Free Transfer Document - District Court of California - California

Case 3:08-cv-01493-JM-BLM

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Filed 08/04/2008

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1 AMY WINTERSHEIMER FINDLEY (BAR NO. 163074) MICHAEL R. ADELE (BAR NO. 138339) 2 CHARLENE J. WILSON (BAR NO. 222497) ALLEN MATKINS LECK GAMBLE 3 MALLORY & NATSIS LLP 501 West Broadway, 15th Floor 4 San Diego, California 92101-3541 Phone: (619) 233-1155 5 Fax: (619) 233-1158 E-Mail: [email protected] 6 [email protected] [email protected] 7 Attorneys for Defendant 8 BIoRx, LLC 9 10 11 12 NUTRISHARE, INC., a California corporation,Case No. 2:08-cv-01252-WBS-EFB .13 14
V.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Plaintiff,

Complaint filed June 4, 2008 DEFENDANT BIoRx, LLC'S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR TRANSFER VENUE DATE: TIME: CRTM: JUDGE: August 11, 2008 2:00 p.m. 5 Hon. William B. Shubb

15 BIoRx, LLC, an Ohio Limited Liability Company, 16 Defendant. 17 18 19 20 21

Defendant BioRx, LLC ("BioRx") hereby submits the following evidentiary objections to

22 the evidence cited below and filed by PlaintiffNutrishare, Inc. ("Plaintiff') in support of its 23 Opposition to Defendant's Motion to Dismiss or Transfer Venue. BioRx hereby requests and 24 moves that the Court sustain its objections and strike the evidence on the grounds set forth below: 25 ///// 26 ///// 27 ///// 28 /////
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

702150.011SD

OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS
OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR TRANSFER VENUE

Case 3:08-cv-01493-JM-BLM

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DECLARATION OF RODNEY OKAMOTO Objection #1: Testimony: Page 2, lines 11-16, "Through an Interact search, we learned that NutriThrive

4 may have at least one customer within the district. Specifically, on the Parent-2-Parent on-line 5 forum.., we found a post by a woman in Redding, California, Jessi who states she is the parent of 6 two boys, Jaxson, and Joshua. In this post, Jessi states 'I am working with NutfiThrive right 7 8
now.'"

Ground(s) for objection: FRE 602, lack of personal knowledge; FRE 104 lack of

9 foundation; FRE 802, hearsay. 10 11

Obiection #2: Testimony: P. 3, lines 18-20, "During the Oley Conference, my colleagues and I met a

12 woman named Rosemarie Mielke, who informed us that she lives in Lancaster, California and 13 used to be a customer of NutriThrive but switched her TPM provider to Crescent Health." 14

Ground(s) for objection:~ FRE 802, hearsay; FRE 602, lack of personal knowledge; FRE

15 104 lack of foundation. 16 17 Ob,[ection #3: Testimony: P. 3, lines 21-28, "Pursuant to the Oley Foundation's rules and policies,

18 Nutrishare, NutriThrive, and the other exhibits were not permitted to solicit new customers outside 19 the two-hour exhibition period that occurred on the Friday and Saturday of the conference .... 20 Kathryn Bundy, approached me and informed me thatNutriThrive's representatives were 21 aggressively soliciting her making her feel uncomfortable. NutriThrive's actions were in 22 contravention of the Oley Foundation's rules." 23 Ground(s) for objection: FILE 104, lack of foundation; FRE 602, lack of personal

24 knowledge; FILE 802, hearsay. 25 26 Ob|ection #4: Testimony: P. 4, lines 1-3, "In order to further confirm whether BioRx d/b/a NutriThrive

27 was conducting business in California, I and my colleagues called NutriThrive's number and asked 28 if they service TPN patients in California. They answered 'yes.'"
LAW OFFICES

Allen Matktns Leck Gamble Mallor~ & Natsis LLP

-2-

702150.01/SD

TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR TRANSFER VENUE
OBJECTIONS

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Ground(s) for objection: FRE 701, improper opinion testimony of a lay witness; FRE 802,

2 hearsay; FRE 602, lack of personal knowledge; FRE 104 lack of foundation. 3 4 Obiection #5: Testimony: P. 4, lines 3-5, "One of Nutrishare's patients in California also asked

5 NutriThrive to send her more information regarding its products and services. NutriThrive sent 6 her a full 'start-up' packet, which included their business card." 7 Ground(s) for objection: FRE 104, lack of foundation; FRE 602, lack of personal

8 knowledge; FRE 802, hearsay. 9 II. 10 11 DECLARATION OF APARNA RAJAGOPAL DURBIN Obiection #6: Testimony: P. 1, lines 24-28, "Based on a search on www.google.com, I learned that

12 BioRx was an exhibitor in the 2005 annual meeting of the American Association of 13 Neuromuscular and ElectroDiagnostic Medicine, which was held in Monterey, California.. A true 14 and correct copy of the list of exhibitors at this conference.., is attached hereto as Exhibit A." 15 Gr0und(s) for objection: FRE 104, lack of foundation; FRE 602, lack of personal

16 knowledge; FRE 802, hearsay. 17 18 Obiection #7: Testimony: P. 2, lines 1-7, "Based on the same Google search, I learned that on the same

19 day as the Oley Conference this year - June 26 - BioRx was in attendance and marketing its 20 products and services at the Neuropathy Action Foundation's ~europathy Action Awareness Day' 21 at the University of California San Francisco's Mission Bay Conference Center. A true and 22 correct copy of the list of exhibitors at this conference...is attached hereto as Exhibit B." 23 Ground(s) for objection: FRE 104, lack of foundation; FRE 602, lack of personal

