Innovention Toys, LLC v. MGA Entertainment, Inc. et al, No. 2:2007cv06510 - Document 532 (E.D. La. 2012)
Court Description: ORDER AND REASONS denying 481 Motion in Limine No. 5, as stated herein. Signed by Judge Susie Morgan on 11/01/2012. (tsf, )
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Innovention Toys, LLC v. MGA Entertainment, Inc. et al Doc. 532 U N ITED STATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A IN N OVEN TION TOYS, LLC, Plain tiff CIVIL ACTION VERSU S N o . 0 7-6 510 MGA EN TERTAIN MEN T, IN C., e t al., D e fe n d an ts SECTION “E” ORD ER AN D REASON S Before the Court is Defendants’ Motion in Lim ine No. 5.1 Defendants seek to preclude plaintiff from introducing evidence of, eliciting testim ony regarding, or arguing about conversations between Plaintiff’s lay witnesses Michael Larson (“Dr. Larson”) and Luke Hooper (“Mr. Hooper”) and representatives of Wal-Mart and Toys “R” Us at the 20 0 6 New York Toy Fair.2 Defendants argue that Plaintiff intends to introduce evidence of these conversations, in which Wal-Mart and Toys “R” Us buyers allegedly told Dr. Hooper and Mr. Larson that they were not interested in purchasing Plaintiff’s gam e because “they had recently seen a prototype of [defendant MGA Entertainm ent’s] Laser Battle Gam e.3 Defendants contend that Dr. Hooper and Mr. Larson’s conversations with the Wal-Mart 1 R. Doc. 481. Defendants in this case are MGA Entertainm ent, Inc. (“MGA”), Toys “R” Us, Inc. (“Toys ‘R’ Us”), and Wal-Mart Stores, Inc. (“Wal-Mart”). 2 According to Dr. Larson’s deposition testim ony, he spoke with representatives from both WalMart and Toys “R” Us at the 20 0 6 New York Toy Fair. R. Doc. 481-2, Larson Dep. 71:11-72:10 ; 76:1977:12, Dec. 9, 20 10 . The excerpt of Mr. Hooper’s deposition testim ony attached to Defendants’ m otion in lim ine only indicates a conversation with a Wal-Mart buyer during that fair. R. Doc. 481-3, Hooper Dep. 90 :1-10 , Dec. 10 , 20 10 . 3 R. Doc. 481-1 at p. 1. According to the deposition testim ony of Dr. Larson, representatives from Wal-Mart and Toys “R” Us inform ed him that they were not interested in Plaintiff’s gam e because the WalMart buyer had already “m ade an agreem ent” to buy a gam e just like Plaintiff’s gam e and the Toys “R” Us buyer had already “agreed to pick up” a gam e just like Plaintiff’s gam e, not because the buyers had seen a “prototype” of MGA’s Laser Battle gam e. R. Doc. 48 1-2, Larson Dep. 71:11-72:10 ; 76:19-77:12, Dec. 9, 20 10 . 1 Dockets.Justia.com and Toys “R” Us buyers are classic inadm issible hearsay. Plaintiff argues that the Wal-Mart buyers’ statem ents are not hearsay, but instead party adm issions. Defendants also seek to preclude Plaintiff from introducing evidence of, eliciting testim ony regarding, or arguing about conversations between Dr. Larson, Mr. Hooper, and Robert Schlom off (“Schlom off”). Defendants argue that Plaintiff will introduce evidence of these conversations, in which Schlom off “allegedly offered to invest an unspecified sum of m oney in plaintiff.”4 Defendants argue that these statem ents by Schlom off are also inadm issible hearsay. Plaintiff argues that the statem ents are excepted from the general rule against the adm issibility of hearsay statem ents, as they showed Schlom off’s then existing state of m ind regarding his intention to invest in Plaintiff. The Federal Rules of Evidence govern Defendants’ m otion in lim ine. Rule 80 1 defines hearsay as an out of court statem ent introduced to prove the truth of the m atter asserted. Fed. R. Evid. 80 1. Rule 80 2 provides that hearsay statem ents generally are not adm issible, but that there are exceptions to this general rule. Fed. R. Evid. 80 2. Under Rule 80 1(d)(2)(C), a statem ent offered against an opposing party and