Free Response to Motion - District Court of Arizona - Arizona

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

G. Gregory Eagleburger, #002695 The Eagleburger Law Group 2999 N. 44th Street, Suite 303 Phoenix, Arizona 85018 (602)840-6533 Fax (602)808-9402 Attorney for Individual Defendants

IN THE UNITED STATES DISTRIC COURT DISTRICT OF ARIZONA

Awareness Corporation, Plaintiff, v. GROUP VISION INTERNATIONAL, L.L.C., a Michigan limited liability company; KELLY MATTICE and PAIGE MATTICE, husband and wife; KEVIN and CHERYL MACGREGOR, husband and wife dba THE LIFE TREE; LYNN and RENIE REMELSKI; and DAVID and SUZANNE BETTS, Defendants.
And related cross claims and third party actions.

Case No. CV03-2024-DGC INDIVIDUAL DEFENDANTS RESPONSE TO AWARENESS' MOTION IN LIMINE NO. 1

Individual Defendants hereby respond to Awareness' Motion in Limine No. 1 to Exclude Certain Irrelevant Evidence at Trial and respectfully contend that such Motion on its face shows that the objections are to relevancy and not to exclude totally extraneous matters.

25 26 27 28 Case 2:03-cv-02024-DGC Document 380 Filed 08/15/2005 Page 1 of 6

This Response is further supported by the following Memorandum of Points and Authorities and the entire Court record in this case.

1 2 3 4 5 6 7 8 9

MEMORANDUM OF POINTS AND AUTHORITIES The Individual Defendants agree that no issues other than those set forth as triable issues by the Court in its June 1, 2005 Order (Docket 341, p.31) are relevant and have themselves noted in the Proposed Joint Pre-trial Order where several Awareness issues are non-triable. The Motion itself is based upon Rules 401 and 402 of the Federal Rules of Evidence and relate to relevancy of exhibits. Relevancy objections are usually not the subject of motions in limine especially in bench trials because of the need to evaluate the

10 11 12 13 14 15 16 17 18 19 20

admissibility of such under all the trial evidence. There is no valid reason for taking these matters up before trial, however, the Individual Defendants have set forth below, the relevancy of the exhibits complained of by Awareness. 1. Exhibit 380 (1099's for Awareness) are evidence of miscalculated and

unpaid commissions. 2. Exhibit 411 (Awareness Report of Efficiency and Safety of Experience) is

evidence of Awareness knowledge of Senna in its products prior to July 2003 and failure to advise its distributors of such.

21 22 23 24 25 26 27 28 Case 2:03-cv-02024-DGC Document 380 -2Filed 08/15/2005 Page 2 of 6

3.

Exhibit 413 (Distributor sign-up page showing Kevin MacGregor as

sponsor) is evidence of Awareness' use of Trade Secrets of MacGregor and Awareness' direct sales through the use of Macgregor's' name after he terminated. 4. Exhibit 459 (Department of Health and Human Services Memorandum

dated June 25, 2004) is evidence that not only did Awareness know they had to abide by

1 2 3 4 5 6 7 8 9

FDA requirements, they did not notify FDA that Senna was in Experience until one (1) year after discovery. 5. Exhibit 460 (information on charge backs and errors). This is evidence of

miscalculation of commissions, late shipping and customer dissatisfaction with Awareness resulting in decrease in sales. 5. Exhibit 462 (information regarding taxes in Texas). This is evidence of

miscalculation of commissions because the taxes increased costs when no taxes were due to Texas residents and reasons why customers may have stopped buying Awareness

10 11 12 13 14 15 16 17 18 19 20

product. 6. commissions. 7. Exhibit 473 (Awareness website dated October 30, 2003). This is evidence Exhibit 466 (Remelski Tax Calculations) is evidence of miscalculation of

that after July 2003 Awareness was still representing that the new Awareness Experience (with Senna) was clinically tested by the Awareness Research Center when no tests were done on the new Experience and shows negligence in the representations as to the Awareness products. 8. Exhibit 512 (Mattice Order Receipts). This is evidence of miscalculation of

21 22 23 24 25 26 27 28 Case 2:03-cv-02024-DGC Document 380 -3Filed 08/15/2005 Page 3 of 6

commissions. 9. Exhibit 515 (Remelski's invoices showing tax charges). This is evidence

of miscalculation of commissions and a reason for customer dissatisfaction resulting in loss of sales to Awareness.

