Sleepy's LLC v. Select Comfort Wholesale Corporation et al

Filing 709

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)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------x SLEEPY'S, LLC, Plaintiff, MEMORANDUM & ORDER -against- 07 CV 4018 (TCP) (ARL) SELECT COMFORT WHOLESALE CORPORATION, SELECT COMFORT RETAIL CORPORATION and SELECT COMFORT CORPORATION, Defendants. --------------------------------------x Stephen G. Crane, Special Master The undersigned, having been appointed Special Master pursuant to Fed. R. Civ. P. 53(a) (1) (C) by order dated and filed January 10, 2012, of the Hon. Thomas C. Platt, United States 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 Nameless, Faceless "Customers" that Allegedly Plaintiff's Heard and Were 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, the plaintiff asserts that the testimony and email about customers' statements are exception (Fed. admissible Rules of under Evict. the present 803 [1)) 1 and sense the impression state of mind exception (Fed. Rules of Evict. 803[3]). executives, Mr. Blank and Mr. It also contends that its Bookbinder, may testify to the 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 to offer the causation. customer They refute statements the for notion their that truth these to prove statements are 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. Mr. Blank and Mr. Bookbinder may testify about learned of customers reporting that the defendants' had made denigrating cancellation with statements, Sleepy's of not orders what they sales people for the truth of they had placed, their but to 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 Too, Ltd. v Gemmy Industries Corp., 2 111 F.3d 993, 1003-1004 [2d Cir. 1997]; Stelwagon Mfg. Co. v Tarmac Roofing Systs., Inc., 63 F.3d 1267, 1274-1275 [3d Cir. 1995], cert den 516 us 1172 [1996]; Trouble' v The Wet Seal. 2001]). Neither Inc., should 179 F.Supp.2d 291, they be admitted as 298-299 present [SONY sense i.mpressions under Fed. R. Evict. 803 (1) because they were not made contemporaneous reflect, with the event, and the customers had time thereby risking insincerity and untrustworthiness to (see Herman Schwabe, Inc. v United Shoe Machinery Coro., 297 F.2d 906, 914 at n. [1962]; 10 Menes F.Supp.2d 598, On a [2d Cir.], v cert den 369 US 865, reh den 370 US 20 City University of New York Hunter Coll., 604 [SONY 2008]). different footing stand the customer statements expressions of their state of mind under Fed. R. Evict. These of showing are admissible for the 1imi ted purpose motive not to buy from Sleepy's (see Callahan v A.E.V., F. 3d 237, 252-253 578 [3d Cir. 1999]; Schwabe, supra, as 803 (3). their Inc., at 914). 182 The lack of records of the one cancelling customer goes to the weight rather than the admissibility of the customer's statement. Accordingly, 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 3

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