United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL, CHIEF JUDGE
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.
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.
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.
Testimony of TimberStone Employees
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
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).
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. 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).
“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 . . . .”).
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.
Testimony of Ms. Webster
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