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Fitness Anywhere LLC v. Woss Enterprises LLC

United States District Court, N.D. California, San Jose Division

March 6, 2017

FITNESS ANYWHERE LLC, Plaintiff,
v.
WOSS ENTERPRISES LLC, Defendant.

          ORDER REGARDING MOTIONS IN LIMINE

          BETH LABSON FREEMAN United States District Judge

         Plaintiff Fitness Anywhere LLC (“TRX”) brings this lawsuit against Defendant WOSS Enterprises LLC (“WOSS”), alleging infringement of U.S. Patent No. 7, 044, 896 (the “'896 patent”), infringement of U.S. Trademark Registration Nos. 3, 255, 160, 3, 255, 161, and 2, 975, 844, unfair competition, and tortious interference with prospective economic relationships. See Amended Complaint ¶¶ 28-55, ECF 46. This Order addresses the parties' motions in limine. For the reasons explained below and on the record at the February 23, 2017 pretrial conference, the motions are decided as follows:

Plaintiff's Motion in Limine No. 1: WITHDRAWN BY STIPULATION.
Plaintiff's Motion in Limine No. 2: WITHDRAWN BY STIPULATION.
Plaintiff's Motion in Limine No. 3: GRANTED IN PART and DEFERRED IN PART.
Plaintiff's Motion in Limine No. 4: GRANTED.
Plaintiff's Motion in Limine No. 5: DENIED.
Defendant's Motion in Limine No. 1: GRANTED IN PART and DENIED IN PART.
Defendant's Motion in Limine No. 2: DENIED.
Defendant's Motion in Limine No. 3: DENIED.
Defendant's Motion in Limine No. 4: DENIED.
Defendant's Motion in Limine No. 5: DENIED.

         I.TRX'S MOTIONS IN LIMINE

         A. TRX's Motion in Limine No. 1 to Bar Dr. Glen Stevick from Testifying at Trial

         TRX's motion seeks to exclude Dr. Glen Stevick from testifying as an expert witness. Pl.'s MIL 1, ECF 156. However, the parties have since stipulated that WOSS will neither call Dr. Stevick as a witness nor introduce his reports at trial, and TRX has withdrawn its motion. ECF 178. Accordingly, TRX's Motion in Limine No. 1 is WITHDRAWN BY STIPULATION.

         B. TRX's Motion in Limine No. 2 to Bar Dr. Glen Stevick from Testifying at Trial Regarding his Second and Third Reports

         TRX's motion seeks to exclude Dr. Glen Stevick from testifying as an expert witness regarding the subject matter of his second and third expert reports. Pl.'s MIL 2, ECF 157. However, the parties have since stipulated that WOSS will neither call Dr. Stevick as a witness nor introduce his reports at trial, and TRX has withdrawn its motion. ECF 178. Accordingly, TRX's Motion in Limine No. 2 is WITHDRAWN BY STIPULATION.

         C. TRX's Motion in Limine No. 3 to Exclude Evidence or Argument in Support of an “Advice of Counsel” Defense

         TRX moves to exclude any evidence or argument in support of an “advice of counsel” defense to TRX's claim that WOSS willfully infringed claim 1 of the '896 patent. Pl.'s MIL 3, ECF 171. TRX argues that WOSS should be so precluded because it never identified an attorney in its Rule 26(a) disclosures, nor complied with Patent L.R. 3-7, which requires certain productions and disclosures for parties relying on an “advice of counsel” defense. Id. at 2-4.

         WOSS responds that TRX's motion is moot because WOSS has elected to not pursue an “advice of counsel” defense. Def.'s Opp. 3 at 1, ECF 184. WOSS also argues that, should TRX “open the door” by suggesting that WOSS should have but did not consult an attorney, a witness should be allowed to truthfully answer (including, if applicable, that (s)he did consult an attorney) and that doing so is not an “advice of counsel” defense. Id.

