Jones v. American Council on Exercise, H-15-3270. (2017)
Court: District Court, S.D. Texas
Number: infdco20170320420
Visitors: 18
Filed: Mar. 15, 2017
Latest Update: Mar. 15, 2017
Summary: ORDER GRAY H. MILLER , District Judge . Pending before the court is defendant American Council on Exercise's ("ACE") alternative motion to exclude portions of witness statements. Dkt. 26. The court notes that "a preliminary injunction proceeding is not subject to jury trial procedures" and that courts give "some leniency" with regard to evidentiary rules during the preliminary injunction stage. Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554 , 559 (5th Cir. 1987). Thus, while the cour
Summary: ORDER GRAY H. MILLER , District Judge . Pending before the court is defendant American Council on Exercise's ("ACE") alternative motion to exclude portions of witness statements. Dkt. 26. The court notes that "a preliminary injunction proceeding is not subject to jury trial procedures" and that courts give "some leniency" with regard to evidentiary rules during the preliminary injunction stage. Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554 , 559 (5th Cir. 1987). Thus, while the court..
More
ORDER
GRAY H. MILLER, District Judge.
Pending before the court is defendant American Council on Exercise's ("ACE") alternative motion to exclude portions of witness statements. Dkt. 26. The court notes that "a preliminary injunction proceeding is not subject to jury trial procedures" and that courts give "some leniency" with regard to evidentiary rules during the preliminary injunction stage. Fed. Sav. & Loan Ins. Corp. v. Dixon, 835 F.2d 554, 559 (5th Cir. 1987). Thus, while the court has carefully considered ACE's objections, it has done so with the understanding that plaintiff Michael Jones should be able to present his evidence in a more robust form by the time of trial.1 After considering the objections, response, reply, and the applicable law, the court finds that the objections should be SUSTAINED IN PART AND OVERRULED IN PART as outlined in the tables below.
I. OBJECTIONS TO STATEMENT OF CHAD LEIKER2
Paragraph Objections Ruling
2. Contains hearsay ("That's when Dr. Jones told me . . ."); Overruled
lacks foundation ("The name sounded new to me. . . .");
legal conclusion, improper lay opinion, improper expert
opinion, irrelevant, speculation, ("I believed `Medical
Exercise Specialist' to be exclusively associated with
Dr. Jones's course and certification."
4. Lacks foundation ("Dr. Jones's business was enjoying Overruled
rapid growth when I joined him.").
6. Lacks foundation, improper lay opinion, improper Overruled
expert opinion ("Dr. Jones's advertising was
remarkably effective.").
6.b. Lacks foundation ("People would constantly call Overruled
in . . .").
6.c. Lacks foundation ("We enjoyed extensive word-of-mouth Overruled
advertising . . ."); hearsay ("People would call or
write explaining . . .").
6.d. Lacks foundation ("After the conference was over, we Overruled
received a large number of sales.").
6.e. Hearsay (". . . he would tell the audience about the Sustained
Medical Exercise Specialist course and certification.").
7. Irrelevant ("The man worked crazy hard. . . . I was about Overruled
25 years old, and even I started to feel exhausted at the
amount of travel.").
8. Lacks foundation ("We sold out the vast, vast, vast Overruled
majority of our classes. And for those we didn't sell
out, they were still completely packed.").
9. Lacks foundation, speculation, hearsay. Overruled because
of lack of specificity
of objection
10. Irrelevant ("I saw a man who worked extraordinarily Sustained as to
hard to pour his life and soul . . . I felt deeply impressed speculation with
by the amount of time Dr. Jones spent building his regard to the
entire program from essentially nothing. . . . Like sentence about
anyone who's written a song or a book, I remember fearing the use of the
thinking how much the name and program he created name will destroy
must mean to Dr. Jones."); speculation, lacks Jones's business.
foundation, improper lay opinion, improper expert All other objections
opinion, legal conclusion ("I fear ACE using the name overruled.
will destroy his business. . . . ACE is the 900-pound
gorilla in the room. Based on my experience with him,
his potential-customer base is likely to be confused
because ACE is selling under the same Medical
Exercise Specialist name in the same exercise
industry.").
