses. At this time, the
Court agrees with defendants and DENIES this motion in limine.
Next, 4SEMO.com moves to preclude the introduction of the use of the
Lifesaver mark by SISS or its dealers prior to authorization from 4SEMO (Doc.
167). 4SEMO argues that this information should not be allowed as it is legally
irrelevant, would be confusing to the jury and would be prejudicial to 4SEMO.
Defendants oppose the motion arguing that the evidence is relevant as to prior use
and for other purposes, that it is relevant regardless of whether such use was
pursuant to a license or permission from LSS, that the use of the mark by
defendants and their dealers is relevant and that this evidence is relevant to the
issues in the case. The Court agrees with defendants and finds that this evidence
is relevant and material to the issues in this case and what 4SEMO.com must

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prove. Thus, the Court also DENIES this motion in limine.
Next, 4SEMO.com moves to preclude any evidence of use by Life-Saver
Storm Shelters, LLC of the Lifesaver mark (Doc. 174). 4SEMO.com argues that
this evidence is irrelevant, prejudicial and will confuse the jury. Defendants assert
that this evidence is relevant and admissible for reasons beyond showing
trademark rights of LSS, LCC as the evidence relates directly to 4SEMO.com’s
claims. Specifically, defendants assert that the evidence lends credence to their
version of events/defense.

Again, the Court agrees with defendants’ reasoning,

finds that this evidence is relative and material to the issues in this case and
DENIES the motion.
Lastly, 4SEMO.com moves to all testimony or evidence obtained from the
arhive.org website (Doc. 176).

4SEMO.com argues that this evidence is not

reliable, is incapable of being authenticated and is inadmissible.

Defendants

maintain the opposite as to the evidence. Based on defendants’ reasoning, the
Court DENIES the motion at this time.
IT IS SO ORDERED.

Judge Herndon
2016.08.04
13:30:29 -05'00'

Signed this 4th day of August, 2016.

United States District Court

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