Speedfit LLC et al v. Woodway USA, Inc. et al

Filing 315

ORDER granting in part, and denying in part 289 defendant's Motions in Limine. For the reasons stated in the attached Memorandum and Order, the court:Motion in Limine 1: GRANTS defendant's first motion in limine< /i>. Plaintiffs may not put evidence of or testimony concerning Speedfit's sales and profit margins before the jury in support of their unjust enrichment claim, including as a theory of damages.Motion in Limine 2: GRANTS defendan t's second motion in limine to the extent plaintiffs intend to have Astilean testify regarding Speedfit's sales. Defendant's motion is otherwise MOOT.Motion in Limine 3: DENIES defendant's third motion in limine. Plaintiffs may introduce evidence of Woodway's sales and profits as it relates to plaintiffs' unjust enrichment claim. Any risk of confusing the jury will be mitigated by a jury instruction clarifying the scope of permissible damages for unjust enrichment liability.Motion in Limine 4: DENIES defendant's fourth motion in limine as to plaintiffs' damages calculations.Motion in Limine 5: GRANTS defendant's fifth motion in limine. Plaintiffs are precluded from directing ad hominem remarks toward defendant at trial. Motion in Limine 6: GRANTS defendant's sixth motion in limine. Plaintiffs are precluded from asserting entitlemen t to punitive damages.Motion in Limine 7: Finds that defendant's seventh motion in limine is MOOT.Motion in Limine 8: Finds that defendant's eighth motion in limine is MOOT.Motion in Li mine 9: Finds that defendant's ninth motion in limine is MOOT.Motion in Limine 10: GRANTS defendant's tenth motion in limine. Plaintiffs are precluded from introducing evidence relating to trade secret misa ppropriation or any other unpled claim. However, the court's order granting defendant's tenth motion in limine shall not be construed as barring plaintiff from moving for leave to amend the Supplemental Complaint pursuant to the Fed eral Rules of Civil Procedure.Motion in Limine 11: Finds that defendant's eleventh motion in limine is largely MOOT. To the extent plaintiffs intend to introduce evidence of subsequent remedial measures to prove their unju st enrichment claim, the court reserves decision and will evaluate the admissibility of such evidence at trial. Motion in Limine 12: Declines to consider defendant's twelfth motion in limine because it is WITHDRAWN. Motion in Limine 13: Finds that defendant's thirteenth motion in limine is largely MOOT. To the extent plaintiffs plan to introduce the unexecuted confidentiality agreements at trial, the court reserves decision and will consider any relevance and admissibility issues at the appropriate time.Motion in Limine 14: GRANTS defendant's fourteenth motion in limine, to the extent it seeks to preclude plaintiffs from using the license agreement or other evi dence in the New York or Connecticut Cases to portray Astilean in a sympathetic or positive light. Motion in Limine 15: GRANTS defendant's fifteenth motion in limine. Plaintiffs may not introduce evidence or testimony that contravenes the court's rulings. Ordered by Judge Kiyo A. Matsumoto on 1/9/2020. (Brasky, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SPEEDFIT LLC and AUREL A.
ASTILEAN,
Plaintiffs,
-against-

MEMORANDUM & ORDER
13-CV-1276 (KAM)(AKT)

WOODWAY USA, INC.,
Defendant.
----------------------------------X
MATSUMOTO, United States District Judge:
Plaintiffs Speedfit LLC (“Speedfit”) and Aurel A.
Astilean (“Astilean”) (collectively, “plaintiffs”) commenced the
instant action against Woodway USA, Inc. (“Woodway” or
“defendant”), alleging that Woodway wrongfully infringed upon
United States Patent No. 8,308,619 (the “‘619 Patent”) and
United States Patent No. 8,343,016 (the “‘016 Patent” and
together with the ‘619 Patent, the “Patents-in-suit”), both of
which are owned by Speedfit and relate to a curved, nonmotorized treadmill involving a closed-loop treadmill belt
designed to maintain a concave running surface and taut lower
portion.

(ECF No. 150, Supplemental Complaint (“Supp. Compl.”)

¶¶ 18-21.)
Before the court are defendant’s motions in limine,
served October 4, 2019, to preclude fifteen categories of
evidence from the parties’ impending trial.

(ECF No. 290,

Def.’s Memorandum of Law in Support of its Motions in Limine,
(“Mot.”).)

Plaintiffs served their opposition on October 18,

2019, contesting the majority of defendant’s motions in limine,
(ECF No. 293, Memorandum of Law in Opposition to Defendant’s
Motion in Limine (“Opp.”)), and defendant served its reply on
November 1, 2019.

(ECF No. 297, Defendant’s Reply Memorandum of

Law (“Reply”).
In an earlier order, the court issued a Memorandum and
Order granting in part, and denying in part, the parties’ crossmotions for summary judgment.

(ECF No. 314, Memorandum & Order

Granting in Part and Denying in Part Defendant’s Motion for
Summary Judgment and Denying Plaintiffs’ Motion for Summary
Judgment in its Entirety (“Sum. J. Order”).)

In pertinent part,

the Summary Judgment Order granted defendant’s motion for
summary judgment as to the Supplemental Complaint’s claims for
patent infringement, breach of contract, and constructive trust,
and dismissed those causes of action accordingly.

(Id.)

The

court, however, determined that genuine disputes of material
fact existed with respect to plaintiffs’ unjust enrichment
claim, and denied both parties’ motions for summary judgment on
unjust enrichment.

(Id. 65-72.)

Thus, the court will deem moot

any motions in limine that seek to preclude evidence that is
relevant solely with respect to dismissed claims, i.e. patent
infringement, breach of contract, and constructive trust.
2

Consequently, the court will consider each motion in limine in
turn, and clarify whether the motion is granted, denied, or
considered moot.
BACKGROUND
Plaintiff Speedfit, founded by plaintiff Astilean and
co-inventor Dan Bostan, who is not joined in this action, is a
New York-based company that develops fitness programs and
equipment.

(Supp. Compl. ¶¶ 8-9.)

Defendant Woodway is a

Wisconsin-based corporation that designs, manufactures, and
sells fitness and exercise products, including non-motorized
treadmills with a curved running surface.

(Id. ¶ 10.)

Familiarity with the factual and procedural history of
this matter is assumed, as set forth comprehensively in this
court’s prior orders concerning this litigation.