         Because WOSS does not dispute that it failed to make the prerequisite disclosures, the Court GRANTS TRX's Motion in Limine No. 3 to the extent that it seeks to preclude WOSS from presenting evidence in support of an “advice of counsel” defense. However, the Court will not categorically exclude questions for which the honest answer is that an attorney was involved. The Court must judge the propriety of such questions in context, and the parties are free to make objections and motions as appropriate. Accordingly, the Court DEFERS ruling on these issues at this stage. In addition, the parties are advised that certain questions and answers may waive the attorney-client privilege, and counsel bears the responsibility of protecting against this.

         D. TRX's Motion in Limine No. 4 to Bar Defendant from Referencing or Re- Litigating Any Issues Which Were Previously Resolved by This Court

         TRX moves to bar WOSS from referencing or attempting to re-litigate any issues that were previously resolved by this Court. Pl.'s MIL 4, ECF 172. In particular, TRX argues that WOSS should not be permitted to make claim construction arguments that are inconsistent with this Court's Order Construing Claims (ECF 97), including that “flexible portion having a loop” should be construed as “rigid loop.” Id. at 3-4. TRX also argues that WOSS should not be permitted to reference the Court's ruling on summary judgment, including the fact that the Court invalidated TRX's U.S. Patent No. 7, 806, 814 (the “'814 patent”) and found that WOSS did not infringe certain claims of the '896 patent and U.S. Patent No. 8, 043, 197 (the “'197 patent”). Id. at 4. TRX contends that none of these rulings are relevant to the remaining issues in the case, and that references to the Court's summary judgment rulings would be highly prejudicial. Id. at 4.

         WOSS responds that TRX's motion is premature, as the relevance and potential prejudice of these rulings depends on the context in which they are used at trial. Def.'s Opp. 4 at 1, ECF 185. In particular, WOSS urges that it is entitled to “broad latitude in impeaching witnesses” and the Court remains free to alter its rulings before trial, both of which may make it appropriate to reference or re-argue the Court's prior rulings. Id.

         The Court agrees with TRX that references to the Court's summary judgment rulings per se are highly prejudicial, and not relevant to the issues that remain to be tried. Accordingly, the Court GRANTS TRX's Motion in Limine No. 4 to the extent that it seeks to preclude WOSS from introducing the fact that the Court has previously ruled that the '814 patent is invalid and that certain claims of the '896 and '197 patents are not infringed. WOSS may acknowledge that the '814 patent and certain claims of the '896 and '197 patents are not in this case (e.g., by making statements such as “X patent is not in this trial, ” or “TRX owns X patent, but is not asserting it against WOSS”), but no more.[1]

         The Court also agrees with TRX that WOSS may not re-litigate the Court's claim constructions, or the Court's ruling at summary judgment that “claim 1 does not require the loop to be flexible.” Summ. J. Order 26, ECF 150. WOSS will be expected to present evidence and arguments at trial that comply with these constructions. As discussed in detail with respect to WOSS's Motion in Limine No. 2, infra, any attempt by WOSS to seek reconsideration of the Court's constructions at this point is untimely and inappropriate and, even if the Court were to reconsider its constructions, WOSS's arguments are incorrect on the merits. Accordingly, the Court also GRANTS TRX's Motion in Limine No. 4 to the extent that it seeks to preclude WOSS from re-litigating claim constructions (decided either by the Court's claim construction order or at summary judgment) or presenting evidence or arguments that are inconsistent with these constructions.

         E. TRX's Motion in Limine No. 5 to Bar WOSS from Introducing Testimony at Trial Regarding New Non-Infringement Theories

         TRX moves to bar WOSS from introducing non-infringement theories that it did not disclose in its responses to TRX's non-infringement interrogatory, Interrogatory No. 3. Pl.'s MIL 5, ECF 173. Specifically, TRX argues that WOSS's responses confine it to two theories: (1) the accused products do not contain a “flexible loop, ” and (2) the accused products are delivered “as a kit of separate components with instructions for assembly” and therefore do not contain “a main strap attached to an anchor.” Id. at 4. This, TRX contends, precludes WOSS from making non-infringement arguments relating to other claim elements, including “(i) a pair of ends separated by a length and a mechanism for adjusting said length; (ii) ...


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