m ade by a person whom the party authorized to m ake the statem ent is not hearsay. Fed. R. Evid. 80 1(d)(2)(C). Under Rule 80 1(d)(2)(D), a statem ent offered against an opposing party and m ade by party’s agent or em ployee on a m atter within the scope of the em ploym ent relationship is not hearsay. Fed. R. Evid. 80 1(d)(2)(D). Under Rule 80 3(3), a statem ent of a declarant’s “then-existing statem ent of m ind” is adm issible as an exception to the general rule against hearsay. Fed. R. Evid. 80 3(3). Plaintiff will be allowed to introduce evidence of the conversations Dr. Larson and 4 R. Doc. 481-1 at p. 1. 2 Mr. Hooper had with representatives of Wal-Mart and/ or Toys “R” Us at the 20 0 6 Toy Fair. The conversations are being offered by Plaintiff against Defendants, and it is clear that the buyers were either authorized to m ake these statem ents about their decision not to buy from Plaintiff or that they were acting within the scope of their em ploym ent with Wal-Mart and Toys “R” Us when they m ade those statem ents (or both). Under Rule 80 1(d)(2)(C) and Rule 80 1(d)(2)(D), these statements are not hearsay, and are thus adm issible at trial. These buyers are representatives of Defendants Wal-Mart and Toys “R” Us, and Wal-Mart and Toys “R” Us certainly had the opportunity to talk to the buyers in preparation for trial, so allowing Plaintiff to introduce those buyers’ statem ents will not prejudice Defendants. Plaintiff will also be allowed to introduce evidence, through the testim ony of Dr. Larson and Mr. Hooper, regarding Schlom off’s alleged investm ent offer. According to Dr. Larson, “som ebody with very deep-pocket resources,” m ade Plaintiff a “very serious offer” in 20 0 5 or 20 0 6.5 It is clear that Dr. Larson was talking about Schlom off.6 According to Mr. Hooper, during a tour of Dr. Larson’s laboratory at Tulane University, Schlom off “whipped out a checkbook and said ‘How m uch do you want.’”7 Plaintiff argues that the statem ents show Schlom off’s “then-existing state of m ind,” i.e., his intent to invest in Plaintiff during that visit, and are thus adm issible as an exception to the hearsay rule under Rule 80 3(3). Schlom off was never listed on Plaintiff’s witness lists, and Defendants have not cross-exam ined Schlom off regarding those statem ents m ade to Dr. Larson and Mr. 5 R. Doc. 481-2, Larson Dep. 236:16-17, Dec. 9, 20 10 . 6 At his deposition on Decem ber 9, 20 10 , Dr. Larson could not recall Schlom off’s nam e, but said that Mr. Hooper m ight be able to recall his nam e. Id. at 236:6-12. 7 R. Doc. 481-3, Hooper Dep. 148:24-149:1, Dec. 10 , 20 10 . Mr. Hooper was able to recall Schlom off’s full nam e at his deposition. Id. at 147:19-20 . 3 Hooper. However, the depositions of Dr. Larson and Mr. Hooper were taken in Decem ber 20 10 , and Defendants could have sought out and deposed Schlom off if they wished. Dr. Larson’s and Mr. Hooper’s testim ony about Schlom off’s hearsay statem ent as to his intention to invest in Innovention Toys is adm issible as evidence of Schlom off’s state of m ind at the tim e he m ade the statem ent, pursuant to Federal Rule of Evidence 80 3(3). As a result, the Court finds that Schlom off’s statem ents are adm issible for the lim ited purpose of showing Schlom off’s state of m ind at the tim e he m ade the statem ent to Dr. Larson and Mr. Hooper. The Court will restrict testim ony regarding Schlom off’s statem ents to this lim ited purpose. Accordingly, IT IS ORD ERED that Defendants’ Motion in Lim ine No. 5 be and hereby is D EN IED , as set forth above. N e w Orle an s , Lo u is ian a, th is _ 1st _ d ay o f N o ve m be r, 2 0 12 . __ _____________________________ SU SIE MORGAN U N ITED STATES D ISTRICT JU D GE 4
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