See Speedfit

LLC, et. al. v. Woodway USA, Inc., 53 F. Supp. 3d 561 (E.D.N.Y.
2014) (denying Woodway’s motion to dismiss and motion to
transfer); Speedfit LLC, et. al. v. Woodway USA, Inc., No. 13CV-1276, 2015 WL 6143697 (E.D.N.Y. Oct. 19, 2015) (granting
leave to file a Third Amended Complaint); Speedfit LLC, et. al.
v. Woodway USA, Inc., 226 F. Supp. 3d 149 (E.D.N.Y. 2016)
(granting in part and denying in part Woodway’s motion to
dismiss Third Amended Complaint); Speedfit LLC, et. al. v.
Woodway USA, Inc., No. 13-CV-1276, 2017 WL 5633113 (E.D.N.Y.
Nov. 20, 2017) (construing claim term “means for slackening”);
3

Speedfit LLC, et. al. v. Woodway USA, Inc., No. 13-CV-1276, ECF
No. 314 (E.D.N.Y. Jan. 9, 2020) (granting and denying in part
defendant’s motion for summary judgment and denying plaintiffs’
cross-motion for summary judgment in its entirety).
As noted above, the Summary Judgment Order dismissed
plaintiffs’ claims, with the exception of plaintiffs’ claim for
unjust enrichment arising under New York State law.

The court

determined that the Patents-in-suit were rendered invalid by
prior art, vitiating plaintiffs’ claim for patent infringement.
(Sum. J. Order 27-41.)

Consequently, the court granted

defendant’s motion for summary judgment with respect to
plaintiffs’ patent infringement claim, which, naturally, also
mandated a denial of plaintiffs’ motion seeking summary judgment
as to patent infringement.

(Id. 51.)

The court also granted defendant’s motion for summary
judgment on two of plaintiffs’ state law claims.

Plaintiffs’

breach of contract claim was deemed waived and abandoned based
on plaintiffs’ admission that the purportedly written
confidentiality agreements did not exist, and the court further
found that any asserted oral agreement necessarily failed for
indefiniteness.

(Id. 59-65.)

Defendant’s motion was granted on

plaintiffs’ claim for constructive trust under New York state
law, based on the lack of evidence of the requisite relationship

4

between plaintiffs and defendant that could have sustained the
constructive trust claim and remedy.

(Id. 72-77.)

The court denied both parties’ motions for summary
judgment with respect to the Supplemental Complaint’s unjust
enrichment claim.

The court first rejected defendant’s

contention that the Statute of Frauds’ one year rule, see N.Y.
Gen. Oblig. Law § 5-701(a)(1), mandated dismissal of plaintiffs’
unjust enrichment claim. (Id. 65-69.)

The court found that

plaintiffs’ unjust enrichment claim did not circumvent the
Statute of Frauds because plaintiffs never had an oral or
written contract with defendant in the first place, and
therefore, the Statute of Frauds was inapplicable ab initio.
(Id.)

The court denied plaintiffs’ motion for summary judgment

as to unjust enrichment liability because the record raised
genuine issues of triable fact and a jury could reasonably find
that Woodway was able to develop and market the accused curved,
non-motorized treadmills without plaintiffs’ contribution.
69-72.)

(Id.

Plaintiffs’ motion for unjust enrichment damages was

consequently denied without prejudice as premature. (Id. 72.)
The court has construed plaintiffs’ theory of unjust
enrichment as follows: Astilean and Speedfit disclosed a wooden
prototype of a curved, non-motorized treadmill (“Wooden
Prototype”) to Woodway’s CEO Doug Bayerlein in 2008; Bayerlein
and his team at Woodway then relied on Astilean’s input and
5

know-how to develop the Speedboard 2; the Speedboard 2
ultimately became the Curve, part of the Woodway Legacy
Treadmill product line; the Curve and other Woodway Legacy
Treadmills, which were developed, at least in part, using
Astilean’s contribution of time, technical knowledge, and
effort, were sold in the market and resulted in profits for
Woodway; Astilean and Speedfit, however, did not receive any
portion of these profits.
Ultimately, what remains of the case boils down to
whether Woodway was enriched at plaintiffs’ expense, a question
of fact that turns principally on how much weight a jury assigns
to Astilean and Speedfit’s contribution, if any, to the
Speedboard 2/Curve model that was introduced at the IHRSA trade
show in 2009; whether that contribution, if any, benefitted
plaintiffs; and whether, and to what extent, it would be unjust
for defendant to retain any benefit conferred by plaintiffs’
contribution.

A jury may determine that Astilean made a

substantial contribution to defendant’s development of the
Woodway Legacy Treadmills, and that equity entitles plaintiffs
to some share of those profits.

On the other hand, a jury could

reasonably infer that Astilean’s contribution to the Speedboard
2/Curve was negligible or non-existent, and that Woodway’s
engineers overcame the critical design hurdle, thus giving the
treadmill its value as a marketable product.
6

Under the latter

view, equity would not require divesting Woodway of any portion
of its profits for the Legacy Treadmills.
With this framework for the parties’ anticipated trial
in place, the court proceeds to consider defendant’s motions in
limine.
DISCUSSION
I.

Legal Standard
A.

Standard on a Motion in Limine
“The purpose of an in limine motion is to aid the

trial process by enabling the Court to rule in advance of trial
on the relevance of certain forecasted evidence, as to issues
that are definitely set for trial, without lengthy argument at,
or interruption of, the trial.”

EEOC v. United Health Programs

of Am., Inc., No. 14-CV-3673 (KAM)(JO), 2017 WL 10088567, at *1
(E.D.N.Y. Sept. 4, 2017) (quoting Palmieri v. Defaria, 88 F.3d
136, 141 (2d Cir. 1996)).

“Evidence should be excluded on a

motion in limine only when the evidence is clearly inadmissible
on all potential grounds.”

United States v. Paredes, 176 F.

Supp. 2d 179, 181 (S.D.N.Y. 2001). Further, a district court’s
ruling on a motion in limine is preliminary and “subject to
change when the case unfolds.”

Luce v. United States, 469 U.S.

38, 41 (1984).

7

B.

Relevant Evidence
Federal Rule of Evidence 402 provides that all

relevant evidence is admissible except as otherwise provided by
the Constitution, by Act of Congress, or by applicable rule.
Fed. R. Evid. 402.

Federal Rule of Evidence 401 defines

relevant evidence as that which “has any tendency to make a fact
more or less probable than it would be without the evidence,” so
long as “the fact is of consequence in determining the action.”
Fed. R. Evid. 401.

The Second Circuit has characterized the

relevance threshold as “very low.”

See United States v. White,

692 F.3d 235, 246 (2d Cir. 2012)(quoting United States v. AlMoayad, 545 F.3d 139, 176 (2d Cir. 2008)).

To be relevant,

evidence need not prove a fact in issue by itself, but need only
have “‘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.’”

