Milo & Gabby, LLC et al v. Amazon.com, Inc
Filing
129
ORDER granting in part and denying in part 110 Defendant's Motion in Limine by Judge Ricardo S. Martinez.(SSM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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MILO & GABBY, LLC, and KAREN
KELLER, an individual,
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTIONS IN LIMINE
Plaintiffs,
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Case No. C13-1932RSM
v.
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AMAZON.COM, INC.,
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Defendant.
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I.
INTRODUCTION
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THIS MATTER comes before the Court on Defendant’s Motions In Limine. Dkt. #110.
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Having reviewed the parties’ briefing on each of the issues raised in Defendant’s motion, the
Court GRANTS IN PART and DENIES IN PART the motions as follows.
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II.
DISCUSSION
A. Keller Children
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Defendants first ask the Court to exclude any mention of the Keller children or that their
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images have been depicted in the Third-Party Sellers’ marketing materials and product
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packaging on the basis that it is irrelevant to the only remaining claim in this case, and is highly
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prejudicial because such information is likely to inflame emotions and improperly influence the
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jury. Dkt. #110 at 1-2. Plaintiffs oppose the motion, arguing that: 1) it is necessary for them to
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ORDER
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explain how they were able to determine that their own materials were being used to market
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knock off products; 2) they must be able to present evidence of willful infringement on the part
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of the non-Amazon Defendants; and 3) this evidence is relevant to how they have been harmed.
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Dkt. #122 at 2-3. The Court DENIES this motion. Given the broad range of potential evidence
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that Plaintiffs could seek to introduce and the nature of the remaining claim, the Court will rule
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upon specific evidentiary objections during the course of the trial.
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B. Evidence of Dismissed Claims
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Defendant next move to exclude any evidence or discussion relating to or supporting
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Plaintiffs’ dismissed claims, as well as any evidence regarding infringement of the asserted
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patents through sales of, importing, making or using the accused pillowcases. Dkt. #110 at 2-4.
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Plaintiffs argue that evidence supporting their dismissed claims and remaining claim overlaps
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and is relevant. Dkt. #122 at 4-5. The Court DENIES this motion IN PART. Plaintiffs will be
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precluded from specifically discussing their dismissed claims. However, given the broad range
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of potential evidence that Plaintiffs could seek to introduce and the nature of the remaining
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claim, the Court will rule upon specific evidentiary objections during the course of the trial.
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C. Evidence In Support of Damages
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Defendants next seek an Order from the Court precluding Plaintiffs from offering any
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evidence or argument in support of damages. Dkt. #110 at 4-12. The Court DENIES this
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motion. First, to the extent that it seeks to exclude entire theories asserted by Plaintiffs, a
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motion in limine is not the appropriate mechanism for such a motion. Second, the motion fails
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to address Plaintiffs’ damages theory under 35 U.S.C. § 289, or why they should not be allowed
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to present evidence in support of those damages. Finally, specific testamentary objections can
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be made during trial, at which time the Court can make an appropriate ruling.
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ORDER
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D. Indemnity
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Defendant initially moved to exclude any argument or testimony that Defendant may
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have claims for indemnification against the Third-Party Sellers. Dkt. #110 at 12. However, the
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parties have since informed the Court that this motion has been resolved. Dkt. #123 at 9.
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Accordingly, this motion is moot.
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E. Parties’ Respective Financial Positions
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Defendant next moves to preclude any evidence of the parties’ respective financial
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positions as prejudicial. Dkt. #110 at 13. Plaintiffs respond that Defendant’s motion should be
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denied as vague. Dkt. #122 at 13. The Court GRANTS Defendant’s motion. The parties shall
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not present argument comparing the relative size and financial positions between the parties.
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Specific objections about proposed evidence in support of any damages claims will be
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addressed by the Court during trial as noted above.
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F. Comparison of Products
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Defendant next moves to preclude Plaintiffs from drawing any comparison between any
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of its own commercial products and the accused products in support of their patent
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infringement claim on the basis that the accused products should only be compared to the
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patented design as a matter of law. Dkt. #110 at 14. Defendant also appears to be arguing
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against any comparison between marketing materials, although that is not entirely clear given
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that certain words or phrases appear to be missing from Defendant’s briefing, resulting in an
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incoherent argument. See Dkt. #110 at 14. In any event, the Court GRANTS this motion given
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that the only remaining claim in this matter involves whether Amazon.com “offered to sell” the
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Third-Parties’ products at issue which should not require any comparison of products or
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marketing materials.
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ORDER
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Nothing in this Order precludes Plaintiffs from addressing specific
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evidence or testimony with the Court at the time of trial and providing more context for its
necessity.
G. M&G’s Website Statements
Finally, Defendant asks the Court to Order that Plaintiffs remove certain statements
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from their website, which it asserts are inaccurate, prejudicial, and may taint potential jurors,
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and also constitute impermissible argument regarding remedial measures. Dkt. #110 at 15-18.
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Plaintiffs respond that such action would be an unconstitutional prior restraint on speech, and
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that evidence of subsequent remedial measures is admissible in certain circumstances. Dkt.
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#122 at 15-18. The Court DENIES this motion. Both parties will have the chance to explore
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with the jurors during voir dire their familiarity with any of the parties and the issues in this
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case. Further, the Court has standard instructions for the jurors regarding internet research and
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exposure to the media, and there is no reason to believe at this time that the jurors will not
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follow such instructions.
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DATED this 21 day of October, 2015.
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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE
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ORDER
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