Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Idaho Golf Partners, Inc. v. TimberStone Management, LLC

United States District Court, D. Idaho

September 16, 2016

IDAHO GOLF PARTNERS, INC., Plaintiff,
v.
TIMBERSTONE MANAGEMENT, LLC., Defendant. TIMBERSTONE MANAGEMENT, LLC., Counterclaimant,
v.
IDAHO GOLF PARTNERS, INC., Counterdefendant.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL, CHIEF JUDGE

         INTRODUCTION

         Pending before the Court is Plaintiff-Counterdefendant Idaho Golf Partners, Inc.'s motion in limine (Dkt. 62) in which Plaintiff seeks to preclude Defendant from introducing evidence or testimony at trial referencing: (1) telephone calls from anonymous persons to TimberStone Golf Course, as inadmissible hearsay, and (2) settlement offers or statements made during settlement discussions or mediation proceedings, pursuant to Federal Rule of Civil Procedure 68 and Federal Rule of Evidence 408. The Court takes up only issue (1), the hearsay argument, and will issue a later decision addressing the issue of settlement offers.

         ANALYSIS

         Plaintiff seeks to preclude Defendant from introducing “evidence referring to telephone calls from ‘anonymous' callers [to TimberStone Golf Course] to show consumer confusion.” Pl.'s Mot. in Limine at 2-3, Dkt. 62. Plaintiff argues that such evidence of confused golfers, offered through the testimony of TimberStone employees, is inadmissible hearsay and inherently unreliable, given Plaintiff's inability to cross-examine the callers. Id. Defendant counters that such testimony is not hearsay, as it is not offered for the truth of the matter asserted, or if it is, falls within the state of mind exception of Federal Rule of Evidence 803(3). Def.'s Opp'n at 2-5, Dkt. 83.

         There appear to be two discrete categories of employee testimony concerning phone calls and visits from confused golfers: (1) direct testimony from TimberStone employees who interacted with confused customers; and (2) testimony of Ms. Webster, co-owner of TimberStone Golf Course, who obtained reports from TimberStone employees about confused golfers.

         1. Testimony of TimberStone Employees

         Plaintiff argues that testimony of TimberStone employees regarding statements by allegedly confused golfers is inadmissible hearsay. These statements fall generally into two categories-those demonstrating confusion and those asserting it.

         Employee testimony about customer interactions merely demonstrating confusion (e.g., testimony about misdirected calls) is not hearsay because it is not offered for the truth of the matter asserted, but rather to show the declarant's confusion. See Fed. R. Evid. 801(c)(2); see, e.g., Conversive, Inc. v. Conversagent, Inc., 433 F.Supp.2d 1079, 1091 (C.D. Cal. 2006); accord CFE Racing Prods., Inc. v. BMF Wheels, Inc., 793 F.3d 571, 579-81, 589 (6th Cir. 2015) (testimony regarding consumer confusion not offered for the truth of the matter asserted, but rather was probative of customer's confusion); Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 719 (3d Cir. 2004) (same); Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 804 (4th Cir. 2001); Fun- Damental Too, Ltd. v. Gemmy Industries Corp., 111 F.3d 993, 1003-04 (2d Cir. 1997) (same); Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d 1155, 1160 n. 10 (5th Cir. 1982) (same).

         Employee testimony about statements by golfers asserting confusion (e.g., golfer's statement such as “I was confused”), though offered for the truth of the matter asserted, may nonetheless be admissible under the hearsay exception for then-existing state-of-mind.[1] See Fed. R. Evid. 803(3); Lahoti v. Vericheck, Inc., 636 F.3d 501, 509 (9th Cir. 2011) (admitting, under the state-of-mind exception, testimony from company representatives about calls from its customers complaining that they were confused); 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 23:15 (4th ed. Supp. 2016) (noting that the “majority of courts” agree).

         The “state-of-mind” exception may not always apply, however. For example, the Court is not persuaded that a golfer's follow-up conversation with TimberStone- reporting prior confusion of the golf courses-would be admissible as a statement of the declarant's then-existing state of mind, if sufficient time had passed from the moment of alleged confusion. See, e.g., JL Beverage Co., LLC v. Jim Beam Brands Co., No. 13-17382, 2016 WL 3770484, at *9 (9th Cir. July 14, 2016) (distinguishing Lahoti on the grounds that the conversations at issue did not occur with customers that were “currently confused and seeking information about JL Beverage; rather, the individuals were reporting, after the fact, that they had mistaken two products”). This is consistent with the principle that a statement offered under Rule 803(3) “must be contemporaneous with the mental state sought to be proven.” Weinstein's Federal Evidence § 803.05 (2015); see also United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir. 1980), overruled on other grounds by United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc) (“The more time that elapses between the declaration and the period about which the declarant is commenting, the less reliable is his statement, because the greater chance there is that his memory is erroneous . . . [and the] greater the circumstances for misrepresentation . . . .”).

         The court therefore denies Plaintiff's motion to the extent that it seeks a general prohibition on TimberStone employee testimony regarding confused customers. The Court concludes that statements demonstrating confusion are not hearsay because they are not offered for their truth. The Court will determine the admissibility of any statements asserting confusion on a case-by-case basis during trial. Defendant is free, of course, to raise an appropriate objection once the nature of the proffered evidence is clear and the court has an evidentiary context in which to determine whether the evidence falls within Rule 803(3) or another applicable exception to the hearsay rule.

         2. Testimony of Ms. Webster

         Defendant argues, and the Court agrees, that the testimony of Ms. Webster regarding customer interactions contains an additional level of hearsay. Pl.'s Mot. in Limine at 3, Dkt. 62. The first level consists of the golfer's statements to a TimberStone employee. Such statements must be analyzed under the framework above and may be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.