McKoy v.

North Carolina, 494 U.S. 433, 440 (1990)(quoting New Jersey v.
T.L.O., 469 U.S. 325, 345 (1985)).
C.

Federal Rule of Evidence 403
Under Federal Rule of Evidence 403, the court “may

exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
8

cumulative evidence.”

Fed. R. Evid. 403.

“District courts have

broad discretion to balance probative value against possible
prejudice.”

United States v. Bermudez, 529 F.3d 158, 161 (2d

Cir. 2008).

“Evidence cannot be excluded under Fed. R. Evid.

403 on the basis that, due to its relevance, such evidence has a
negative impact on a party’s litigation position.”

MBIA Ins.

Corp. v. Patriarch Partners VIII, LLC, No. 09-cv-3255, 2012 WL
2568972, at *11 (S.D.N.Y. July 3, 2012)(citing George v. Celotex
Corp., 914 F.2d 26, 31 (2d Cir. 1990)).
II.

Defendant’s Motions in Limine
A.

Motion in Limine 1
Defendant moves to preclude evidence of Speedfit’s

sales and profit margins to support their unjust enrichment
claim.

(Mot. 1.)

Plaintiffs ask the court to permit them to

present evidence of Speedfit’s margins, presumably in aid of
their unjust enrichment claim.

(Opp. 7.)

As an initial matter, Defendant notes the paucity of
Speedfit’s sales information in the record.

(Mot. 1.)

During

discovery, defendant sought records concerning Speedfit’s
alleged sales, cost, or profit information relating to the
Speedboard.

(See, e.g., ECF No. 291-4, Declaration of Kadie M.

Jelenchick (“Jelenchick Decl.”), Ex. D (Woodway’s First Requests
for Production).)

Defendant claims that plaintiffs produced no

responsive records before the close of fact discovery.
9

(Mot.

1.)

Further, Astilean testified in his March 2015 deposition

that Speedfit was not selling the Speedboard or any curved, nonmotorized treadmills, (ECF No. 291-1, Jelenchick Decl., Ex. A
(Astilean Tr.), 84:10-85:8), and plaintiffs indicated in
discovery responses throughout 2015 that they had yet to
manufacture for sale any curved, non-motorized treadmills.

(See

ECF No. 291-2, 291-3, Jelenchick Decl., Exs. B (Pls.’ Answers to
Def.’s First Set of Int.), C (Pls.’ Supp. Answers to Def.’s
First Set of Int.).)
Plaintiffs do not dispute their failure to produce
evidence of Speedfit’s sales during fact discovery, but refer
the court to the Supplemental Report of their damages expert,
David Wanetick, dated July 13, 2018.
Supp.)

(ECF No. 203-1, Wanetick

The Wanetick Supplement explains that in Wanetick’s

prior report, which did not present a theory of unjust
enrichment damages based on Speedfit’s lost profits and margins,
(see generally ECF No. 218-1, Wanetick Rept.), he had not
received sales or cost summaries from Speedfit.
1.)

(Wanetick Supp.

Wanetick stated that he had “now received and reviewed

production and sales figures of Speedfit which are derived from
the purchase and sales of Speedfit during the pendency of the
lawsuit . . . .”

(Id.)

This information, Wanetick explained,

“provide[d] a much more vivid picture of the damages Speedfit
incurred as a result of Woodway’s breach of contract, unjust
10

enrichment, conversion and constructive trust” claims.

(Id.)

Schedule 2 of the Wanetick Supplement purported to be a chart of
“Speedfit’s Sales of the Speedfit Curve (2015 – April 30,
2018).”

(Id. 5-8.)
In a Decision and Order, dated March 28, 2019,

Magistrate Judge Tomlinson precluded plaintiffs’ use of and
reliance on the Wanetick Supplement insofar as it concerned “new
theories of damages concerning the Plaintiffs’ state law
claims.”

(ECF No. 239, Wanetick Supp. Order, 17.)1

In Judge

Tomlinson’s thorough review of the case’s procedural history,
she noted that expert and fact discovery had closed in April
2015, that plaintiffs had acknowledged the end date for
discovery, and that plaintiffs had limited their request for
additional discovery to seeking Woodway’s additional sales
information since the time that fact and expert discovery had
closed.

(Id. 9-14.)

Judge Tomlinson’s examination of the

docket led her to conclude that even though updates to the
expert reports on damages issues were permissible “solely for
the purpose of reflecting sales of products sold since the
original expert reports were served,” it was also “made plain to
Plaintiffs by the Court . . . that this was not an opportunity

Judge Tomlinson did not preclude testimony based on the Wanetick
Supplement that merely updated plaintiffs’ previous damages theories with
calculations based on additional sales during the pendency of the litigation.
(Id.)
1

11

to amend or add any new theory of damages with respect to the
state law claims.”

(Id. 14-15.)

To the extent plaintiffs ask

the court to ignore, modify, or alter Judge Tomlinson’s order,
that request is untimely and, in any event, is denied on the
merits.
In addition, plaintiffs’ revised initial disclosures,
served October 3, 2019,2 have identified Mark Verstegen as having
“Speedfit financial information relating to Speedfit’s sales.”
(ECF No. 291-5, Jelenchick Decl., Ex. E, 10.)

This disclosure,

however, was made over four years after the close of fact
discovery in April 2015.

Pursuant to Rule 26(e), a party is

obligated to timely supplement or correct its initial Rule 26
disclosures, and its responses to interrogatories and document
demands, “if the additional or corrective information has not
otherwise been made known to the other parties during the
discovery process or in writing.”

Fed. R. Civ. P. 26(e)(1)(A).

The tardy disclosure of Verstegen warrants preclusion
of his testimony at trial under Rule 37 of the Federal Rules of
Civil Procedure.

Rule 37(c) states that “[i]f a party fails to

provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information
or witness to supply evidence on a motion, at a hearing or at
The certificate of service appended to plaintiff’s revised initial
disclosures states the disclosures were served on October 3, 2017, but this
appears to be an error. Elsewhere, the document is dated 2019.
2

12

trial, unless the failure was substantially justified or is
harmless.”

Fed. R. Civ. P. 37(c)(1).

“Substantial

justification may be demonstrated where there is justification
to a degree that could satisfy a reasonable person that parties
could differ as to whether the party was required to comply with
the disclosure request or if there exists a genuine dispute
concerning compliance.”

Lujan v. Cabana Mgmt., Inc., 284 F.R.D.

