The Citri-Lite Company, Inc. v. Cott Beverages, Inc., No. 1:2007cv01075 - Document 91 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION AND ORDER DENYING defendant's Motions to Strike, documents 75 and 76 , without prejudice, to the filing of motions in limine in accordance with the applicable local rules and the Federal Rules of Evidence; order signed by Judge Oliver W. Wanger on 1/25/2011. (Rooney, M)
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The Citri-Lite Company, Inc. v. Cott Beverages, Inc. Doc. 91 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 1:07-cv-01075-OWW-JLT 8 THE CITRILITE COMPANY, Inc., 9 MEMORANDUM DECISION AND ORDER RE: DEFENDANT’S MOTIONS TO STRIKE (Docs. 75, 76) Plaintiff, 10 v. 11 COTT BEVERAGES, Inc., 12 Defendant. 13 14 I. INTRODUCTION. 15 16 17 Plaintiff the Citrilite Company, Inc. (“Plaintiff”) proceeds with an action for damages against Defendant Cott Beverages, Inc. (“Defendant”). 18 19 20 21 22 Defendant Plaintiff’s experts motions on to December strike 6, certain 2010. opinions (Docs. 75, of 76). Plaintiff filed opposition to Defendant’s motions on December 27, 2010. (Docs. 78, 80). Defendant filed replies on January 3, 2011. (Docs. 82, 83). 23 II. FACTUAL BACKGROUND.1 24 25 filed From 1996 to 2003, Plaintiff produced and marketed Slim-Lite, a zero calorie fruit-flavored drink. On December 28, 2003, 26 27 28 1 The following factual background is limited to issues relevant to Defendant’s motions to strike. An exhaustive factual history is set forth in the Memorandum Decision re: Defendant’s Motion for Summary Judgment. (Doc. 65). 1 Dockets.Justia.com 1 Plaintiff entered into a written agreement entitled “Intellectual 2 Property License and Purchase Option Agreement” (“the Agreement”) 3 with Defendant, a producer and distributer of various non-alcoholic 4 beverages. 5 Under the terms of the Agreement, Plaintiff granted Defendant 6 the exclusive right to use the Slim-Lite brand identity and all 7 associated 8 manufacture, 9 Slim-Lite. intellectual production, property rights distribution, for sale purposes and of the marketing of In exchange, Defendant agreed to make royalty payments 10 to Plaintiff based on a rate of fifty cents ($0.50) per case of 11 product sold (i.e., fifty cents per 240 ounces of the product sold 12 by Cott), with a guaranteed minimum royalty of $350,000 per year. 13 The Agreement required Defendant to spend a certain amount to 14 market Slim-Lite and to “otherwise use commercially reasonable 15 efforts to promote and sell” Slim-Lite “so as to maintain and 16 enhance the value of the goodwill” inhering in Slim-Lite and 17 “produce the maximum amount of” royalty under the Agreement. 18 Plaintiff contends that Defendant breached its obligation to use 19 commercially reasonable efforts to promote and sell Slim-lite. 20 Inter alia, Plaintiff contends that Defendant’s reduction and 21 eventual elimination of in-store demos of Slim-Lite at Sam’s Club 22 was commercially unreasonable and resulted in lost royalties and 23 damage to the value of Slim-Lite’s goodwill. 24 The proper methodology for assessing the impact of Defendant’s 25 reduction and elimination of in-store demos at Sam’s Club is the 26 subject of a dispute between the parties’ experts and is the issue 27 underlying Defendant’s first “motion to strike” certain opinions 28 related to the effectiveness of in-store demos. 2 (Doc. 75). 1 Defendant’s second motion to strike assails the methodology used by 2 Plaintiff’s damages expert to calculate future lost profits and 3 damage to Slim-Lite’s goodwill. (Doc. 76). III. LEGAL STANDARD. 4 5 Federal Rule of Civil Procedure 12(f) provides that a court 6 may strike from any pleading “an insufficient defense or any 7 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. 8 Civ. P. 12(f). 9 matter is "that which has no essential or important relationship to 10 the claim for relief or the defenses being pleaded." Fantasy, Inc. 11 v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev'd on other 12 grounds, 510 U.S. 517, 114 S. Ct. 1023, 127 L. Ed. 2d 455 (1994). 13 Scandalous matters are allegations that unnecessarily reflect on 14 "the moral 15 repulsive language that detracts from the dignity of the court." 