Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Plaintiff has filed a M otion for Reconsideration (Doc. #344) which asks the Court to 16 reconsider its ruling that Awareness failed to produce evidence that some Individual 17 Defendants made certain alleged false statements in advertising. 18 to include Appendix A in its summary judgment briefing. 19 corrected filing that did not come to the Court's attention. As a result, the Court did not 20 consider Appendix A in its summary judgment ruling. A w areness re-submits the appendix 21 in its motion for reconsideration to show that Awareness did, in fact, produce some 22 evidence necessary for its Lanham Act claims. 23 reconsider its conclusions that there is no evidence that: 24 1. 25 2. 26 tested," or from a "M aster Herbalist." 27 28 The M acGregors and Remelskis said that GVI product s are "ancient," "timeThe Remelskis claimed that M attice is a "certified nutritionist." Specifically, Awareness asks the Court t o The appendix was added by a Awareness initially failed vs. Group Vision International, L.L.C., et al., Defendant. Awareness Corporation, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CV03-2024-PHX-DGC ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Case 2:03-cv-02024-DGC

Document 386

Filed 08/19/2005

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3.

The M acGregors and Remelskis claimed that GVI had certain properties.

curative

4.

The Remelskis stated that Awareness products are dangerous.

In response, Defendants argue that A p pendix A offers no new evidence because the same evidence was available in Appendix B and elsewhere in Awareness' briefing. As noted by the Court in its summary judgment ruling, the parties submitted thousands of pages of exhibits and briefing, leaving the court wit h the difficult task of evaluating the evidence. App endix A contains an abridgment of Awareness' evidence The Court's

which would have aided the Court in making it s s ummary judgment ruling.

primary objective at summary judgment was to rule correctly; to the extent that the Court overlooked evidence summarized in Appendix A, the Court will reconsider its summary judgment ruling. After reviewing Awareness' motion and Appendix A, the Court will amend its summary judgment ruling as follows: 1. There is evidence that the Remelskis claimed that M attice is a "certifed PSOF, Ex. 62 (press release). Awareness may assert a

nutritionis t " in an advertisement.

Lanham Act claim against the Remelskis for this statement. 2. There is evidence that the M acgregors claimed that GVI products were " t imeA w areness There is no The

tested" or from a "trained M aster herbalist." PSOF, Ex. 58 (Lifetree website). may assert a Lanham Act claim against the M acgregors for this statement.

evidence, however, that the Remelskis made similar claims in an advertisement.

evidence cited in Appendix A shows that the Remelskis made their st at ement s in conference calls, which the Court already ruled were not sufficiently disseminated to qualify as advertising. See Doc. #341 at 7. 3. There is evidence that the M acGregors made claims that GVI products have Awareness may assert a There is no evidence,

cert ain curative properties. See PSOF, Ex. 53 (radio program). Lanham Act claim against the M acgregors for this statement.

Case 2:03-cv-02024-DGC

Document 386

-2Filed 08/19/2005

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

however, that t he Remelskis made similar claims in an advertisement.

The evidence cited

in Appendix A shows that the Remelskis made t heir statements in conference calls, which the Court ruled were not sufficiently disseminated to qualify as advertising. 4. There is no evidence that the Remelskis made statement s t hat Awareness

products are dangerous in an advertisement. Awareness cites to Exhibit 47 of its Statement of Facts, which is an email from the Remelskis to Francis Wells. The email does not show any other recipients, and the Court concludes that it was not s ufficiently disseminated to qualify as an advertisement. IT IS ORDERED that Plaintiff's M otion for Reconsideration (D oc. #344) is granted in part and denied in part. DATED this 19th day of August, 2005.

Case 2:03-cv-02024-DGC

Document 386

-3Filed 08/19/2005

Page 3 of 3