50, 68 (E.D.N.Y. 2012) (quoting Ritchie Risk–Linked Strategies
Trading (Ireland), Ltd. v. Coventry First LLC, 280 F.R.D. 147,
159 (S.D.N.Y. Feb. 15, 2012)).
An omission or delay in disclosure is harmless where
there is “an absence of prejudice” to the offended party.

Id.

“In determining whether to exercise its discretion to preclude
evidence under Rule 37, courts examine (1) the party's
explanation for the failure to comply with the discovery rules;
(2) the importance of the precluded evidence; (3) the prejudice
suffered by the opposing party as a result of having to prepare
to address the new evidence; and (4) the possibility of a
continuance.”

Id.; see also Patterson v. Balsamico, 440 F.3d

104, 117 (2d Cir. 2006) (citing Softel, Inc. v. Dragon Med. &
Scientific Comm'ns, Inc., 118 F.3d 955, 961 (2d Cir.
1997)); Gotlin v. Lederman, No. 04–CV–3736 (ILG)(RLM), 2009 WL
2843380, at *3 (E.D.N.Y. Sept. 1, 2009).

Here, plaintiff has

provided absolutely no explanation for its delinquent disclosure
13

of Verstegen as a potential witness, and allowing Verstegen to
testify at trial, without an opportunity for defendant to depose
him, would be highly prejudicial.
More fundamentally, information concerning Speedfit’s
sales and profit margin, whether based on the testimony of
Wanetick, Verstegen, or Astilean himself, is irrelevant to
plaintiffs’ claim for unjust enrichment.

“To prevail on a claim

for unjust enrichment in New York, a plaintiff must establish
(1) that the defendant benefitted; (2) at the plaintiff's
expense; and (3) that equity and good conscience require
restitution.”

Kaye v. Grossman, 202 F.3d 611, 616 (2d Cir.

2000) (internal quotation marks and citation omitted).

“Because

the doctrine of unjust enrichment is grounded in restitution,
the measure of damages for an unjust enrichment claim is based
on the amount of benefit retained by the defendant, rather than
by a plaintiff’s loss.”

Swan Media Grp., Inc. v. Staub, 841 F.

Supp. 2d 804, 809–10 (S.D.N.Y. 2012); see also 3 D. Dobbs, Law
of Remedies § 12.1(1), at 9 (“Restitutionary recoveries are
based on the defendant's gain, not on the plaintiff's
loss.”); Giordano v. Thomson, 564 F.3d 163, 170 (2d Cir. 2009)
(“Recovery on such a claim [of unjust enrichment] is limited to
the reasonable value of the services rendered by the
plaintiff.”) (citations and internal quotation marks omitted).

14

Plaintiffs state that “[f]or the real profit margin
and calculation of unjust enrichment to Woodway, Plaintiffs will
use EBITDA and Alex[ Astilean]’s testimony of what his cost of
goods is based upon his own sale of the Speedfit Speedboard.”
(Opp. 10.)

Plaintiffs intend to then “ask the jury to apply

[Speedfit’s] margin or profit to Woodway’s gross sales and ask
for a money judgment in this amount.”

(Id.)

But plaintiffs do

not articulate in the least how Speedfit’s profits are relevant
to Woodway’s profits, or to damages for unjust enrichment
generally.

Nor do plaintiffs provide any authority for their

proposed methodology of calculating unjust enrichment damages,
or name any expert witness competent to advocate such method.
Plaintiffs have also not provided any framework to compare
Speedfit’s Speedboard with Woodway’s Legacy Treadmills, or
otherwise demonstrate what application Speedfit’s alleged
profits could possibly have to Woodway’s profits, given the
different operating capacities and circumstances of both
companies.

(See Reply 3.)

The court also notes the significant

risk, assuming a finding of liability, that the jury could
conflate Speedfit’s sales and profits with gains accrued by
Woodway, and erroneously use the resulting figures as a measure
for unjust enrichment damages.

Under these circumstances, the

danger of unfair prejudice to defendant substantially outweighs
whatever probative value evidence of Speedfit’s sales and
15

margins might have.

Preclusion under FRE 403 is therefore

warranted.
Defendant’s first motion in limine is GRANTED.
B.

Motion in Limine 2
Defendant seeks to preclude Astilean from testifying

regarding patent infringement and damages.

(Mot. 4-6.)

As

discussed above, the court granted defendant’s motion for
summary judgment with respect to plaintiffs’ claim for patent
infringement and dismissed that cause of action.

Accordingly,

this motion is MOOT insofar as it concerns patent infringement.
With respect to damages, defendant argues that damages
are routinely handled by expert witnesses, and that Astilean has
only been disclosed as a lay witness.

(Mot. 4.)

Plaintiffs

concede that their unjust enrichment theory of damages does not
require Astilean to testify to Woodway’s sales, (Opp. 11), and
to the extent plaintiffs plan to have Astilean testify to
Speedfit’s sales, such testimony is precluded by the grant of
defendant’s first motion in limine.
Defendant’s second motion in limine, to the extent not
MOOT, is GRANTED.
C.

Motion in Limine 3
Defendant moves to preclude plaintiffs from either

seeking testimony or introducing evidence relating to Woodway’s
total sales and profits.

On September 24, 2019, plaintiffs sent
16

defendant a letter requesting data on Woodway’s total revenue
from 2009 to the present.

(Mot. 6-9.)

According to defendant,

plaintiffs are seeking to substantiate “an unidentified D&B
[Dunn & Bradstreet] report relating to Woodway’s overall
revenue.”

(Id. 6.)

Defendant notes that Woodway manufactures

and sells a range of products, not just the curved, nonmotorized treadmills at issue in this case, and that presenting
evidence of Woodway’s total sales could lead a jury to determine
plaintiffs are entitled to some portion of Woodway’s total
revenue without proper allocation for the accused products.
(Id.)

Plaintiffs respond that Woodway’s total sales are

relevant to their constructive trust damages argument, in which
plaintiffs seek entitlement to an equity stake in Woodway.
(Opp. 4.)
Plaintiffs’ constructive trust claim was dismissed on
summary judgment, and therefore, defendant’s third motion in
limine is MOOT as it relates to imposition of a constructive
trust.

The court otherwise DENIES defendant’s motion.

The

court will not preclude plaintiffs from presenting evidence of
Woodway’s sales, provided the sales evidence only includes data
relating to the curved, non-motorized treadmills.