16 Consumer Solutions Reo, LLC v. Hillery, 658 F. Supp. 2d 1002, 1021 17 (N.D. 18 consideration issues that "can have no possible bearing on the 19 subject matter of the litigation." Naton v. Bank of California, 72 20 F.R.D. 550, 552 n.4 (N.D. Cal. 1976). 21 district court’s inherent authority to manage its docket authorizes 22 the court strike matters from the docket. Cal For the purposes of a motion to strike, immaterial character 2009). of Rule an individual 12(f) is or deigned states to anything eliminate in from In addition to Rule 12, a 23 Defendant's motions are procedurally unorthodox. A Rule 12 24 motion is necessary directed to a pleading, which is defined by 25 Federal Rule of Civil Procedure 7. 26 settled, as the summary judgment phase of this case is complete. 27 It appears that Defendant’s motions to strike are motions in 28 limine, evidentiary in nature, to exclude certain expert opinions 3 The pleadings have long been 1 from admission at trial. 2 proper procedure for advancing motions in limine is to identify 3 disputed evidentiary issues in the pre-trial statement, E.D. Cal. 4 R. 281(b)(5)), whereafter a motion in limine schedule is set. 5 pre-trial conference for this matter is set for February 28, 2011. 6 (Scheduling Conference Order, Doc. 71). 7 scheduled at that time. The Motions in limine will be IV. DISCUSSION. 8 9 Pursuant to Local Rule 281(b)(5), the A. Opinions Related to the Effectiveness of In-Store Demos 10 1. John Carson’s Opinions 11 John Carson is a designated expert retained by Plaintiff to 12 provide opinions on the commercial reasonableness of Defendant’s 13 efforts to promote Slim-Lite. 14 years experience in the beverage industry and has served as the 15 president and chief executive officer for companies involved in the 16 sales, marketing, and distribution of a variety of soft drinks and 17 adult beverages. 18 to 19 relationships. major Mr. Carson has over thirty-five Mr. Carson has been directly involved in selling retailers and managing third party distributor 20 In his initial rebuttal report (“Rebuttal Report”), Mr. Carson 21 criticizes analysis provided by Defendant’s expert, Dr. Randolph E. 22 Bucklin. 23 purports to demonstrate that in-store demos of Slim-Lite at Sam’s 24 Club were 25 sufficient sales to cover the costs of the demos. 26 rejects Dr. Bucklin’s “implicit conclusion” that the goal of demos 27 was to immediately generate a sufficient increase in Slim-Lite 28 sales to justify the expense of the demos. Dr. not Bucklin performed profitable because 4 a regression the demos analysis did not which generate Mr. Carson (Carson’s Initial 1 Rebuttal Report, Doc. 76, Ex. C at 7). 2 purpose of in-store demos “is not to generate an immediate sales 3 increase but rather to support initial sales levels and to provide 4 enough product trial and awareness to promote long-term sales 5 growth.” (Id.). 6 framework is flawed because it focuses only on the immediate 7 effects of demos on sales in the short run and does not account for 8 the role demos play in promoting long-term sales growth. 9 example, Mr. Carson argues that Dr. Bucklin’s analysis does not 10 take into consideration the impact canceling all demos had on 11 Defendant’s relationship with Sam’s Club. According to Mr. Carson, 12 because demos demonstrate to a retailer a supplier’s level of 13 commitment to promoting a product, a supplier’s decision to cancel 14 all remaining demos adversely impacts the supplier’s relationship 15 with 16 distribution and volume with the retailer in the long-term. 17 (Carson’s Initial Rebuttal Report, Doc. 76, Ex. C at 6, 9). 18 19 20 21 22 23 24 the Mr. Carson opines that the Mr. Carson contends Dr. Bucklin’s analytical retailer, leading to repercussions for For overall Mr. Carson’s Rebuttal Report offers the following critique of Dr. Bucklin’s regression analysis: [R]ather than analyzing whether the demos immediately paid for themselves, as I understand Dr. Bucklin to have done, a better measure of the effectiveness of demos is to analyze the cumulative impact of demos on the cumulative sales of Slim-Lite. In reviewing the demo program practiced by Citri-Lite prior to December 2003, I see that Citri-Lite utilized demos for this purpose, which is demonstrated by the relatively gradual expansion into 248 Sam’s Club stores over a period of several years and a steady increase in sales. 25 (Id.)