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Wal-Mart Stores, Inc. v. Cuker Interactive, LLC

United States District Court, W.D. Arkansas, Fayetteville Division

April 6, 2017




         Currently before the Court are Defendant Cuker Interactive, LLC's ("Cuker") Motion in Limine filed on December 2, 2016 (Doc. 186) and Unredacted Brief in Support (Doc. 187-1), and Plaintiff Wal-Mart Stores, Inc.'s ("Walmart") Response in Opposition (Doc. 192). Cuker's Motion seeks liminal relief on a wide variety of discrete issues. As further explained below, Cuker's Motion is GRANTED IN PART AND DENIED IN PART.

         1. Exclusion of pejorative words.

         Cuker asks the Court to prohibit Walmart's attorneys from referring to Adel Atalla's son by his full name "Osama" instead of the name "Sam, " which is apparently, what his father calls him, see Doc. 186-2, pp. 6-7, and what he goes by in public, see Doc. 187-1, p. 2. Cuker contends Sam's full name of Osama has no probative value, and that referring to him by that name would have the potential of inciting bias against Cuker, presumably because it is a name shared by the mastermind of the September 11, 2001 terroristic attacks on the World Trade Center in New York City. Walmart opposes Cuker's request, arguing that it is improper because "[a]pparently Cuker believes that the proper full name of a human being is a 'pejorative word, ' or that a Western District of Arkansas jury will be so negatively influenced by a Middle Eastern name that the name should be westernized." (Doc. 192, p. 3). Walmart has provided zero evidence or explanation of why it would need to refer to Sam by his full name instead of the name that he ordinarily uses, though the Court can imagine that there may be situations where that would be appropriate-for example, when referring to a line on a document in evidence where the name is written thus.

         The Court will stop short a blanket prohibition on the use of Sam's full first name because the Court cannot envision every possible scenario where it could potentially become relevant. But the Court will prohibit Walmart from making any gratuitous references to Sam's full first name, on the grounds that such references would be substantially more unfairly prejudicial than probative. See Fed. R. Evid. 403. As for what constitutes "gratuitous" in any given situation, the Court will simply have to wait for the context at trial, but would ask the attorneys and witnesses to use their common sense and to look to their basic sense of human decency for guidance. Counsel must approach the bench and seek a ruling in advance, if they believe the context at trial establishes a non-gratuitous basis to warrant the making of any such references.

         Cuker also asks the Court to preclude Walmart from making statements to the effect "that a verdict for Cuker would be like winning the lottery, jackpot justice, any other references to a game of chance, or that Cuker seeks to cause harm to Walmart with a verdict." (Doc. 187-1, p. 2). Cuker has not pointed the Court towards any specific instances or evidence of such statements and in the absence of a particular remark the Court will not speculate at this time as to the potential prejudicial effect. Counsel must obtain the Court's permission prior to making any lottery/jackpot type arguments, or substantially similar remarks, in front of the jury.

         2. Exclusion of prejudicial statements regarding Cuker's counsel.

         Cuker asks the Court to prevent Walmart from "referring to the fact that Cuker had previous counsel who withdrew from its representation, or any topics related thereto, " as irrelevant and highly prejudicial under Rule 403. See Id. at 2-3. Walmart responds that it "does not intend to unduly draw attention to the fact that Cuker was formerly represented by other counsel, " but that "it is unavoidable that this fact will come to the jury's attention, " for example, if videotaped depositions are introduced that were attended only by Cuker's original counsel in this case. (Doc. 192, p. 3). Once again, the appropriateness of such a reference will depend on the context in which it is made, and the Court will not be able to offer guidance at this time that is any more specific than to say generally that Walmart should adhere to its promise not "to unduly draw attention" to these facts.

         3. Exclusion of references to Walmart's economic impact on this community.

         Cuker argues that "Walmart should not discuss its philanthropic activities within the Northwest Arkansas community or imply that a judgment against Walmart could adversely impact those activities in the future." (Doc. 187-1, p. 3). Walmart "agrees with Cuker that reputational evidence under Rule 405(a) . . . does not belong in this case." (Doc. 192, p. 4). So does the Court, so it will grant Cuker's request that such references be excluded.

         4. Exclusion of references to Cuker's finances.

         Cuker asks the Court to prevent Walmart from making any references to Cuker's financial condition, because it "has no bearing on this case." (Doc. 187-1, p. 3). Walmart disagrees, and argues that some reference to Cuker's financial condition will be necessary in order to "show the value of what Cuker delivered to Walmart, " and thereby defend itself against Cuker's claims for damages that exceed the price of the contract, for example, by arguing that "Cuker's total damage claim for four months of work is more than its annual gross revenues." (Doc. 192, p. 4).

         Although the Court will not grant the blanket form of relief that Cuker is seeking, it will address some of the specific examples presented in the briefing. The Court agrees with Walmart that "[e]vidence of other contracts, the hourly rates that Cuker charges, how much time was spent on the project, and other matters relevant to the issue of value should not be excluded." Id. But, with regard to another example, the Court finds that the salaries or commissions paid by the parties to their individual employees are either not relevant at all, or that such evidence should otherwise be excluded under Rule 403. Next, the Court finds the probative value of comparing Cuker's claimed damages to its historical revenues to be substantially outweighed by the potential for confusion and/or a needless waste of time-while Cuker is forced to explain the context necessary to properly understand its revenues and/or profits and losses. Likewise, the intrinsic value of certain of Cuker's alleged trade secrets may have no correlation to the value of services rendered on a particular project in an isolated year. As to other types of financial information, the parties should be guided by the Court's rulings as to these examples, but otherwise the Court does not presently have the context in which to make blanket findings or prohibitions that would apply to every type or form of Cuker's of financial information. Accordingly, this aspect of the motion is granted in part, denied in part, and deferred in part.

         5. Exclusion of references to other ...

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