Instead, the

court will instruct the jury to disregard any sales information
that does not relate to Woodway’s profits and gains relating to
the curved, non-motorized treadmills at issue.
17

If plaintiffs

present evidence of Woodway’s sales at trial, plaintiff shall
endeavor to clarify for the jury the connection between the
proffered sales information and the accused products.
Defendant, of course, may cross-examine plaintiffs’ witnesses,
and present the testimony of its own witnesses, in order to
facilitate the jury’s ability to disregard Woodway sales
information that is not derived from the relevant products.
D.

Motion in Limine 4
Defendant moves to preclude plaintiffs from presenting

aggregations of Woodway’s sales information that are derived
from plaintiffs’ miscalculations.

(Mot. 9-10.)

For example,

plaintiffs’ unjust enrichment demand of $71,568,217, appears
based on a document that was originally produced by plaintiffs
as Schedule 1 of the Wanetick Supplement, (Wanetick Supp. 3-4),
and recently submitted, with revised sales figures, as Exhibit
PL31 in connection with plaintiff’s summary judgment motion.
(ECF No. 268-42, Declaration of John Vodopia in Support of
Plaintiffs’ Motion for Summary Judgment (“Vodopia Decl.”), Ex.
PL31.)

Page one of Exhibit PL31 displays a figure of

$43,607,551, corresponding to purported infringement damages for
“2008-April 30, 2018;” page two displays a figure of
$27,960,666, corresponding to “FY 2015-2019.”

(Id.; see ECF No.

283, Joint Local Rule 56.1 Statement of Facts, Woodway Statement
of Fact (“WW SOF”), ¶ 124 (unrebutted).)
18

Plaintiffs’ unjust

enrichment demand equals the sum of these two figures.
Defendant asserts that this is an error which double counts
damages for the years 2015-2018, and thus risks presenting an
inflated damages sum to the jury.

(Mot. 9.)

Plaintiffs’

response is limited to a single footnote in their opposition.
According to plaintiffs, defendant’s motion is designed to
preclude plaintiffs’ interpretation of the evidence, an improper
basis for a motion in limine, and that plaintiffs’
interpretation may be properly challenged by cross-examination
and rebuttal evidence.

(Opp. 9 n.6.)

Plaintiffs’ wholesale failure to address the potential
calculation errors raised by defendant give the court pause.
Defendant’s motion, however, raises a conflict in the evidence
regarding the calculation issue, and the court is inclined not
to preclude evidence of plaintiffs’ asserted damages for unjust
enrichment, at least at this juncture.

The court is confident

that a jury can readily discern the potential errors defendants
have highlighted and weigh the credibility of defendant’s
evidence and testimony against plaintiffs’ evidence and
testimony.
The defendant’s motion does not point the court to any
facially invalid evidence on which plaintiffs’ damages
calculations rely, but rather, appears to question plaintiffs’
interpretation of that evidence.
19

Accordingly, the court DENIES

defendant’s fourth motion in limine.

The court encourages

plaintiffs to carefully scrutinize the propriety of their
damages calculations before trial.3
Defendant’s fourth motion in limine is DENIED.
E.

Motion in Limine 5
Defendant moves to preclude plaintiffs from making ad

hominem attacks at trial.

Plaintiffs have characterized

Woodway’s actions in this case as “theft,” “fraud,” a “blatant
fabrication to the U.S. Patent Office,” and has described
Woodway’s personnel as a “band of thieves.”

(Mot. 10 (citing

ECF No. 268-1, Pls.’ Mot. Sum. J., 13, 15-17; ECF No. 278, Pls.’
Sum. J. Reply, 3).)

Plaintiffs’ response, in the main, is to

insist that defendant fraudulently omitted to the Patent Office
that Astilean was the “actual inventor” of the curved, nonmotorized treadmill when Woodway filed its patent, and
therefore, plaintiffs’ labels and characterizations are
justified.

(Opp. 14-15.)

As an initial matter, Woodway’s

patents are not at issue in this litigation.

(ECF No. 152, Jt.

Ltr., 2 (“Plaintiff Speedfit filed a separate lawsuit in this
District to correct [] inventorship as to a subset of Woodway
USA’s patents.”).)

The court is also unaware of any enforcement

actions or investigations of any kind by the Patent and

Nothing in the foregoing should be construed as authorizing additional
submissions or discovery.
3

20

Trademark Office based on allegations that defendant committed a
fraud before the Patent Office.

In any event, plaintiffs’

arguments are wholly conclusory, and attempt to transform a bona
fide dispute about whether Astilean’s treadmill design
constituted prior art by levying bald assertions of fraudulent
intent.

This attempt is unsupported by evidence and unavailing

for that reason alone.
Moreover, neither fraud nor theft is an element of
plaintiffs’ sole surviving unjust enrichment claim.

Aspersions

of fraudulent conduct or theft are not potentially probative of
any fact of consequence at trial.

“[C]ourts often prohibit the

use of certain ‘pejorative terms when such categorizations were
inflammatory and unnecessary to prove a claim’ and such
statements ‘do not bear on the issues being tried.’”

MF Glob.

Holdings Ltd. v. PricewaterhouseCoopers LLP, 232 F. Supp. 3d
558, 570 (S.D.N.Y. 2017) (quoting Aristocrat Leisure Ltd. v.
Deutsche Bank Tr. Co. Ams., No. 04-CV-10014, 2009 WL 3111766, at
*7 (S.D.N.Y. Sept. 28, 2009)).

So too here.

This action does

not sound in or allege fraud, and the use of labels suggesting
otherwise is irrelevant and carries a risk of unfair prejudice
to defendant that substantially outweighs the probative value,
if any, of the ad hominem remarks.

See Fed. R. Evid. 403.

Plaintiffs’ fifth motion in limine is GRANTED.

21

F.

Motion in Limine 6
Defendant moves to preclude plaintiffs from arguing

they are entitled to punitive damages.

(Mot. 11-13.)

New York

law sets forth a four-prong test to state a claim for punitive
damages: “(1) defendant's conduct must be actionable as an
independent tort; (2) the tortious conduct must be of the
egregious nature set forth in [Walker v. Sheldon, 10 N.Y.2d 401
(1961)];4 (3) the egregious conduct must be directed to [the]
plaintiff; and (4) it must be part of a pattern directed at the
public generally . . . .”

New York Univ. v. Cont'l Ins. Co., 87

N.Y.2d 308, 316 (1995); accord TVT Records v. Island Def Jam
Music Grp., 412 F.3d 82, 94 (2d Cir. 2005) (“This rule has not
been changed by the Court of Appeals, and we have no reason to
question its continued vitality.”).

