Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 248

MOTION in Limine No. 5 by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated. (Delgado, William)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
Case No. 2:09-CV-10756
Hon. Marianne O. Battani

vs.
NAVIGATION CATALYST SYSTEMS, INC.,
a Delaware corporation; CONNEXUS CORP.,
a Delaware corporation; FIRSTLOOK, INC.,
a Delaware corporation; and EPIC MEDIA
GROUP, INC., a Delaware corporation,

Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Anthony P. Patti (P43729)
BUTZEL LONG, P.C.
HOOPER HATHAWAY, PC
150 West Jefferson, Suite 100
126 South Main Street
Detroit, MI 48226
Ann Arbor, MI 48104
[phone]
734-662-4426
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Local Counsel for Defendants
______________________________________________________________________

DEFENDANTS CONNEXUS CORPORATION, FIRSTLOOK, INC., AND
NAVIGATION CATALYST SYSTEMS, INC.’S MOTION IN LIMINE NO. 5

NOTICE OF MOTION AND MOTION
TO THIS HONORABLE COURT, PLAINTIFF, AND ITS ATTORNEYS OF RECORD:
Connexus Corporation, Firstlook, Inc., and Navigation Catalyst Systems, Inc.
(collectively the “Defendants”) hereby move this court in limine for an order excluding any
reference, insinuation, questioning, argument, or evidence (testimony or documents) regarding
other companies associated with Defendants, including Global Quest, April Sea, Metes,
Mercado, Casbah, Nomen, and Valorem.
The bases for this Motion are set forth in the Memorandum of Points and Authorities; to
wit, that such argument and testimony are irrelevant to this matter pursuant to Federal Rule of
Evidence Nos. 402. Even if such evidence was relevant and admissible, the prejudicial effect of
such evidence substantially outweighs its probative value, and, therefore, the Court should
exercise its discretion to exclude such argument and testimony under Federal Rule of Evidence
No. 403.
Counsel for Defendants have explained the nature of this Motion and its legal basis and
requested, but did not obtain, concurrence in the relief sought.
RESPECTFULLY SUBMITTED this 24th day of February, 2012 (Pacific Time).
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION
With this motion in limine, Defendants seek to exclude any argument and/or evidence

related to other companies associated with Defendants or Defendants’ ultimate parent, The Epic
Media Group. This is a lawsuit about whether Defendants’ registration of various domain names
violated Plaintiff’s trademark rights. Three parties to this lawsuit (Connexus, Firstlook, and
Navigation Catalyst) are proceeding to trial. Two other companies within the corporate family
have been already been dismissed (i.e., Basic Fusion and The Epic Media Group). During
discovery, there was testimony regarding the existence of other companies that are associated
with Defendants (including Global Quest, April Sea, Metes, Casbah, Nomen, and Valorem).
These companies were not involved in the registration of any of the domain names at issue and,
therefore, their existence is irrelevant to this lawsuit.
II.

ARGUMENT
A.

EVIDENCE OF OTHER COMPANIES IS IRRELEVANT.

The companies involved with the registration of the domain names at issue are either
proceeding to trial or have been dismissed from this lawsuit. Navigation Catalyst is the
registrant of the domain names at issue. Firstlook, the parent of Navigation Catalyst, was the
company responsible for the monetization of the domain names. Connexus is the parent
company of Firstlook. Basic Fusion (previously named as a defendant but ultimately dismissed)

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acted as the registrar of the domain names.1 No other companies were involved with the
registration of the domain names at issue.
During the deposition of The Epic Media Group by its designee David Graff, Mr. Graff
testified about the existence of other companies associated with Defendants, including Global
Quest, April Sea, Metes, Casbah, Nomen, and Valorem. See Exhibit A to Declaration of
William A. Delgado, dated February 24, 2012. According to Mr. Graff, these companies were
primarily set up to help Firstlook’s international expansion. April Sea, for example, was to act as
the registrar for international domain names, and Metes would act as the registrant for
international domain names. Id. That said, there was limited international expansion, and some
of these companies were dissolved while others were slated to be dissolved. Id.
In any event, neither these companies nor their intended purpose is relevant to this
dispute and, particularly, the domain names at issue in this case. They are, therefore, irrelevant,
and Plaintiff should not be allowed to argue, for example, that Defendants are setting up
additional companies to avoid liability, play “shell games,” or anything else of such nature. Fed.
R. Evid. 402.
B.

SORTING THROUGH EVIDENCE OF THESE OTHER COMPANIES
WOULD RESULT IN A WASTE OF TIME.

In addition to being wholly irrelevant, arguments like the ones noted above would simply
result in a waste of time as Defendants would have to present witnesses to testify about the
creation of these entities, the reason for their creation, why they are perfectly legal and

1

The Epic Media Group, the parent company of Connexus Corporation following Epic’s
acquisition of Connexus, was also named as a defendant in this matter but has also been
dismissed.
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appropriate, etc. None of these items are at issue in this lawsuit and would only result in very
inefficient trial. For that reason, even if the Court thought that the existence of such companies
was marginally relevant, the Court should nevertheless exclude evidence and argument regarding
their existence under Fed. R. Evid. 403.
III.

CONCLUSION
The existence of other companies associated with Defendants set up to aid in the

international expansion of Firstlook is irrelevant to this lawsuit involving domain names alleged
to violate Plaintiff’s trademarks. For that reason, evidence and arguments as to the existence of
these other companies should be precluded at trial.
RESPECTFULLY SUBMITTED this 24th day of February, 2012 (Pacific time).
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on February 24, 2012, Pacific Time, I electronically filed the
foregoing paper with the Court using the ECF system which will send notification of
such filing to the following:
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
BUTZEL LONG, P.C.
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
Local Counsel for Defendants

Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

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