II. OBJECTIONS TO STATEMENT OF AMANDA HARRIS3
Paragraph Objections Ruling
3. Hearsay ("I was talking with a man named Bob Sustained as to the
Esquerre . . . He told me . . ."). last sentence, "He
told me that if I
wanted to up my
game, I needed to
contact Dr. Michael
Jones about a
program called the
Medical Exercise
Specialist."
Otherwise,
overruled.
4. Lacks foundation, improper lay opinion, improper expert Sustained as the
opinion, speculation ("No one had ever combined each sentence "It was
of those words in that particular way . . ."); irrelevant, completely unique
legal conclusion ("In my mind, the name Medical and very
Exercise Specialist referred only to Dr. Jones's program distinctive."
and certification."); speculation; legal conclusion, Otherwise,
improper lay opinion, improper expert opinion ("It was overruled.
completely distinct and very unique.").
5. Irrelevant ("I've never heard anyone using the name Overruled.
Medical Exercise Specialist other than referring to Dr.
Jones's program.").
6. Lacks foundation. Overruled.
7. Speculation ("I would be shocked if ACE did not know Overruled.
about Dr. Jones's Medical Exercise course and
program.").
8. Speculation, legal conclusion, improper lay opinion, Sustained as to
improper expert opinion, lacks foundation. speculation and
improper expert
opinion.
III. OBJECTIONS TO STATEMENT OF NANCY CHADWICK4
Paragraph Objections Ruling
3. Irrelevant, lacks foundation, improper lay opinion, Overruled.
improper expert opinion ("My opinion is that if you are
going to offer a course called "Medical Exercise
Specialist" it should be taught by medical
practitioners.").
4. Irrelevant, Speculation (". . . I've never heard anyone use Overruled.
the name `Medical Exercise Specialist' to refer to
anything besides Dr. Jones's course and certification.").
5. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation ("I think it is
preposterous to claim . . . that Dr. Jones is using a
generic or non-specific name."); hearsay ("A friend of
mine had a studio right beside mine. She'd told me she
was going through his course. . . ."); irrelevant.
7. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, ultimate facts ("ACE using the
same name is confusing. . . . Yet it's confusing because
they are the same name. It seems to me that they're
trying to play off Dr. Jones's goodwill."); irrelevant.
IV. OBJECTIONS TO STATEMENT OF DON ALLEY5
Paragraph Objections Ruling
3. Irrelevant, lacks foundation, improper lay opinion, Overruled.
improper expert opinion, legal conclusion ("In my mind,
"Medical Exercise Specialist" is the exclusive name of a
course and certification offered by Dr. Michael Jones.").
4. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, speculation ("The name sounded distinctive
(because as far as I could tell) Dr. Jones made it up.");
lacks foundation ("`Medical Exercise Specialist' was not
a term used in the industry to describe certifications . . .";
hearsay ("And my colleagues had told me . . .");
irrelevant, legal conclusion, improper lay opinion,
improper expert opinion, lacks foundation, speculation
("I believed him to be the exclusive provider of the
certification named "Medical Exercise Specialist.").
5. Lacks foundation, improper lay opinion, improper expert Overruled.
opinion ("Dr. Jones had an effective way of advertising
his course.").
6. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation,
hearsay ("I always inform them that Dr. Jones is the sole
provider of the course and certification."); lacks
foundation ("While I don't remember exactly how
many . . .").
7. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation (". . . I'm unaware of anyone
using `Medical Exercise Specialist' to refer to exercise or
fitness certifications generally.").
8. Legal conclusion, ultimate facts, lacks foundation, Sustained as to the
speculation ("Or was ACE stealing his brand?"). last sentence only.
Otherwise overruled.
9. Hearsay ("I have personally spoken . . . I told them the Overruled.
name of the course . . .").
10. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, speculation, ultimate facts, lacks foundation,
irrelevant.