“New York courts have

struck punitive damages claims based on quasi-contract claims
because those claims do not constitute independent torts.”
Legurnic v. Ciccone, 63 F. Supp. 3d 241, 250 (E.D.N.Y. 2014)
(collecting cases) (internal quotation marks omitted).
Plaintiffs’ Supplemental Complaint did not plead the
existence of a separate actionable tort, and their opposition
memorandum of law still fails to identify any such tort.

In Walker, the New York Court of Appeals held “there may be a recovery
of exemplary damages in fraud and deceit actions where the fraud, aimed at
the public generally, is gross and involves high moral culpability.” 10
N.Y.2d at 405.
4

22

Plaintiffs’ omission precludes punitive damages.

Reading

plaintiffs’ opposition charitably, plaintiffs vaguely allude to
a tort by claiming that defendant and defendant’s counsel
“committed fraud and morally culpable conduct when they breached
their obligations under 37 C.F.R. § 1.56 . . . .”

(Opp. 18.)

Leaving aside plaintiffs’ conclusory labels, this regulation
imposes on patent applicants a duty of candor and good faith in
dealing with the Patent Office, which includes a duty to
disclose information material to the patentability of any claim.
37 C.F.R. § 1.56(a).

Plaintiffs claim defendant ran afoul of

this regulation by failing to notify the Patent Office of
Astilean’s purported prior art.

(See Opp. 18.)

First, it must be reiterated that Woodway’s patents
and dealings with the Patent Office are not at issue in this
case.

Second, plaintiffs have neither asserted nor cited any

principle of law that supports a private right of action or tort
liability for violations of 37 C.F.R. § 1.56(a).

Third,

plaintiffs’ bald assertions of fraud and “morally culpable
conduct” are not evidence of a tort.

In sum, plaintiffs’

arguments are unavailing, and under New York law, plaintiffs
cannot be awarded punitive damages on their unjust enrichment
claim.

As a result, references to punitive damages are not

relevant at trial, and could imply fraudulent or tortious

23

conduct, which would be prejudicial to defendant and risk
confusing the jury.

Fed. R. Evid. 401, 403.

Defendant’s sixth motion in limine is GRANTED.
G.

Motion in Limine 7
Defendant moves to preclude evidence relating to any

alleged patent damages before June 1, 2015.

(Mot. 13.)

Plaintiffs do not oppose, and the court grants the motion,
however, the court’s dismissal of plaintiffs’ patent
infringement claim renders defendant’s seventh motion in limine
MOOT.
H.

Motion in Limine 8
Defendant moves to preclude arguments and testimony

that the Patent Office made a priority determination with
respect to the Patents-in-suit.

(Mot. 13-15.)

The court

rejected plaintiffs’ argument that the Patent Office implicitly
determined the Patents-in-suit were entitled to the filing date
of the ‘265 Provisional Application by granting the patents
themselves.

(Sum. J. Order 42-44.)

Regardless, the dismissal

of plaintiffs’ patent infringement claim likewise renders
defendant’s eighth motion in limine MOOT.
I.

Motion in Limine 9
Defendant moves to preclude evidence relating to the

doctrine of equivalents theory that might be used to support
plaintiffs’ infringement claim.

(Mot. 15-17.)
24

As with the

other motions concerning evidence that solely relates to
dismissed claims, defendant’s ninth motion in limine is deemed
MOOT.
J.

Motion in Limine 10
Defendant moves to preclude plaintiff from arguing or

introducing evidence relating to an unpled claim for trade
secret misappropriation.5

(Mot. 17-19.)

On September 4, 2019,

plaintiffs’ counsel sent an email to counsel for defendant
advising of their intention to make a motion pursuant to Federal
Rule of Civil Procedure 15 to add a claim for misappropriation
of trade secrets.

(ECF No. 291-13, Jelenchick Decl., Ex. M.)

Defendant asserts that this theory is not supported by the
pleadings or discovery, and that raising a claim for
misappropriation of trade secrets at this late stage would be
unfairly prejudicial to defendant.

(Mot. 18.)

Plaintiffs

acknowledge their intention to make a Rule 15 motion during or
after trial to assert “a claim of misappropriation of trade
secrets, fraud and any other claim that may derive from the
proof . . . .”

(Opp. 19.)6

Defendant also moves to preclude plaintiffs from arguing that their
breach of contract claim is based on an implied-in-fact contract. (Mot. 17.)
Since the breach of contract claim has been dismissed, this aspect of the
motion is granted as moot.
5

Under New York law, to state a claim for misappropriate of a trade
secret, plaintiffs must plead “(1) [they] possessed a trade secret, and (2)
defendant is using that trade secret in breach of an agreement, confidence,
or duty, or as a result of discovery by improper means.” Uni-Sys., LLC v.
United States Tennis Ass'n, Inc., 350 F. Supp. 3d 143, 171 (E.D.N.Y. 2018)
6

25

Federal Rule of Civil Procedure 15(b)(1) provides:
If, at trial, a party objects that evidence is not
within the issues raised in the pleadings, the court
may permit the pleadings to be amended. The court
should freely permit an amendment when doing so will
aid in presenting the merits and the objecting party
fails to satisfy the court that the evidence would
prejudice that party's action or defense on the
merits. The court may grant a continuance to enable
the objecting party to meet the evidence.
Fed. R. Civ. P. 15(b)(1).

“In opposing a Rule 15(b) amendment,

‘a party cannot normally show that it suffered prejudice simply
because of a change in its opponent's legal theory.

Instead, a

party’s failure to plead an issue it later presented must have
disadvantaged its opponent in presenting its case.”

See Cruz v.

Coach Stores, Inc., 202 F.3d 560, 569 (2d Cir. 2000) (quoting
N.Y. State Elec. & Gas Corp. v. Sec. of Labor, 88 F.3d 98, 104
(2d Cir. 1996)); see also 6A Charles Alan Wright & Arthur R.
Miller el al., Federal Practice and Procedure § 1495 (3d ed.
updated 2014) (“To justify the exclusion of the evidence, the
rule contemplates that the objecting party must be put to some
serious disadvantage; it is not enough that the party advances
an imagined grievance or seeks to protect some tactical
advantage.”).
Plaintiffs are correct that a motion in limine may not
vitiate their right to move for an amendment pursuant to Rule
(quoting Integrated Cash Mgmt. Servs., Inc. v. Digital Transactions, Inc.,
920 F.2d 171, 173 (2d Cir. 1990)). The court will not comment on the
viability of this cause of action based on the record.