(emphasis added). Mr. Carson’s Rebuttal Report does not 26 explain what he means when he uses the term “cumulative sales.” 27 Based on the criticisms Mr. Carson advances in the Rebuttal Report, 28 5 1 it appears that when Mr. Carson discusses “the cumulative impact of 2 demos 3 cumulative long-term increase in sales attributable to in-store 4 demos. 5 on the cumulative sales,” Mr. Carson is referring to Defendant seeks an order striking the portion of Mr. Carson’s 6 opinion italicized above. 7 that (1) use of cumulative demo activity to explain cumulative 8 sales figures is an unorthodox method that is unsupported in the 9 field of marketing research; and (2) Carson’s proposed cumulative 10 analysis is unreliable because regression analysis of two sets of 11 cumulative 12 relationship, regardless of whether the data sets are related, as 13 both cumulative data sets necessarily grow over time. 14 arguments are misdirected. 15 mathematical 16 analysis, not to Mr. Carson’s criticism of the manner in which Dr. 17 Bucklin evaluated the utility of Sam’s Club demos. data (Doc. 75 at 2). inherently methodology creates the Defendant contends appearance of a Defendant’s Defendant’s arguments apply to the underlying Thomas Neches’ regression 18 Mr. Carson does not purport to know how to construct a 19 mathematical model to assess the cumulative impact of demos on 20 cumulative long-term sales increases, he simply opines that such an 21 assessment is favorable to Dr. Bucklin’s analysis and purports to 22 identify flaws in Dr. Bucklin’s model. 23 curriculum vitae suggests that Mr. Carson has sufficient education 24 or 25 methodology 26 regression analysis,2 and it is clear that Mr. Carson’s Rebuttal experience in for mathematics analyzing to and Nothing in Mr. Carson’s qualify comparing him data to fashion sets through 27 28 2 Mr. Carson’s curriculum vitae does not indicate what degrees he holds. 6 a 1 Report does not offer an alternative statistical model to Dr. 2 Bucklin’s. 3 submitting a critique of [Dr. Bucklin’s regression analysis], and 4 therefore, I do not comment on the statistical soundness of that 5 analysis.” (Rebuttal Report at 6). 6 the opinion in his Rebuttal Report that total cumulative weekly 7 sales of Slim-Lite should be included as the dependant variable in 8 a least-squares multivariate linear regression analysis; Thomas 9 Neches’ concluded this was appropriate in his regression model 10 based on Mr. Carson’s opinion regarding the long-term goals of demo 11 programs. The fact that Mr. Neches devised an allegedly unreliable 12 methodology based on Mr. Carson’s opinion does not render Mr. 13 Carson’s opinion unreliable. The Rebuttal Report provides: “Thomas Neches is Nor does Mr. Carson express 14 Mr. Carson’s experience qualifies him to offer his criticism 15 of Dr. Bucklin’s general analytical framework, and Mr. Carson’s 16 criticism may assist the fact finder in determining the weight that 17 it should afford Dr. Bucklin’s regression analysis. 18 motion to strike Mr. Carson’s opinion is DENIED without prejudice 19 to Defendant’s right to file a proper motion in limine. Defendant’s 20 2. Thomas Neches’ Regression Analysis 21 Thomas Neches is a designated expert retained by Plaintiff to 22 determine Plaintiff’s economic damages. Mr. Neches has thirty 23 years experience performing accounting, financial, economic, and 24 statistical analysis. 25 and is certified in financial forensics, among other disciplines. 26 On October 22, 2010, Mr. Neches prepared an Updated Expert Report 27 (“Updated Report”) in which he criticized Dr. Bucklin’s statistical 28 analysis of the effectiveness of in-store demos at Sam’s Club. Mr. Neches is a certified public accountant 7 1 Among other criticisms levied in the Updated Report, Mr. Neches 2 asserts that Dr. Bucklin’s analysis fails to account for the impact 3 of demos on long-term cumulative sales. 4 least-squares multivariate linear regression analysis to estimate 5 the cumulative weekly number of Slim-Lite cases sold as a function 6 of three factors: the cumulative number of weekly Friday through 7 Sunday demos; the cumulative number of Monday through Thursday 8 demos; and the number of stores carrying Slim-Lite in the week. 9 Mr. Neches’ analysis indicates that Friday through Sunday demos at 10 Sam’s Club where cost-effective, but that Monday through Thursday 11 demos were not. 12 Mr. Neches conducted a Defendant argues that Mr. Neches’ regression analysis is 13 neither relevant nor admissible. 