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)
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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