26

15(b)(1) to conform to the evidence presented at trial, subject,
of course, to Rule 11 of the Federal Rules of Civil Procedure.
The cases defendant cites as authority for a contrary outcome
are distinguishable or inapposite or both.7

(See Mot. 18.)

Plaintiffs are reminded, however, that absent the court granting
a motion to amend, the court will preclude at trial any evidence
that is relevant only with respect to unpled claims or defenses.
In addition, defendant is concerned that plaintiffs’ revised
initial disclosures, served October 22, 2019, identified twelve
additional potential witnesses that may be offered for “any
other claim that may derive from the proof.”

(Reply 9 (citing

Opp. 19); see also ECF No. 298-1, Jelenchick Supp. Decl., Ex. Q
(Plaintiffs’ Revised Initial Disclosures).)

Plaintiffs should

For example, in Heidelberg Harris, Inc. v. Mitsubishi Heavy Indus.,
Ltd., the court granted plaintiff’s motion in limine precluding defendant’s
motion to amend their answer to the complaint, but the court only arrived at
that result after finding the amendment was futile. See No. 95 C 0673, 1996
WL 680243, at *3-6 (N.D. Ill. Nov. 21, 1996). Woodway has not argued or
demonstrated that a claim for trade secret misappropriation would be futile.
In Powell v. Storz Opthalmics, Inc., the court granted summary judgment for
defendant and dismissed plaintiff’s infringement claim based on a theory of
literal infringement. No. 93-1204-CIV-T-21C, 1995 WL 420822, at *5 (M.D.
Fla. June 6, 1994), aff'd sub nom. Powell v. Storz Ophthalmics, Inc., 53 F.3d
347 (Fed. Cir. 1995). In so doing, the court declined to consider evidence
submitted by plaintiff that was potentially relevant to a doctrine of
equivalents theory of infringement, but not literal infringement, because
plaintiff had stated in discovery responses that he was only asserting
literal infringement, and never supplemented his responses until after
defendant filed its summary judgment motion. Id. at *4-5. Powell did not
concern a motion in limine or motion to amend pursuant to Rule 15(b)(1), and
nothing the court said could be construed to suggest plaintiff was precluded
from amending his pleading to assert a new cause of action based on the
evidence on record. Nor do the other authorities cited by defendant reach
such a conclusion.
7

27

be aware that, even if the court grants an amendment pursuant to
Rule 15(b)(1), the court cannot fathom any circumstance that
would warrant additional discovery or the late introduction of
witnesses or evidence.

In light of the advanced stage of the

proceedings, including the close of discovery four years ago,
and the resolution of the parties’ Daubert, Markman, summary
judgment motions, and these motions in limine, plaintiffs almost
certainly will not be able to demonstrate “good cause” to reopen
discovery pursuant to Rule 16(b) of the Federal Rules of Civil
Procedure.
Defendant’s tenth motion in limine is GRANTED, but
shall not be construed as precluding plaintiffs from seeking
leave to amend the Supplemental Complaint pursuant to Rule
15(b)(1) of the Federal Rules of Civil Procedure.
K.

Motion in Limine 11
Defendant moves to preclude testimony or evidence

regarding subsequent remedial measures, specifically, “evidence
or argument that Woodway’s decision to remove the ‘means for
slackening’ or synchronizing system from the Legacy Manual
Treadmills is evidence that Woodway has conceded infringement or
that its conduct supports a willfulness finding.”

(Mot. 19.)

Plaintiffs agree not to present such evidence for the purpose of
showing that changes to the Legacy Treadmills reflects an

28

attempt by defendant to “avoid a finding of intentional
infringement . . . .”

(Opp. 24.)

Since this motion appears to be related exclusively to
plaintiffs’ dismissed patent infringement claim, it is MOOT.

To

the extent plaintiffs intend to introduce evidence of subsequent
remedial measures to prove their unjust enrichment claim, the
court reserves decision and will evaluate the admissibility of
such evidence, including under Federal Rule of Evidence 407, at
trial.
L.

Motion in Limine 12
Defendant moves to preclude evidence or testimony that

plaintiffs may offer relating to the parties’ parallel
litigation in this district, Speedfit LLC v. Woodway USA, Inc.,
No. 2:17-cv-00768 (“Speedfit II”).

In that case, Speedfit is

challenging the inventorship of certain Woodway patents relating
to curved, non-motorized treadmills.

(Speedfit II, ECF No. 1.)

Defendant’s motion evinces concern that plaintiffs may use
evidence from Speedfit II to create doubt over the inventorship
of Woodway’s patents.

(Mot. 21.)

Plaintiffs’ opposition

appears to have allayed defendant’s concern, however, and
defendant has WITHDRAWN its twelfth motion in limine.

(Opp. 26

(“Plaintiffs stipulate hereby they will not use or attempt to
use any evidence from [Speedfit II] at the upcoming trial on its
instant claims to prove ownership of, attempt to prove ownership
29

of or otherwise cloud ownership of Woodway’s own patents . . .
.”); Reply 10 (“In view of Plaintiffs’ stipulation that they
will not use any evidence from Speedfit II ‘to attempt to prove
ownership of or otherwise cloud ownership of Woodway’s own
patents,’ . . . Woodway withdraws this Motion.”).8
The court accordingly declines to consider defendant’s
twelfth motion in limine, which is WITHDRAWN.
M.

Motion in Limine 13
Defendant seeks to preclude any introduction or

testimony about two unexecuted non-disclosure agreements, dated
2003 and 2005.

(Mot. 23.)

The Supplemental Complaint alleged

that defendant had breached two written non-disclosure
agreements, but plaintiffs admitted in their memorandum in
opposition to summary judgment that the “[n]on-disclosure
agreement(s) are not in evidence and not part of this case.”
(WW SOF ¶¶ 72, 73; Pls.’ Resp. WW SOF ¶¶ 72, 73.)

The court

dismissed plaintiffs’ breach of contract claim as waived and
abandoned, and also on the grounds that any asserted oral
agreement was unenforceable.

(Sum. J. Order 59-64.)

Plaintiffs aver that evidence from Speedfit II may be used to establish
other claims, including unjust enrichment. Plaintiffs believe the following
facts overlap and are probative in both cases: “facts concerning the
development of the SpeedFit Speedboard, email communications, testimony of
Alex [Astilean], [Douglas] Bayerlein, [Eric] Weber and [Dr. Kim] Blair on how
the inventive treadmill was developed before and after it was brought to
defendant, evidence such as the wooden prototype, the videos, the photographs
and dates thereof, engineering drawings, etc. . . .” (Opp. 25.)
8

30

Plaintiffs, however, intend to have Astilean testify
that he forwarded the documents to Bayerlein, and will introduce
the unexecuted 2003 and 2005 agreements to establish Astilean’s
“aware[ness] of the confidential nature of the parties’
relationship.”