24 knowledge; FRE 802, hearsay. 25 ///// 26 ///// 27 ///// 28 /////
LAW OFFICES Allen Matklns Leck Gamble Mallory & Natsis LLP

702150.01/SD

-3OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR TRANSFER VENUE

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Obiection #8: Testimony: P. 2, lines 8-15, "Also based on a Google search, I learned that BioRx worked

3 with Bayer Healthcare, based in Berkeley, California, to publish a children's book on hemophilia 4 entitled 'The Great Inhibitor,' in July, 2006. True and correct copies of press releases announcing 5 this joint venture.., are attached hereto as Exhibit C." 6
,

Ground(s) for objection: FRE 104, lack of foundation; FRE 602, lack of personal

7 knowledge; FRE 802, hearsay. 8 9 Objection #9: Testimony: P. 2, lines 16-19, "Also based on a Google search, I learned that in 2006,

10 BioRx had a Director of Business Development for the 'West,' Julie Winston. True and correct 11 copies of excerpts from the presentation made by Julie Winston at the 2006 Infusion Nurses 12 Society Annual Meeting... are attached hereto as Exhibit D." 13 Ground(s) for objection: FRE 104, lack of foundation; FRE 602, lack of personal

14 knowledge; FRE 802, hearsay. 15 16 Objection #10: Testimony: P. 2, lines 20-21, "Our client was able to identify at least one family within

17 this judicial district that uses NutriThrive products and services on the on-line forum www.parent18 2-parent.com." 19 Ground(s) for objection: FR_E 104, lack of foundation; FRE 602, lack of personal

2O knowledge; FRE 802, hearsay. 21 IlL 22 23 DECLARATION OF KATHRYN BUNDY Obi ection # 11: Testimony: P. 2, lines 2-8, "I~athleen responded that NutriThrive works with patients in

24 California, would send one of its nurses to California to help me get started on TPN, and would 25 subsequently have a local nurse from one of the several agencies in the area assist me with TPN. 26 Kathleen said that NutriThrive has relationships with several nursing agencies in California. I also 27 asked if NutriThrive was accredited by the American Commission on Healthcare (ACHC), to 28 which Kathleen responded, 'yes.'"
LAW OFFICES

Allen Matkins Leck Gamble Mallory & Natsis LLP

-a-

702150.01/SD

OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR TRANSFER VENUE

Case 3:08-cv-01493-JM-BLM

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Ground(s) for objection: FRE 802, hearsay; FRE 104, lack of foundation; FRE 602, lack

2 of personal knowledge. 3 4 Objection #12: Testimony: P. 2, line 15-20, "The first thing I noticed at the conference this year was that

5 NutriThrive's name was almost everywhere. I don't remember the Oley Foundation playing 6 favorites in the past like it did with NutriThrive this year. For example, there were sig~s all over 7 the buffet tables on the first full day of the conference indicating that lunch was sponsored by 8 NutriThrive. I really felt that this compromised the integrity of the conference, which should be 9 all about the consumer and not the company." 10 Ground(s) for objection: FRE 104, lack of foundation; FRE 602, lack of personal

11 knowledge; FRE 701, improper opinion testimony of a lay witness. 12 13 Objection #13: Testimony: P. 2, line 23 - P. 3, line 2, "... I was approached by a woman I didn't know. I

14 don't remember her name, but she.., started asking me questions about myself. As the discussion 15 continued, she seemed to be pumping me for more information and I started to feel uncomfortable16 -- like I was being courted or wooed. I asked the woman if she was a TPN consumer, and she 17 responded that her daughter was a TPN consumer, and when I asked her who her TPN provider is, 18 she said she uses NutriThrive, and finally revealed to me that actually, she works for NutriThrive. 19 It was inappropriate, and actually against the rules of the conference, for NutriThrive to be 20 soliciting me in that manner." 21 Ground(s) for objection: FRE 104, lack of foundation; FRE 701, improper opinion

22 testimony of a lay witness; FRE 802, hearsay. 23 IV. 24 25 DECLARATION OF SHEILA MESSINA Obiection #14: Testimony: P. 1, lines 24-26, "When I heard about NutriThrive, it occurred to me that the

26 name ~utriThrive' sounded ~ similar to ~utrishare," the name of my current TPN provider." 27 28 /////
LAW OFFICES Allen Matkins Leck Gamble Mallory & Natsis LLP

Ground(s) for objection: FRE 701, improper opinion testimony of a lay witness.

702150.01/SD

-5OBJECTIONS TO EVIDENCE SI~MITTED BY PLAINTIFF IN SUPPORT OF ITS OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR TRANSFER VENUE

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Objection #15:, Testimony: P. 1, line 28 - P. 2, line 1, "Although I did not actually approach their booth, I

3 again wa..._~s curious and wondered who they wer__...~e." 4 5 6 Dated: August 4, 2008 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
LAW OFFICES

Ground(s) for objection: FRE 401,402, irrelevant.

ALLEN MATKINS LECK GAMBLE MALLORY & NATSIS LLP By: s/Amy Wintersheimer Findley AMY WINTERSHE1MER FINDLEY MICHAEL R. ADELE CHARLENE J. WILSON Attorneys for Defendant BIORX, LLC

Allen Matktns Leck Gamble Mallory & Natsis LLP

702150.01/SD

-6OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFF IN SUPPORT OF ITS OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR TRANSFER VENUE