Serverside Group Limited et al v. Tactical 8 Technologies LLC et al

Filing 169

MEMORANDUM OPINION AND ORDER denying 143 Motion in Limine. See text of Order for details. Signed by Judge Mark W Bennett on 1/10/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
SERVERSIDE GROUP LIMITED and
SERVERSIDE GRAPHICS, INC.,
No. C 12-2016-MWB
Plaintiffs,
vs.
MEMORANDUM OPINION AND
ORDER REGARDING DEFENDANTS’
MOTION IN LIMINE

TACTICAL 8 TECHNOLOGIES,
L.L.C., and BANK IOWA
CORPORATION,
Defendants.

___________________________
This patent-infringement action alleges infringement by defendants Tactical 8
Technologies, L.L.C., now known as Banno, L.L.C. (Banno), and Bank of Iowa
Corporation (BIC), collectively “the Iowa Defendants,” of two patents, U.S. Patent
No. 7,931,199 (the ‘199 patent) and U.S. Patent No. 7,946,490 (the ‘490 patent), both
entitled “Computerized Card Production Equipment,” owned by plaintiffs Serverside
Group Limited and Serverside Graphics, Inc., collectively “Serverside.” This case is
set for trial to begin on January 21, 2014. This case is now before me on the Iowa
Defendants’ November 20, 2013, Motion In Limine (docket no. 143). Serverside filed
its Resistance To Defendants’ Motion In Limine (docket no. 149) on December 11,
2013. The Iowa Defendants filed no reply.
As the parties appear to recognize, much of the Iowa Defendants’ Motion In
Limine is duplicative or redundant of their September 16, 2013, Motion To Strike
(docket no. 137), as it seeks to exclude any expert opinions and testimony that were not
disclosed in Serverside’s expert reports, including, but not limited to, any reply or
1

rebuttal by Serverside’s experts to the Iowa Defendants’ expert reports and opinions.
While the Iowa Defendants’ Motion To Strike only addressed what the Iowa Defendants
asserted was the unjustified, belated disclosure of certain additional opinions in a
declaration of one of Serverside’s experts, Alex Cheng, offered with Serverside’s
Resistance to their Motion For Summary Judgment, their Motion In Limine also seeks
to exclude any reply or rebuttal opinions of a second Serverside expert, Brent K.
Bersin, where Mr. Bersin has not offered any opinions or any additional declaration
apart from his original report. Serverside points out that I denied the Iowa Defendants’
Motion To Strike. Serverside argues that, to the extent that the Iowa Defendants’
Motion In Limine seeks to reach beyond the Cheng Declaration, the Iowa Defendants
are not seeking to constrain the experts beyond what Rule 26(a)(2)(B)(i) already
requires, so that their Motion In Limine is unnecessary. Serverside argues that any
objections to the scope of expert testimony can be resolved at trial.
I agree with the parties—or, at least, with Serverside—that much of the Iowa
Defendants’ Motion In Limine is “mooted” by my disposition of the Iowa Defendants’
Motion To Strike in my intervening Memorandum Opinion And Order Regarding
Defendants’ Motion For Summary Judgment And Motion To Strike Affidavit Of
Plaintiffs’ Expert (docket no. 144), published at Serverside Group Ltd. v. Tactical 8
Techs., L.L.C., ___ F. Supp. 2d ___, 2013 WL 6448824 (N.D. Iowa Dec. 9, 2013),
filed December 9, 2013. To the extent that the Iowa Defendants’ Motion To Strike and
their Motion In Limine overlap, their Motion In Limine is denied. Notwithstanding
that denial, to the extent that the Iowa Defendants can demonstrate to a jury that
Mr. Cheng’s opinions in his Declaration exceed the scope of opinions properly
disclosed in his Report, the Iowa Defendants may request that I “advis[e] the jurors of
the discrepancy and instruct[ ] them to take this discrepancy into consideration when
weighing [Mr. Cheng’s] testimony and credibility.” Shuck v. CNH America, L.L.C.,
2

498 F.3d 868, 876 (8th Cir. 2007). Similarly, to the extent that the Iowa Defendants’
Motion In Limine exceeds their Motion To Strike, the Motion In Limine is also denied.
Again, notwithstanding that denial, to the extent that the Iowa Defendants can
demonstrate to a jury that Mr. Bersin’s opinions in his trial testimony exceed the scope
of opinions properly disclosed in his Report, the Iowa Defendants may request that I
“advis[e] the jurors of the discrepancy and instruct[ ] them to take this discrepancy into
consideration when weighing [Mr. Bersin’s] testimony and credibility.” Id.
THEREFORE, the Iowa Defendants’ November 20, 2013, Motion In Limine
(docket no. 143) is denied.
IT IS SO ORDERED.
DATED this 10th day of January, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

3