(Opp. 20.)

Plaintiffs made no such argument in

their memorandum in opposition to summary judgment, and whatever
probative value Astilean’s testimony might have had is
irrelevant now that plaintiffs’ constructive trust claim is
dismissed pursuant to the court’s summary judgment order.

(See

Sum. J. Order 72-77.)
The court, therefore, deems defendant’s thirteenth
motion in limine MOOT, insofar as it relates to dismissed
claims.

For clarity, any attempt by plaintiffs to introduce the

unexecuted non-disclosure agreements to establish a contractual,
confidential, or fiduciary relationship will be precluded.

If

plaintiffs seek to introduce the unexecuted agreements with
respect to their unjust enrichment claim, the court will
consider any relevance and admissibility issues raised thereby
at trial.
N.

Motion in Limine 14
Defendant moves to preclude evidence or testimony

regarding two separate suits involving Chapco, Inc. (“Chapco”)
and Samsara Fitness, LLC (“Samsara”).

The first case is a suit

by Speedfit in this District alleging breach of contract and
31

patent infringement.

See Speedfit LLC v. Chapco, Inc., 2:15-cv-

01323-PKC-RLM (E.D.N.Y.) (“New York Case”).

The second involves

Chapco and Samsara’s declaratory judgment suit against Woodway
seeking to invalidate patent infringement claims.

Chapco, Inc.

v. Woodway USA, Inc., 282 F. Supp. 3d 472, 476 (D. Conn. 2017)
(“Connecticut Case”).

Defendant objects to plaintiffs using

evidence of a licensing agreement between Woodway and
Chapco/Samsara in the Connecticut case to establish a reasonable
royalty rate for plaintiffs’ patent infringement damages claim.
(Mot. 24; Opp. 28-29.)

Given the dismissal of plaintiffs’

infringement claim, this aspect of the motion is MOOT.
Defendant also seeks to preclude plaintiffs from
offering evidence from the New York Case to portray Astilean in
a sympathetic light.

(Mot. 24.)

Plaintiffs stipulate not to

use the license agreement to portray Astilean in a sympathetic
light, though it is not clear if plaintiffs likewise stipulate
not to use evidence from the New York and Connecticut Cases,
generally, in such a manner.

(See Opp. 28-29.)

The court is

highly skeptical whether any evidence from the Connecticut and
New York Cases would be relevant to any claim or defense in this
action, including for the purpose of portraying Astilean
sympathetically.

Consequently, the court GRANTS defendant’s

fourteenth motion in limine.

32

O.

Motion in Limine 15
Defendant moves to preclude plaintiffs from offering

expert testimony at trial that was not timely submitted, not set
forth in expert reports, or otherwise stricken pursuant to the
orders by the undersigned or Judge Tomlinson.
239, 240, 241.)

(See ECF Nos.

Though plaintiffs frame their response as a

rebuttal, they appear to be in fundamental agreement with
defendant.

(Opp. 29-30.)

In any event, the court’s orders

speak for themselves and the parties are expected to be fully
familiar and compliant with them.

If either party attempts to

introduce evidence or testimony that contravenes the court’s
rulings, such evidence will be precluded.
Accordingly, defendant’s fifteenth motion in limine is
GRANTED to the extent it seeks to preclude expert testimony that
was previously stricken by the court.
CONCLUSION
For the reasons set forth above, the court:
•

Motion in Limine 1:GRANTS defendant’s first motion
in limine. Plaintiffs may not put evidence of or
testimony concerning Speedfit’s sales and profit
margins before the jury in support of their unjust
enrichment claim, including as a theory of damages.

•

Motion in Limine 2: GRANTS defendant’s second motion
in limine to the extent plaintiffs intend to have
Astilean testify regarding Speedfit’s sales.
Defendant’s motion is otherwise MOOT.
33

•

Motion in Limine 3: DENIES defendant’s third motion
in limine. Plaintiffs may introduce evidence of
Woodway’s sales and profits as it relates to
plaintiffs’ unjust enrichment claim. Any risk of
confusing the jury will be mitigated by a jury
instruction clarifying the scope of permissible
damages for unjust enrichment liability.

•

Motion in Limine 4: DENIES defendant’s fourth motion
in limine as to plaintiffs’ damages calculations.

•

Motion in Limine 5: GRANTS defendant’s fifth motion
in limine. Plaintiffs are precluded from directing
ad hominem remarks toward defendant at trial.

•

Motion in Limine 6: GRANTS defendant’s sixth motion
in limine. Plaintiffs are precluded from asserting
entitlement to punitive damages.

•

Motion in Limine 7: Finds that defendant’s seventh
motion in limine is MOOT.

•

Motion in Limine 8: Finds that defendant’s eighth
motion in limine is MOOT.

•

Motion in Limine 9: Finds that defendant’s ninth
motion in limine is MOOT.

•

Motion in Limine 10: GRANTS defendant’s tenth motion
in limine. Plaintiffs are precluded from
introducing evidence relating to trade secret
misappropriation or any other unpled claim.
However, the court’s order granting defendant’s
tenth motion in limine shall not be construed as
barring plaintiff from moving for leave to amend the
Supplemental Complaint pursuant to the Federal Rules
of Civil Procedure.

•

Motion in Limine 11: Finds that defendant’s eleventh
motion in limine is largely MOOT. To the extent
34

plaintiffs intend to introduce evidence of
subsequent remedial measures to prove their unjust
enrichment claim, the court reserves decision and
will evaluate the admissibility of such evidence at
trial.
•

Motion in Limine 12: Declines to consider
defendant’s motion in limine because it is
WITHDRAWN.

•

Motion in Limine 13: Finds that defendant’s
thirteenth motion in limine is largely MOOT. To the
extent plaintiffs plan to introduce the unexecuted
confidentiality agreements at trial, the court
reserves decision and will consider any relevance
and admissibility issues at the appropriate time.

•

Motion in Limine 14: GRANTS defendant’s fourteenth
motion in limine, to the extent it seeks to preclude
plaintiffs from using the license agreement or other
evidence in the New York or Connecticut Cases to
portray Astilean in a sympathetic or positive light.

•

Motion in Limine 15: GRANTS defendant’s fifteenth
motion in limine. Plaintiffs may not introduce
evidence or testimony that contravenes the court’s
rulings.

SO ORDERED.
Dated: Brooklyn, New York
January 9, 2020
________ /s/__________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

35