S & L Vitamins, Inc. v. Australian Gold, Inc.

Filing 158

ORDER granting 143 Motion in Limine. Ordered by Judge Joanna Seybert on 1/12/2009. c/m by ecf and by first class mail. (Mahon, Cinthia) Modified on 1/15/2009 (Mahon, Cinthia).

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------X S&L VITAMINS, INC., Plaintiff, -againstAUSTRALIAN GOLD, INC., Defendant. ------------------------------X APPEARANCES: For Plaintiff and Ronald D. Coleman, Esq. Third-Party Defendants Goetz Fitzpatrick, LLP Larry Sagarin and One Penn Plaza, Suite 4401 John Does 1-10 New York, NY 10119 Joel Geoffrey MacMull, Esq. Goetz Fitzpatrick, LLP One Penn Plaza, Suite 4401 New York, NY 10119 For Defendant: Francis J. Earley, Esq. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC 666 Third Avenue New York, NY 10017 Michael A. Wukmer, Esq. Ice Miller, LLP One American Square Box 82001 Indianapolis, IN 46282-0200 Scott D. Matthews, Esq. New Sunshine, LLC 6270 Corporate Drive Indianapolis, IN 46278 SEYBERT, District Judge: Presently pending before the Court is Defendant's in limine motion in which Australian Gold, Inc. ("AG") asks the Court to prohibit Plaintiff, S&L Vitamins, Inc. ("S&L") and its attorneys MEMORANDUM AND ORDER 05-CV-1217(JS)(MLO)

and witnesses from making any statements or offering evidence regarding AG's "size, wealth, or financial status, strength, or condition" as irrelevant to any issue in this case. In turn, S&L

submitted, "not so much an opposition as a `response,' . . . because the proposition being raised by AG - that improper remarks by counsel and witnesses are forbidden by the rules and should not be tolerated are already a matter of well-established

law . . . ."

(Pl.'s Opp'n 2).

In other words, S&L admits that

AG's size, wealth, financial status, strength, or condition is irrelevant to any issue in this case, and thus impliedly acquiesces to refrain from making reference to AG's aforementioned traits. Rule 401 of the Federal Rules of Evidence defines

relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The Court agrees with

the parties that reference to AG's size, wealth, financial status, strength, or condition would be irrelevant and improper; in this case, S&L does not seek damages but only a declaratory judgment. For the foregoing reasons, AG's in limine motion is GRANTED. SO ORDERED. /s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: January 12, 2009 Central Islip, New York