1 2 3 4 5 6 7 8 9

10.

Exhibit 516 (Remelski advertising expense). This is evidence as to sales

efforts which were unilaterally stopped by Awareness resulting in loss of sales to Awareness thereby showing that Awareness' damage claim is not valid. 11. Exhibit 519 (Betts email about sales tax). This is evidence of customer

dissatisfaction with Awareness resulting in loss of sales caused not by the Individual Defendants but by Awareness. 12. Exhibit 526 (Betts 1099 forms). This is evidence of miscalculation or

failure to pay commissions.
10 11 12 13 14 15 16 17 18 19 20

13.

Exhibit 528 (Betts advertising expense report). This is evidence of the

sales efforts which were stopped by Awareness resulting in a loss of sales to Awareness and showing a reason for decline in Awareness revenue not caused by the Individual Defendants. 14. Exhibit 532 (MacGregors Advertising Costs). This is evidence of the sales

efforts which were stopped by Awareness resulting in a loss of sales to Awareness and showing a reason for decline in Awareness revenue not caused by the Individual Defendants. 15. Exhibit 538 (Sales Tax rates throughout the United States). This is

21 22 23 24 25 26 27 28

evidence of why distributors and customers were dissatisfied with Awareness resulting in loss of sales to Awareness caused by Awareness' own acts. 16. 413. 17. Exhibit 547 (Remelski summary of miscalculation on 1099 forms). This is Exhibit 454 (sic 545). This is a duplicative of only one page of Exhibit

evidence of miscalculation or non-payment of commissions.
Case 2:03-cv-02024-DGC Document 380 -4Filed 08/15/2005 Page 4 of 6

1 2 3 4 5 6 7 8 9

18.

Exhibit 548 (Letter from City of Boulder to Paige Mattice).

This is

evidence of miscalculation of commissions and reason for distributor and customer dissatisfaction with Awareness resulting in loss of sales to Awareness. 19. Exhibit 550 (Transcript of Frank Styger's radio show). This is evidence

that Awareness did not stop all radio advertisement of Awareness Product as contended in Awareness' exhibits and that the use of certain phrases and information about health issues was taught to the Individual Defendants by Awareness in contravention to Awareness claims of deliberate falsehood by the Individual Defendants.

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Therefore Individual Defendants contend that such Motion be denied. RESPECTFULLY SUBMITTED this 15th day of August, 2005. THE EAGLEBURGER LAW GROUP By: /s/ G. Gregory Eagleburger Attorney for Individual Defendants

The ORIGINAL of the foregoing electronically filed with the Clerk of the Court this 15th day of August, 2005 and a COPY hand-delivered to: The Honorable David G. Campbell U. S. District Court of Arizona 401 West Washington Phoenix, Arizona 85003-2118 And a mailed to: Steven M. Weinberg, Esq. Greenberg Traurig, LLP 2375 E. Camelback Rd., Suite 700 Phoenix, AZ 85016 Attorneys for Plaintiff
Case 2:03-cv-02024-DGC Document 380 -5Filed 08/15/2005 Page 5 of 6

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

Curtis D. Drew, Esq. 2342 N. Pima Scottsdale, AZ 85257-2405 Attorney for Group Vision International, LLC
/s/ Jill Robinson

Case 2:03-cv-02024-DGC

Document 380

-6Filed 08/15/2005

Page 6 of 6