Hornady Manufacturing v. Double Tap Ammunition
Filing
261
MEMORANDUM DECISION AND ORDER denying 150 Motion in Limine. Signed by Judge Ted Stewart on 4/15/13. (ss)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
HORNADY MANUFACTURING
COMPANY, a Nebraska Corporation,
Plaintiff,
MEMORANDUM DECISION AND
ORDER DENYING WITHOUT
PREJUDICE DEFENDANT’S
SECOND MOTION IN LIMINE
vs.
DOUBLETAP AMMUNITION, INC., a Utah
Corporation,
Case No. 2:11-CV-18 TS
Defendant.
This matter is before the Court on Defendant’s Second Motion in Limine.1 Defendant
moves the Court in limine to preclude Plaintiff from referencing or otherwise relying on any
evidence of Plaintiff’s “TAP Mark Family” at trial.
Defendant cites as grounds for its requested relief Federal Rules of Evidence 402 and
403.
Federal Rule of Evidence 401 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 or less probable than it would be without the
1
Docket No. 150.
1
evidence. Federal Rule of Evidence 402 bars the introduction of any evidence that
is not relevant.2
Rule 403 excludes otherwise relevant evidence
if its probative value is substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
Defendant first argues that evidence of Plaintiff’s TAP Mark Family is irrelevant because
it has no bearing on the existence or infringement of Plaintiff’s TAP mark—U.S. TM Reg. No.
2,259,161 (the “TAP mark”). The Court is not persuaded. “The bar for admission under Rule
401 is very low. This is because the degree of materiality and probativity necessary for evidence
to be relevant is minimal and must only provide a fact-finder with a basis for making some
inference, or chain of inferences.”3 Here, for example, evidence of the TAP Mark Family could
provide the fact-finder with evidence to support an inference that a consumer in the marketplace
would be confused as to what entity produces “Doubletap” products.
Next, Defendant argues that the Tap Mark Family’s probative value is substantially
outweighed by a danger of unfair prejudice. Defendant argues that evidence of any other
registered or unregistered TAP marks would only serve to mislead the jury from the central issue
of whether the TAP mark has been infringed and that the introduction of other marks into
evidence would also result in a waste of judicial time and resources. While some prejudice is
2
Koch v. Koch Indus., Inc., 203 F.3d 1202, 1227 (10th Cir. 2000) (internal quotation
marks and citations omitted).
3
United States v. Jordan, 485 F.3d 1214, 1218 (10th Cir. 2007) (internal quotations and
citations omitted).
2
sure to result from the admission of evidence of the TAP Mark Family, the Court is not
persuaded that this prejudice substantially outweighs the probative value of the marks. Further,
any such prejudice can be ameliorated by the Court’s instructions to the jury.
Defendant seeks to buttress its prejudice argument with its assertion that Plaintiff “has
only just raised the specter of such marks—long after fact and expert discovery has closed, the
dispositive motion phase is in full swing, and trial is just around the corner.”4 In its opposition,
Plaintiff provides at least some evidence that the TAP Mark Family was properly disclosed
during the discovery period and, in its reply, Defendant appears to retreat from its position that
the other TAP marks were not disclosed.
On this last point, the Court would note that Defendant raises multiple arguments for the
first time in its improperly filed reply memorandum.5 The Court will decline to consider
arguments raised for the first time in a reply memorandum.6 The Court will, however, allow
Defendant to file a properly supported motion in limine raising any issues argued in its reply but
not addressed in this order. Defendant may also re-raise its Rule 402 or 403 objections with
regard to specific TAP Family Mark evidence at trial.
4
Docket No. 150, at 8.
5
The Court’s trial order, available on the Court’s website and also found at Docket No.
249, makes clear that motions in limine are limited to three pages in length. Further, the trial
order does not provide for the filing of a reply to a motion in limine.
6
See Pickering v. USX Corp., 758 F. Supp. 1460, 1461 n.2 (D. Utah 1990).
3
It is therefore
ORDERED that Defendant’s Second Motion in Limine (Docket No. 150) is DENIED
WITHOUT PREJUDICE.
DATED April 15, 2013.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?