Crabar/GBF, Inc. v. Wright et al

Filing 463

MEMORANDUM AND ORDER The defendants' motion in limine (filing 431 ) is granted in part and denied in part as set forth above. Ordered by Senior Judge John M. Gerrard. (LRM)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CRABAR/GBF, INC.,
Plaintiff and
counterclaim
defendant,
vs.
8:16-CV-537
MARK WRIGHT and WRIGHT
PRINTING CO.,
MEMORANDUM AND ORDER
Defendants and
counterclaimants,
and
MARDRA SIKORA, JAMIE
FREDRICKSON, and ALEXANDRA
KOHLHAAS,
Defendants.
This matter comes before the Court on the defendants' motion in limine,
filing 431. The motion and briefs were filed prior to the Court's December 5,
2022, order, filing 445, addressing some overlapping issues. The Court heard
argument on these matters in open court on March 20, 2023, at the pretrial
conference. The motion will be granted in part and denied in part as set forth
below.
ISSUE #1: INFLAMMATORY LANGUAGE
The defendants have requested that this Court prohibit the plaintiff from
using certain inflammatory language which might prejudice the jury. The
plaintiff has indicated it does not intend to use such language in its opening

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statement or closing argument. The Court will allow words such as "copy,"
"copied," or "duplicate," because these words are neither inflammatory nor
prejudicial. However, this Court will not allow the words "stole," "looted,"
"ripped off," "robbed," "pilfered," or similar loaded language in opening
statements, questions, witness answers, closing statements, or otherwise
throughout trial. See Deflecto LLC v Dundas*Jafine Inc., No. 4:13-CV-116,
2015 WL 9413148, at *1 (W.D. Mo. Dec. 22, 2015).
ISSUE #2: REFERENCES TO DISMISSED CLAIMS
The defendants seek to prohibit the plaintiff from referencing a
dismissed claim for a violation of the Computer Fraud and Abuse Act, 18
U.S.C. § 1030 et seq. Specifically, the defendants do not want the plaintiff to
reference "protected computers used in interstate commerce" or "downloading
electronic files with the intent to defraud." Filing 440 at 4. The Court will
sustain the motion to prevent the plaintiff from referencing "protected
computers used in interstate commerce," and will not allow the specific phrase
"downloading electronic files with the intent to defraud" to be used while
examining witnesses. But, to the extent it is relevant to any existing claims,
the plaintiff will be able to inquire as to electronic files downloaded and any
reasons for the downloads, and reference the same (if relevant) during closing
arguments.
ISSUE #3: UNDISCLOSED DAMAGE THEORIES
Relying on Fed. R. Civ. P. Rules 26(a) and 37(c), the defendants request
that the plaintiff be precluded from discussing certain allegedly undisclosed
theories of damages. Specifically, the defendants appear to take issue with any
rescission remedy sought by the plaintiff. Filing 440 at 5.

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The Court's December 5 order dismissed the plaintiff's fraud claim as to
the Purchase Agreement, so of course the plaintiff may not now seek rescission
of that contract as a remedy. Filing 445 at 38-39. This handles the $9 million
rescission damages referenced in the parties' briefs. Filing 435 at 7-8; filing
440 at 5. However, the plaintiff's fraud claim as to the Release Agreement
remains. And, the parties have been aware that the Release Agreement may
be voidable. See, e.g., filing 253 at 15. The plaintiff still can seek to void (or
rescind) the Release Agreement, which, if successful, means that the
obligations of the Purchase Agreement remain in effect and the plaintiff may
seek certain breach of contract damages otherwise precluded by the Release.
Filing 253 at 15; see also filing 445 at 41 n.12. The rescission discussion in the
footnote is related to the Release Agreement, not the Purchase Agreement.
There is no unfair surprise and no prejudice because the potentially voidable
nature of the Release has been an issue throughout the case, albeit without the
word "rescission" being used.
For these reasons, on this issue, the defendants' motion is denied.
ISSUE #4: TELEPHONE NUMBER
The defendants also want to prevent evidence of the "vanity number"
that the defendants acquired, 1-844-FOLDER2. The plaintiff uses the phone
number 1-800-FOLDERS. The defendants assert that because they did not
promote the vanity number, the vanity number is not relevant to the issue of
whether there was confusion in the market regarding the defendants' and
plaintiff's services. Filing 432 at 4. However, the acquisition of the phone
number is relevant to other issues beyond trademark confusion, such as the
defendants' intent regarding fraud or tortious interference. Evidence of the
vanity number, as opposed to just the numerals, is not unfairly prejudicial, and

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is relevant to many issues in this case. On this matter, the defendants' motion
is denied.
ISSUE #5: TRADE SECRETS
The final issue in the defendants' motion in limine is a request for the
plaintiff's alleged trade secrets in a "specific, clear, detailed, and precise list."
Filing 440 at 7 (quoting Cardiovention, Inc. v. Medtronic, 483 F. Supp. 2d 830,
844 (D. Minn. 2007)). It appears the parties are harmonized on which pieces of
information constitute trade secrets. Compare filing 302 at 50 (the operative
complaint listing trade secrets as "customer list files, customer information
files, sales data files, the CAD die files, product cost files, and cost-of-goods
minimization-know-how arising from presentation folder pocket sizing") and
filing 442 at 23 (plaintiff's proposed jury instructions listing trade secrets as
"customer lists and sales information, cost-modeling information, and die
files") with filing 441 at 14 (defendants' proposed jury instructions listing trade
secrets as "die files and die inquiry spreadsheet. . . customer lists, sales
information, and cost-modeling spreadsheets").
The parties have indicated they will amend their proposed jury
instructions in response to the Court's December 5 order, filing 445. So, the
Court will not rule on this issue at this time, but may intervene if the parties
seek further clarity on which exhibits or issues are allegedly trade secrets.
IT IS ORDERED that the defendants' motion in limine (filing 431)
is granted in part and denied in part as set forth above.

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Dated this 21st day of March, 2023.
BY THE COURT:
John M. Gerrard
Senior United States District Judge

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