Aniplex, Incorporated v. Upper Deck Company

Filing 265

ORDER Granting in Part and Denying in Part 227 Motion in Limine 1. Granted as to the SME demand letter and Denied in all other respects. Signed by Judge Howard D. McKibben on 9/2/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANIPLEX, INCORPORATED, a Japanese )
corporation,
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Plaintiff and Counter- )
Defendant,
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vs.
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THE UPPER DECK COMPANY, a Nevada )
corporation,
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Defendant and
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Counterclaimant.
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_________________________________ )

2:08-cv-00442-HDM-PAL

ORDER

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Before the court is plaintiff Aniplex’s motion in limine 1
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which seeks to exclude testimony regarding Aniplex’s alleged lack
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of rights to the original Kiba property. (#227) Defendant Upper
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Deck has opposed the motion.1 (#245) Plaintiff has replied. (#254)
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Upper Deck’s opposition also discusses the issue of Upper

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Deck’s approval rights of Kiba anime production under the Madhouse’s

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agreement with Aniplex, but this is not the subject of Aniplex’s

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motion in limine 1, which focuses solely on Aniplex’s right to the
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Plaintiff argues that it had a verbal agreement with Dream

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Ranch, an original co-owner of the Kiba property, to the Kiba

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copyrights before entering into the Kiba Short Form Agreement with

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Upper Deck, and that a verbal agreement to transfer copyrights is

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enforceable under Japanese law.

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preclude any evidence relating to Aniplex’s right to transfer the

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original Kiba copyrights to Upper Deck.

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Accordingly, plaintiff seeks to

Defendant argues that the transfer of the Kiba copyrights was
not valid because the agreement was not in writing and was not

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approved by all co-owners of the Kiba property.

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regarding the Kiba copyrights is material, because if Aniplex had

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failed to secure the rights to the original Kiba property before

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granting a license to Upper Deck, then it lacked the ability to

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perform its obligations to Upper Deck under the parties' contract

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and materially breached that contract.

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evidence in support of this argument is a July 25, 2006 demand

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letter from SME, another original co-owner of the rights, to

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Aniplex threatening legal action for Aniplex's and Upper Deck's

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alleged unauthorized use of the original Kiba copyrights in their

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production of the Kiba anime series and trading card game.

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Thus, testimony

Defendant’s strongest

On February 24, 2011, the court denied plaintiff’s partial

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motion for summary judgment (#129) on the same issue of the Kiba

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property rights now raised in plaintiff’s motion in limine 1.

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(#227) By precluding evidence on that issue now, the court would be

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reversing its earlier decision.

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consider five factors: (1) the first decision was clearly

In order to do so the court must

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Kiba copyrights from the original owners.
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erroneous, (2) there has been an intervening change of law, (3) the

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evidence is substantially different, (4) other changed

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circumstances exist, or (5) a manifest injustice would otherwise

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result. McClain v. National Fire & Marine Insurance Co., 2009 WL

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484412 *1 (D. Nev. Feb. 24, 2009) (citing United States v. Cuddy,

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147 F.3d 1111, 1114 (9th Cir. 1998).).

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The court finds none of these factors present.

First,

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declines to find that its first decision on summary judgment was

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clearly erroneous.

Second, there has been no change in law.

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Third, the evidence before the court now is identical to that which

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was before the court on plaintiff’s partial motion for summary

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judgment.

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manifest injustice would occur if the court were to permit the

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parties to present competing evidence on the issue of the Kiba

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rights.

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factual disputes. See Woods v. Slater Transfer and Storage, Inc.,

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2010 WL 3433052 *1 (D. Nev. Aug. 27, 2010); Sprint/United Mgmt. Co.

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v. Mendelsohn, 552 U.S. 379, 384 (2008).

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concludes that in this respect plaintiff’s motion in limine 1 is

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denied.

Fourth, no other changed circumstances exist.

Fifth, no

Moreover, motions in limine are not intended to resolve

Therefore, the court

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However, one discreet issue was raised by plaintiff in its

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motion in limine 1 that the court believes warrants the granting of

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the motion, and that is the July 25, 2006 demand letter from SME to

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Aniplex.

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Slater Transfer and Storage, Inc., 2010 WL 3433052 *4 (D. Nev.

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August 27, 2010); FRE 801, 802, 408.

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the letter is hearsay or offer an exception to the rule in its

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opposition.

Demand letters constitute inadmissable hearsay. Woods v.

Defendant does not dispute

The court concludes that the SME demand letter is
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inadmissable hearsay.
Accordingly, plaintiff’s motion in limine 1 (#227) is GRANTED
as to the SME demand letter and DENIED in all other respects.

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IT IS SO ORDERED.

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DATED: This 2nd day of September, 2011.

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____________________________
UNITED STATES DISTRICT JUDGE

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