14 Defendant advances three contentions, each of which is essentially 15 a 16 cumulative data sets may appear to demonstrate a relationship and 17 thus 18 Defendant contends that (1) cumulative analysis of sales data has 19 not gained acceptance in the field of marketing research; (2) 20 statistical analysts warn against using cumulative analysis of data 21 sets; 22 relationship between almost any two sets of data. gloss on the regression and (3) central In support of its position, criticism analysis of cumulative such Defendant data analysis sets can raises: is any two unreliable. incorrectly imply a 23 Defendant’s expert, Dr. Bucklin, states “using cumulative demo 24 activity to explain cumulative sales is an unorthodox approach...I 25 have never seen [Mr. Neche’s] type of formulation 26 analysis of marketing data.” 27 Doc. 76-4, Ex. D at 4). 28 specific application of used in the (Bucklin’s Second Rebuttal Report, Although Dr. Bucklin has not seen a a least-squares 8 multivariate linear 1 regression analysis in which cumulative sales was used as the 2 dependant variable, Dr. Bucklin does not dispute that regression 3 analysis of cumulative data sets is a generally accepted scientific 4 practice, albeit one that is subject to scrutiny in light of the 5 well-recognized pitfalls of such analysis. 6 Dr. Bucklin cites in his report provides: 7 8 9 10 11 The econometrics text It is important to be aware of trends in analyzing the relationships between two variables that are changing over time. One reason is that is it easy for investigators to be fooled into believing that there is a real relationship between two variables when in fact the two variables are unrelated. For example, if both variables are following an upward trend over time, it will appear that the dependent variable is increasing because the independent variable is increasing. 12 (Doc. 75, Motion to Strike at 7). Dr. Bucklin’s own authority 13 indicates that regression analysis of cumulative data is an 14 accepted methodology, provided the results of such analysis are 15 placed in the context of natural trends inherent in the data sets; 16 at trial, or during a hearing on a motion in limine, Defendant can 17 elicit this context during cross-examination of Mr. Neches and 18 direct examination of Dr. Bucklin. Further, the econometrics text 19 cited by Dr. Bucklin, as well as his own statements, reveal that 20 the real danger underlying regression analysis of cumulative data 21 sets – implying a relationship between completely unrelated sets of 22 data– is not present here. Dr. Bucklin cannot argue in good faith 23 that there is no relationship between demos and sales, as even his 24 own analysis demonstrates the existence of a relationship: 25 26 27 [T]he approach I have taken regressing current sales on current and lagged demos is the appropriate way to estimate the effect of demos on Slim-Lite sales. Note that I find the effect to be positive and significant when using my approach. 28 9 1 (Bucklin’s Second Rebuttal Report, Doc. 76-4, Ex. D at 5). 2 Because, as even Dr. Bucklin concludes, there is some relationship 3 between cumulative demos and sales, it is axiomatic that cumulative 4 demos are related to cumulative sales. 5 analysis overstates the relationship between cumulative demos and 6 cumulative sales relates to the credibility and weight of Mr. 7 Neches’ analysis, not its admissibility. 8 reveals that Mr. Neches’ regression model is designed to magnify 9 the relationship between cumulative demos and cumulative sales by 10 building in a positive correlation arising out of the inherent 11 upward trend attendant to cumulative data sets, the fact finder can 12 draw appropriate inferences regarding Mr. Neches’ credibility and 13 the value of his analysis.3 Whether or not Mr. Neches’ To the extent testimony Dr. Bucklin’s attempt to demonstrate the fallacy of Mr. 14 15 Neches’ methodology by conducting a regression analysis of 16 cumulative data concerning rainfall figures in Seattle, Washington 17 and the Los Angeles Lakers’ basketball scores during the 2008-2009 18 season is unavailing. 