V. OBJECTIONS TO STATEMENT OF JASON HODGE6
Paragraph Objections Ruling
4. Irrelevant, improper lay opinion, improper expert Overruled.
opinion, legal conclusion, lacks foundation, speculation
("In my mind, the name `Medical Exercise Specialist'
identifies one course and one certification: the ones
offered by Dr. Michael Jones.").
4.a. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation.
4.b. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation.
4.c. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation.
5. Irrelevant. Overruled.
6. Irrelevant, improper lay opinion, improper expert Overruled.
opinion, legal conclusion, lacks foundation, hearsay.
7. Illegal wiretapping of phone conversation with California Sustained as to
person under California law which requires two party sentence about
consent; speculation ("Even ACE's representative recording the call.
seemed confused."); improper consumer survey Otherwise,
methodology ("I felt very confused."). overruled.
8. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, speculation, lacks foundation, ultimate facts.
VI. OBJECTIONS TO STATEMENT OF GABE VALENCIA7
Paragraph Objections Ruling
4. Irrelevant, improper lay opinion, improper expert Overruled.
opinion, legal conclusion, lacks foundation, speculation
("I've always exclusively associated the name `Medical
Exercise Specialist' with the course and certification
offered by Dr. Michael Jones."); legal conclusion,
improper lay opinion, improper expert opinion, lacks
foundation, legal conclusion, speculation ("Before that,
I'd never heard the name Medical Exercise Specialist.
The name sounded totally unique and distinctive to me
. . . and I'd never heard one called Medical Exercise
Specialist. I believed Dr. Jones had simply made up the
name, which made me associate the name only with his
course and certification.").
5. Irrelevant, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation, legal conclusion
(". . . I've never heard anyone who used the name
Medical Exercise Specialist to generally refer to fitness
or exercise certifications. Before 2015, I'd never heard
anyone use the name Medical Exercise Specialist except
to reference the course taught by Dr. Jones.").
VII. OBJECTIONS TO STATEMENT OF TREVOR WICKEN8
Paragraph Objections Ruling
1. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
2. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
3. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
4. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746; hearsay.
5. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
5.a. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
5.b. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746; hearsay.
5.c. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746; hearsay.
5.d. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746; hearsay.
5.e. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
5.f. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
5[sic].a. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
5[sic].b. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
6[sic]. Irrelevant; Not an admissible unsworn statement, does Overruled.
not comply with 28 U.S.C. § 1746.
VIII. OBJECTIONS TO STATEMENT OF JOE MASIELLO9
Paragraph Objections Ruling
1. Not an admissible unsworn statement, does not comply Overruled. This is a
with 28 U.S.C. § 1746. sworn affidavit made
before a notary
public.
2. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746.
3. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746; irrelevant, improper lay opinion,
improper expect opinion, legal conclusion, lacks
foundation, speculation ("When I hear the phrase
`Medical Exercise Specialist,' I think only of the course
and certification offered by Dr. Michael Jones. . . . Even
before taking the course myself, I believed the Medical
Exercise Specialist exclusively referred to Dr. Jones's
course and certification."); legal conclusion, improper
lay opinion, improper expert opinion, speculation, lacks
foundation ("I thought `Medical Exercise Specialist' was
very unique name because, to the best of my knowledge,
no one else had used the designation `Medical Exercise
Specialist.'").
4. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746.
5. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746; irrelevant, lacks foundation.
IX. OBJECTIONS TO STATEMENT OF CYNTHIA MEALY10
Paragraph Objections Ruling
Entire email Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746; irrelevant, improper lay opinion,
improper expert opinion, lacks foundation, speculation,
legal conclusion ("My understanding is that the title
Medical Exercise Specialist is exclusive to those who
have completed the course work and passed the exams
from the American Academy of Health, Fitness and
Rehab Professionals.").
X. OBJECTIONS TO STATEMENT OF SHARON MOELIS11
Paragraph Objections Ruling
4. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation,
speculation("In my mind, the name `Medical Exercise
Specialist' has always exclusively meant the course and
certification offered by Dr. Jones. . . . exclusively
associated the name Medical Exercise Specialist with the
course and certification offered by Dr. Jones. . . . In the
years since, I'd never heard anyone use the name Medical
Exercise Specialist, other than to refer to Dr. Jones's
course and certification.").
