Sleepy's LLC v. Select Comfort Wholesale Corporation et al
MEMORANDUM & ORDER: DENYING the 507 Motion in Limine to Exclude Testimony and Evidence Regarding Plaintiff's Nameless, Faceless "Customers" That Allegedly Heard and Were Affected by Defendant's Statements. As long as the plaint iff does not proffer the customer statements as proof of causation, and because they are admissible on one of the two theories that plaintiff relies on, the defendants' motion is denied. Ordered by Stephen G. Crane, Special Master on 3/5/2012. (Attachments: #(1) Certificate of Service) c/m by ecf. (Mahon, Cinthia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
07 CV 4018 (TCP)
SELECT COMFORT WHOLESALE CORPORATION,
SELECT COMFORT RETAIL CORPORATION and
SELECT COMFORT CORPORATION,
Stephen G. Crane, Special Master
pursuant to Fed. R. Civ. P. 53(a) (1) (C) by order dated and filed
District Judge, and having heard oral argument on January 24 and
30, 2012, hereby renders the following decision on the Defendants'
Motion to Exclude Testimony and Evidence Regarding
Affected by Select Comfort's Statements.
For the following reasons the defendants' motion is DENIED.
Despite the length of its title, this motion simply seeks to
bar as hearsay the testimony of four of the plaintiff's witnesses
and the introduction of one email.
With equal simplicity,
plaintiff asserts that the testimony and email about customers'
exception (Fed. Rules of Evict. 803).
It also contends that its
customers' statements, not for the truth of the fact that customers
cancelled because of Select Comfort's denigrating statements but to
show how its management learned of the disparaging statements and
what steps it took to stem them.
It relates as well to the bad
faith defense of a pressure tactic to get the defendants to extend
the Dealer Agreement.
In reply, the defendants contend that the plaintiff is seeking
present sense impressions, and they assert that plaintiff's lack of
evidence, including documentation of any cancelled orders, renders
the state of mind exception irrelevant.
Blank and Mr.
Bookbinder may testify about
learned of customers reporting that the defendants'
demonstrate how they learned of the denigration, what they did in
response and to blunt the defense of their bad faith in trying to
extract an extension of the Dealer Agreement.
The defendants persuade that the statements of the customers,
however, are not admissible to prove causation of damages, if any,
due to the defendants' employees' disparagement (see Fun-Damental
v Gemmy Industries Corp.,
111 F.3d 993,
Cir. 1997]; Stelwagon Mfg. Co. v Tarmac Roofing Systs.,
F.3d 1267, 1274-1275 [3d Cir. 1995], cert den 516 us 1172 ;
Trouble' v The Wet Seal.
179 F.Supp.2d 291,
i.mpressions under Fed. R. Evict. 803 (1) because they were not made
thereby risking insincerity and untrustworthiness
Herman Schwabe, Inc. v United Shoe Machinery Coro., 297 F.2d 906,
914 at n.
cert den 369 US 865,
reh den 370 US 20
City University of New York Hunter Coll.,
expressions of their state of mind under Fed.
1imi ted purpose
motive not to buy from Sleepy's (see Callahan v A.E.V.,
F. 3d 237,
lack of records of the one cancelling customer goes to the weight
rather than the admissibility of the customer's statement.
as long as the plaintiff does not proffer the
customer statements as proof of causation,
and because they are
admissible on one of the two theories the plaintiff relies on, the
defendants' motion is DENIED.
Dated: March 5, 2012
Central Islip, New York
Crane, Special Master
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