19 Mr. Neches’ analysis, Lakers’ scores and Seattle precipitation are 20 indisputably unrelated. 21 regression analysis is denied without prejudice to Defendant’s 22 right to file a proper motion in limine. 23 /// Unlike the cumulative data sets included in Defendant’s motion to strike Mr. Neches’ 24 25 26 27 28 3 Notably, although Mr. Neches’ analysis revealed a statistically significant positive relationship between cumulative Monday-Thursday demos and cumulative sales, Mr. Neches’ still concluded that such demos were not profitable and that it was not commercially unreasonable for Defendant to cease Monday-Thursday demos. Dr. Bucklin’s regression analysis also reflects a distinction between the effectiveness of Monday-Thursday demos and Friday-Sunday demos. (Bucklin’s Second Rebuttal Report, Doc. 76-4, Ex. D at 7). 10 1 2 B. Motion to Strike Thomas Neches’ Damages Calculations Plaintiff’s damages expert, Mr. Neches, prepared an analysis 3 purporting to 4 goodwill of Slim-Lite caused by Defendant’s alleged breach. 5 Neches’ analysis posits three alternative scenarios. 6 Neches’ fist scenario, Defendant would have continued selling Slim- 7 Lite under the terms of the Agreement through 2015. 8 Neches’ 9 purchase option in 2006 and then continued selling Slim-Lite second 2015. calculate lost scenario, Defendant Mr. Under Mr. Under Mr. exercised scenario, to its terminates the Agreement in 2005, Plaintiff sells Slim-Lite through 12 2015, and then earns or sells the present value of future profits 13 after 2015. Defendant third have damage 11 15 Neches’ would and through 1. Mr. profits 10 14 Under expected Defendant Lost Profits correctly contends that Mr. Neches’ first two 16 scenarios for projecting lost profits are violative of California 17 law and the court’s Memorandum Decision on Defendant’s Motion for 18 Summary Judgement (“Memorandum Decision”). 19 Memorandum decision provides, in pertinent part: 20 21 22 23 24 25 26 27 28 (Doc. 36). [Martin v. U-Haul Co. of Fresno, 204 Cal. App. 3d 396 (1988)] [] applies here and limits Citri-Lite’s recoverable damages. Cott properly terminated the Agreement without cause by providing Citri-Lite, in October 2005, a sixty-day advance written notice that it was terminating the Agreement. (Doc. 40 at 52- 23, 64). After that sixty-day notice period elapsed, the Agreement terminated and Citri-Lite could not reasonably expect further performance or royalty payments from the Agreement beyond that point. At least one, if not more, of Citri-Lite’s damages theories, however, projects Cott’s sales of Slim-Lite and royalty payments to Citri-Lite through 2015. These damages theories presuppose more than full performance by Cott as limited by the contract’s express terms. To the extent Citri-Lite seeks damages for lost royalty payments beyond the termination of the Agreement, Plaintiff is barred from 11 The 1 2 recovering those damages. At oral argument on the motion, Citri-Lite conceded the point, agreeing that Martin precludes recovery of lost royalties beyond the term of the Agreement. 3 (Doc. 65 at 45). Plaintiff tacitly concedes that Mr. Neches did 4 not review or follow the Memorandum Decision in preparing his 5 opinion on lost profits. 6 Plaintiff attempts to overcome the rule set forth in Martin by 7 arguing that (1) the court has broad discretion to admit expert 8 testimony; (2) the court should exercise its discretion to admit 9 Mr. Neches’ analysis because Defendant’s concealment of its breach 10 makes it difficult at this point in time to ascertain damages. 11 Plaintiff cites a slew of cases, none of which address the analysis 12 contained in the Memorandum Decision. Defendant’s conclusory 13 allegation that Defendant’s conduct makes it difficult to ascertain 14 damages at this point in time is insufficient to permit the court 15 to ignore its prior ruling, which now constitutes the law of the 16 case, and apposite California precedent which holds that lost 17 profit damages are limited to the term of the contract. E.g. 18 Martin, 204 Cal. App. 3d at 409. 19 Although it is not a clearly articulated argument raised in 20 Plaintiff’s opposition, Plaintiff also suggests that Defendant’s 21 breach in 2004 (i.e. Defendant’s commercially unreasonable handling 22 of Slim-Lite) caused Defendant to later terminate the agreement and 23 thus Defendant’s termination of the agreement was itself a harm 24 caused by Defendant’s commercially unreasonable conduct. 