5. Irrelevant, hearsay. Sustained as hearsay
as to the last
sentence only.
Otherwise,
overruled.
6. Irrelevant, improper lay opinion, improper expert Overruled.
opinion, legal conclusion, speculation ("I believe it is
completely possible for them to describe their program
without using the Medical Exercise Specialist name that
Dr. Jones invented.").
7. Irrelevant Overruled.
8. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation ("In my mind,
ACE is undercutting the value of Dr. Jones Medical
Exercise Specialist certification. . . . I believe that there is
an extremely high likelihood of confusion . . .").
XI. OBJECTIONS TO STATEMENT OF JANICE BIRD12
Paragraph Objections Ruling
3. Hearsay ("They told me it was offered by Dr. Michael Overruled.
Jones.); legal conclusion, improper lay opinion, improper
expert opinion, lacks foundation ("I thought it was very
unique."); irrelevant, improper lay opinion, improper
expert opinion, legal conclusion, speculation, lacks
foundation ("I only thought of Dr. Jones' course and
certification when I saw the name Medical Exercise
Specialist.").
8. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation, ultimate facts,
irrelevant (". . . I perceive Dr. Jones's Medical Exercise
Specialist certification as less valuable. Now Dr. Jones
cannot control the quality of his brand because ACE has
copied the name of Dr. Jones' course and I fear
confusion is highly likely because it's the same name. In
my eyes all of this harms the value of the Medical
Exercise Specialist brand that Dr. Jones poured his heart
and soul into developing.").
XII. OBJECTIONS TO STATEMENT OF SUSAN DUTTGE13
Paragraph Objections Ruling
3. Irrelevant, improper lay opinion, improper expert Sustained as to the
opinion, legal conclusion, lacks foundation, speculation first two sentences of
("`Medical Exercise Specialist' is absolutely, the paragraph.
unequivocally, without a doubt the name that solely Otherwise,
identifies the course and certification offered by Dr. overruled.
Jones. . . . The phrase stuck with me because it had
substance and was nothing I'd ever heard of before or
seen to be available before.").
4. Irrelevant, improper lay opinion, improper expert Sustained as
opinion, legal conclusion, lacks foundation, speculation. improper lay opinion
as to the first
sentence. Otherwise
overruled.
5. Ultimate facts, legal conclusion, improper lay opinion, Sustained as to the
improper expert opinion, lacks foundation, speculation, first and last
irrelevant. sentence.
6. Ultimate facts, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation
("I also think Dr. Jones's `Medical Exercise Specialist'
name is compromised and less valuable because of the
high likelihood that people will be confused. . . . I could
be confused with ACE's people. I believe that completely
undercuts the value of my Medical Exercise Specialist
certification. It's just wrong. ACE should stop using the
name.").
7. Ultimate facts, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation.
8. Ultimate facts, legal conclusion, improper lay opinion, Sustained as to the
improper expert opinion, lacks foundation, speculation last sentence.
("Now that ACE is using the same name, I can be Otherwise overruled.
confused with ACE's students. I believe this undercuts
the value of my Medical Exercise Specialist certification
with Dr. Jones and is unacceptable. It is theft of a name,
a title and Dr. Jones's course work identity beginning in
1994.").
9. Ultimate facts, legal conclusion, improper lay opinion, Sustained.
improper expert opinion, lacks foundation, speculation.
XIII. OBJECTIONS TO STATEMENT OF KELLI CALABRESE14
Paragraph Objections Ruling
5. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation,
speculation("I've always considered the name `Medical
Exercise Specialist' to refer exclusively to the course and
certification offered by Dr. Michael Jones, even before I
enrolled. . . . And every time I saw the name `Medical
Exercise Specialist,' it specifically identified Dr. Jones's
course and certification. Even since enrolling, I've never
heard anyone use the name `Medical Exercise Specialist'
except when talking specifically about Dr. Jones's course
and certification (until ACE started selling a Medical
Exercise Specialist program and certificate in 2015).");
legal conclusion, improper lay opinion, improper expert
opinion, lacks foundation, speculation ("I'd never heard
`Medical Exercise Specialist' before-the name sounded
unique to me because it appeared totally made up by Dr.
