Free Motion in Limine - District Court of Arizona - Arizona

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GREENBERG TRAURIG, LLP
ATTORNEYS AT LAW SUITE 700 2375 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016 (602) 445-8000

Steven M. Weinberg, SBN 016817, [email protected] Brian J. Schulman, SBN 015286, [email protected] Kimberly A. Warshawsky, SBN 022083, [email protected] Attorneys for Plaintiff Awareness Corporation and Third Party Defendants Allcock and Schmidt IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Awareness Corporation, Plaintiff, v. Group Vision International, L.L.C., et al., Defendants. Plaintiff Awareness Corporation ("Awareness") moves in limine pursuant to Rules 401 and 402 of the Federal Rules of Evidence to exclude at trial all evidence that is not relevant to the claims remaining in this matter following the Court's June 1, 2005 Order on the parties' respective Motions for Summary Judgment (the "June 1 Order"). Awareness' motion is supported by the following Memorandum of Points and Authorities, and the entire Court record in this case.1 No. CV03-2024-PHX-DGC AWARENESS CORPORATION'S MOTION IN LIMINE NO. 1 TO EXCLUDE CERTAIN IRRELEVANT EVIDENCE AT TRIAL

Awareness is mindful of the Court's observation that "[m]otions in limine typically are not required for bench trials." Order Setting Final Pretrial Conference at 3. However, Awareness believes that the parties and the Court will benefit from the efficiencies of having certain issues addressed prior to trial. Awareness further believes that it is necessary to reduce the scope of evidence that will be presented at trial, and have accordingly brought motions in limine only where necessary.

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2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

MEMORANDUM OF POINTS AND AUTHORITIES In its June 1, 2005 Order on the parties' various Motions for Summary Judgment (the "June 1 Order"), the Court granted summary judgment in favor of Awareness and against the Distributor Defendants on several counterclaims asserted against Awareness. Specifically, the Court dismissed the Distributor Defendants' alleged claims for tortious interference, Lanham Act violations, fraudulent misrepresentation, and unfair competition. The Court also dismissed several of the defendants' breach of contract claims, including claims for "incorrect" 1099 forms, incorrect shipping charges, "improperly calculated" sales taxes, and "discriminatory and retaliatory acts" ­ which the Distributor Defendants said included claims arising from Awareness' demand that they discontinue certain advertising. Inexplicably, though, and despite the Court's clear rulings in its June 1 Order, the Distributor Defendants have marked as proposed trial exhibits evidence related solely to the dismissed claims. "Whether evidence is relevant is a matter left to a trial court' discretion." Fallar v. s Compuware Corp., 202 F.Supp.2d 1067, 1081 (D. Ariz. 2002). "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Irrelevant evidence is not admissible at trial. See FED.R.EVID. 402. Furthermore, "relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." FED. R. EVID. 403. The following exhibits relate only to the dismissed claims, and are not otherwise related to any claims remaining in this action: Exhibits 380 (IRS forms 1099 from Awareness for each Distributor Defendant for each year they received commission checks from Plaintiff); 410 (Awareness Physicians' Desk Reference listings); 411 (Awareness

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Corporation Final Report, The Efficacy and Safety of Experience); 413 (printout of Awareness Corporation distributor sign-up sponsor designation page showing Kevin MacGregor as sponsor, dated November 20, 2003); 459 (Department of Health and Human Services Memorandum dated June 25, 2004); 460 (information regarding charge backs and "errors"); 462 (information regarding taxes charged in Texas); 466 (information provided by Remelski regarding tax calculations from 1999 to 2003); 473 (AwarenessLife website page dated October 30, 2003); 512 (Mattice's Awareness order receipts showing tax charges); 515 (Remelski invoices showing tax charges); 516 (Remelski advertising expense); 519 (Betts emails about sales tax); 526 (Betts' Awareness 1099 forms, dated 1996-2003); 528 (Betts' advertising expense report); 532 (MacGregors' advertising costs, dated 1999-2003); 538 (sales tax rates throughout the United States), 454 (duplicate of Exhibit 413, above); 547 (Remelski summary of alleged miscalculations on 1099 forms); 548 (Letter from City of Boulder to Paige Mattice); and 550 (Transcript of Frank Styger's radio show). These exhibits also do not make any remaining fact of consequence any more or less probable than it would otherwise be without such evidence. Accordingly, the above-listed exhibits should be excluded in their entirety pursuant to Rules 401 and 402 of the Federal Rules of Evidence. Awareness therefore asks that this Court enter an order in limine precluding the use of the above-listed exhibits at trial. Pursuant to the Case Management/Electronic Case Filing Administrative Policies and Procedures Manual G.1.a. and b., Awareness has submitted an electronic form of Order.

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2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

RESPECTFULLY SUBMITTED this 8th day of August, 2005. GREENBERG TRAURIG, LLP By: /s/ Kimberly A. Warshawsky Steven M. Weinberg Brian J. Schulman Kimberly A. Warshawsky Attorneys for Awareness Corporation and Third Party Defendants Allcock and Schmidt

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2375 EAST CAMELBACK ROAD, SUITE 700 PHOENIX, ARIZONA 85016 (602) 445-8000

CERTIFICATE OF SERVICE I hereby certify that on August 8, 2005, I electronically transmitted the attached document to the Clerk' Office using the CM/ECF System for filing and transmittal s of a Notice of Electronic Filing to the following CM/ECF registrants: Curtis D. Drew, Esq. 2342 North Pima Road Scottsdale, Arizona 85257-2405 [email protected] Attorney for Defendant Group Vision International, L.L.C. G. Gregory Eagleburger, Esq. The Eagleburger Law Group 2999 North 44th Street, Suite 303 Phoenix, Arizona 85018 [email protected] Attorneys for Distributor Defendants I hereby certify that on August 8, 2005, I served the attached document by facsimile and United States mail on the following, who are not registered participants of the CM/ECF System:

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/s/ J. David Smith

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