25 Plaintiff’s purported exception would swallow the Martin rule, as 26 an aggrieved party could avoid the rule simply by asserting that 27 some antecedent breach of a contract obligation, such as a breach 28 12 1 of the covenant of good faith and fair dealing, caused their 2 adversary to exercise a termination option. 3 All three of Mr. Neches’ scenarios regarding lost profits are 4 inadmissible 5 incorporate projections of lost profits inuring after the contract 6 term in violation of the Martin and the Memorandum Decision. 2. 7 to ascertain lost profit damages, as all three Lost Goodwill 8 a. Mr. Neches’ Damages Scenarios and Goodwill Calculation 9 Plaintiff argues that even if it is limited to lost profits 10 realized during the contract term, Mr. Neches lost profits 11 projections are relevant to the issue of damage to Slim-Lite’s 12 goodwill, as 13 present value of expected future sales and profits with the actual 14 present value of expected sales and profits at the time the parties 15 agreement terminated. 16 4). 17 profit projections are only relevant to the issue of damage to 18 Slim-Lite’s goodwill to the extent such projections are sound. 19 Because Mr. Neches’ first two scenarios are based on the unfounded 20 assumption that Defendant would have continued to sell Slim-Lite 21 past the contract term, they are not relevant to determining damage 22 to Slim-Lite’s goodwill. 23 “[t]o the extent the goodwill damages Citri-Lite seeks are premised 24 on 25 Citri-Lite is barred from recovering those damages.” 26 46). damage to goodwill is calculated by comparing the (Updated Neches Report, Doc 76-1, Ex. A at Assuming Plaintiff’s argument is correct, Mr. Neches’ lost Cott’s performance As stated in the Memorandum Decision: beyond the termination of Agreement, (Doc. 65 at 27 Unlike his first two scenarios, Mr. Neches’ third lost profit 28 scenario does not assume continued sales by Defendant of Slim-Lite 13 1 through 2015. Rather, Mr. Neches’ third scenario assumes that 2 Plaintiff 3 untarnished) itself from 2005 to 2015. 4 Slim-Lite’s goodwill based on projected profits Plaintiff could 5 have received selling Slim-Lite itself from 2005 through 2015 had 6 Defendant not damaged Slim-Lite’s goodwill appears reasonable. 7 Conceptually, the lost profit projections provided in Mr. Neches’ 8 third scenario are relevant to ascertaining damage to Slim-Lite’s 9 goodwill, but only to the extent that such projections are sound. would have continued to sell Slim-Lite (goodwill Evaluating the value of 10 The substantive merits of Mr. Neches’ analysis can be explored in 11 limine. b. 12 Mr. Neches’ Goodwill Calculation 13 Defendant complains that Mr. Neches’ goodwill calculation is 14 flawed because it does not follow the legally-recognized formula 15 for calculating goodwill. 16 subtract the value of Plaintiff’s net-assets at the time of breach. 17 (Doc. 76, Motion to Strike at 9). 18 Neches did not subtract net-assets because Plaintiff had “few 19 tangible 20 “virtually the entire value of the company.” 21 at 21). 22 legally acceptable formula for calculating goodwill. assets” and thus Specifically, Mr. Neches failed to Plaintiff responds that Mr. Slim-Lite’s goodwill accounted for (Doc. 80, Opposition Plaintiff also disputes the notion that there is only one 23 Mr. Neches’ own statement in his Updated Rebuttal Report 24 states that net assets should be subtracted from expected profits 25 in calculating goodwill. 26 value Plaintiff’s “few tangible assets” at the time of breach. 27 There may be a valid explanation for Mr. Neches’ decision, but none 28 is provided. Mr. Neches should have endeavored to A more thorough inquiry is required before Mr. 14 1 Neches’ goodwill valuation is excluded in whole or in part. 2 Defendant’s arguments are best addressed in the context of a motion 3 in limine. ORDER 4 5 For the reasons stated, Defendant’s Motions to Strike are 6 DENIED, without prejudice to the filing of motions in limine in 7 accordance with applicable local rules and the Federal Rules of 8 Evidence. 9 IT IS SO ORDERED. 10 Dated: hkh80h January 25, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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