Jones.").
7. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation
("I believe it is fairly well known that the `Medical
Exercise Specialist' refers to the course and certification
offered by Dr. Jones. . . . I perceive Dr. Jones as having
built a great reputation for the
Medical Exercise Specialist name.").
8. Improper consumer survey methodology ("I personally Overruled.
find it confusing . . ."); legal conclusion, improper lay
opinion, improper expert opinion, lacks foundation,
speculation ("I think confusion is very likely. It's the
same name. In the same industry. Targeting roughly the
same group of people. And the course appears to be
superficially similar.").
9. Ultimate facts, irrelevant; legal conclusion, improper lay Sustained as to "it's
opinion, improper expert opinion, lacks foundation, not some generic
speculation (". . . it's not some generic term . . ."). term." Otherwise,
overruled.
XIV. OBJECTIONS TO STATEMENT OF SCOTT JACKSON15
Paragraph Objections Ruling
4. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation
("In my mind, `Medical Exercise Specialist' refers
exclusively the course and certification offered by Dr.
Jones."); legal conclusion, improper lay opinion,
improper expert opinion, lacks foundation, speculation
("But as someone in the industry, it's a very distinct
name—in fact, I always believed that Dr. Jones invented
the name `Medical Exercise Specialist.'"); ultimate facts,
legal conclusion, improper lay opinion, improper expert
opinion, lacks foundation, speculation ("And to my
knowledge, Dr. Jones is the only one who's ever used the
name `Medical Exercise Specialist,' at least before ACE
stole the name from in 2015.").
5.a., b. Hearsay. Overruled.
6. Ultimate facts, irrelevant, legal conclusion, improper lay Sustained as to
opinion, improper expert opinion, lacks foundation, speculation with
speculation. regard to the last
sentence, "Although
you can't tell it by
just looking at
ACE's website,
ACE's certification
is far less substantial
than Dr. Jones'.
Otherwise,
overruled.
7. Irrelevant. Overruled.
8. Hearsay ("My trainers told me. . . ."); legal conclusion, Overruled.
improper lay opinion, improper expert opinion, lacks
foundation, speculation, ("So yes, there will be
confusion . . .").
XV. OBJECTIONS TO STATEMENT OF ROGER MICHAEL BABOWAL, II16
Paragraph Objections Ruling
2. Not qualified as brand or marketing expert Overruled.
3. Lacks foundation. Overruled.
4. Lacks foundation. Overruled.
5. Lacks foundation. Overruled.
6. Lacks foundation. Overruled.
7. Lacks foundation. Overruled.
8. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation,
speculation("Dr. Jones had used the Medical Exercise
Specialist brand exclusively to my knowledge, so I
assumed he'd sold the business, or licensed his Medical
Exercise Specialist program to ACE.).
9. Legal conclusion, improper lay opinion, improper expert Sustained as to
opinion, lacks foundation, speculation. speculation
regarding the last
sentence, "ACE has
so many more
resources that they
could easily
overwhelm him and
confuse people into
thinking they are the
only Medical
Exercise Specialist
course and
certification."
Otherwise,
overruled.
XVI. OBJECTIONS TO STATEMENT OF JO-ANN JAMES17
Paragraph Objections Ruling
Whole Irrelevant, violates 28 U.S.C. § 1746. Overruled.
statement
XVII. OBJECTIONS TO STATEMENT OF WILLIAM SMITH18
Paragraph Objections Ruling
3. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation
("In my mind, the name `Medical Exercise Specialist'
exclusively refers to the course and certification offered
by Dr. Michael Jones"); legal conclusion, improper lay
opinion, improper expert opinion, lacks foundation,
speculation ("When I first saw the name Medical
Exercise Specialist, I thought it was a very unique
name.").
4. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation
("Again, in my mind, the name Medical Exercise
Specialist exclusively identifies Dr. Jones as the source
of the course and certification.").
5. Irrelevant. Overruled.
6. Hearsay, irrelevant. Overruled.
7. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation.
XVIII. OBJECTIONS TO STATEMENT OF BOB ESQUERRE19
Paragraph Objections Ruling
1. Not an admissible unsworn statement, does not comply There is no date on
with 28 U.S.C. § 1746 (not dated). the declaration.
However, this issue
has been cured
because he
incorporated the
declaration into a
dated expert report.
Objection overruled.
2. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated).
3. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated); Irrelevant, legal
conclusion, improper lay opinion, improper expert
opinion, lacks foundation, speculation ("Since I first
heard it, I've always believed the name "Medical
Exercise Specialist" exclusively identified the course and
certification offered by Dr. Michael Jones."); hearsay
("One of the trainers at Equinox (named Peter Charles)
mentioned in a meeting that he'd met Dr. Jones. Dr.
Jones offered a course and certification called the
"Medical Exercise Specialist." I'd never heard anyone
use the name "Medical Exercise Specialist" before. I was
interested—could Equinox trainers could gain a
competitive advantage by enrolling? I set up a phone call
with Dr. Jones. We talked about what kind of content he
offered.").
4. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated); irrelevant.
5. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated); lacks foundation ("Dr.
Jones's Medical Exercise Specialist course and
certification was advertised through word-of-mouth, and
that strategy was effective to spread the name throughout
the industry.").
6. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated), irrelevant, hearsay.
6.a. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated), irrelevant.
6.b. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated), hearsay, irrelevant.
6.c. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated), irrelevant, hearsay.
6.d. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated), irrelevant.
7. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated); Irrelevant, legal
conclusion, improper lay opinion, improper expert
opinion, lacks foundation, speculation.
8. Not an admissible unsworn statement, does not comply Sustained as to
with 28 U.S.C. § 1746 (not dated); irrelevant, lacks hearsay for sentence,
foundation, hearsay. "I was eventually
told that ACE had
killed the CES
program."
Otherwise overruled.
9. Not an admissible unsworn statement, does not comply Overruled as to not
with 28 U.S.C. § 1746 (not dated); irrelevant, legal being an admissible
conclusion, speculation. unsworn statement.
Otherwise,
sustained.
10. Not an admissible unsworn statement, does not comply Overruled.
with 28 U.S.C. § 1746 (not dated); legal conclusion,
improper lay opinion, improper expert opinion, lacks
foundation, speculation ("I believe that there's a very
high likelihood of confusion. . . . his potential customers
are likely to be confused . . ."); improper consumer survey
methodology ("I felt shocked and confused.").
XIX. OBJECTIONS TO STATEMENT OF FOTIOS PANTAZIS20
Paragraph Objections Ruling
Whole Hearsay, legal conclusions, lacks foundation, Overruled.
statement speculation, irrelevant, not an admissible unsworn
statement, does not comply with 28 U.S.C. § 1746.
XX. OBJECTIONS TO STATEMENT OF PHIL GODFREY21
Paragraph Objections Ruling
3. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation
("In my mind, Medical Exercise Specialist is the
exclusive brand name for the course and certification
offered by Dr. Michael Jones. . . . I quickly came to
believe that the name Medical Exercise Specialist only
identified the course and certification offered by Dr.
Jones."); legal conclusion, improper lay opinion,
improper expert opinion, lacks foundation, speculation
("As far as I'm aware, no one had ever used the name
Medical Exercise Specialist before Dr. Jones—it was a
name that he'd invented.").
4. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation ("I felt Medical
Exercise Specialist was (and is) a very unique name
because dozens of certifications existed but none used
that name. . . . In my mind, the titles in this industry
identify the organization. So that's why I exclusively
associated Dr. Jones with the Medical Exercise Specialist
certification—it was a unique name that only he had
used.").
5. Hearsay. Overruled.
6. Legal conclusion, improper lay opinion, improper expert Sustained as legal
opinion, lacks foundation, speculation ("It is extremely conclusion as to the
confusing for ACE to use the name `Medical Exercise last two sentences:
Specialist'."); ultimate facts, legal conclusion, improper "The name belongs
consumer survey methodology ("I found it extremely to Dr. Jones. How
confusing when I first saw it, and even wondered if Dr. can ACE legally be
Mike had somehow become involved with ACE. The using it?"
name belongs to Dr. Jones. How can ACE legally be Otherwise,
using it?"). overruled.
7. Legal conclusion, ultimate facts, improper lay opinion, Sustained as
improper expert opinion, lacks foundation, speculation. speculation as to the
first sentence, "I
believe that ACE
copied the Medical
Exercise Specialist
name from Dr.
Jones." Otherwise,
overruled.
XXI. OBJECTIONS TO STATEMENT OF BRIAN RICHEY22
Paragraph Objections Ruling
3. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation.
3.a. Irrelevant, legal conclusion, improper lay opinion, Overruled.
improper expert opinion, lacks foundation, speculation,
irrelevant, hearsay.
3.b. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation ("It was a unique
name . . ."); irrelevant.
3.c. Hearsay. Overruled.
3.d. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation.
4. Hearsay. Overruled.
5. Irrelevant. Overruled.
6. Irrelevant, hearsay. Overruled.
7. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation, ultimate facts.
8. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation.
9. Legal conclusion, improper lay opinion, improper expert Overruled.
opinion, lacks foundation, speculation.
10. Speculation, irrelevant, lacks foundation. Sustained.
XXII. CONCLUSION
In sum, ACE's objections are SUSTAINED IN PART AND OVERRULED IN PART.
FootNotes
1. The court hopes that ACE will tailor its specific objections and narrow them when it is time for the court to make its pre-trial evidentiary rulings, rather than employ the "laundry list" approach adopted in its present motion.
2. Leiker's declaration may be found at docket entry 23, exhibit 2A at 9-11.
3. Harris's affidavit may be found at docket entry 23, exhibit 2A at pages 19-20.
4. Chadwick's affidavit may be found at docket entry 23, exhibit 2B at pages 1-4.
5. Alley's affidavit may be found at docket entry 23, exhibit 2B at pages 12-13.
6. Hodge's declaration may be found at docket entry 23, exhibit 2A at pages 31-33.
7. Valencia's declaration may be found at docket entry 23, exhibit 2A at pages 27-28.
8. An email from Wicken to Jones is contained at docket entry 23, exhibit 2B at pages 20-22.
9. Masiello's affidavit may be found at docket entry 23, exhibit 2A at pages 29-30.
10. Mealy's email to Jones an be found at docket entry 23, exhibit 2B at page 23.
11. Moelis's declaration may be found at docket entry 23, exhibit 2A at pages 25-26.
12. Bird's declaration may be found at docket entry 23, exhibit 2A at pages 34-35.
13. Duttge's declaration may be found at docket entry 23, exhibit 2A at pages 23-24.
14. Kelli Calabrese's declaration may be found at docket entry 23, Exhibit 2A at pages 6-8.
15. Jackson's declaration may be found at docket entry 23, exhibit 2A at pages 16-18.
16. Babowal's declaration may be found at Docket entry 23, Exhibit 2A at pages 12-15.
17. James's email may be found at docket entry 23, exhibit 2B at page 24.
18. Smith's declaration may be found at docket entry 23, exhibit 2B at pages 18-19.
19. Bob Esquerre's declaration may be found at docket entry 23, exhibit 2A at 1-5.
20. Pantazis's email may be found at docket entry 23, exhibit 2B at 26-28.
21. Godfrey's affidavit may be found at docket entry 23, exhibit 2A at pages 21-22.
22. Richey's affidavit may be found at docket entry 23, exhibit 2B at pages 14-16.
Source: Leagle
