United States District Court, D. Colorado
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motions
in Limine [#108] (the “Motions”). Defendant
filed a collective Response [#113] in opposition to the
Motions [#108], and Plaintiff filed a Reply [#120].
Additionally, the parties filed the Joint Status Report
[#152] pursuant to Court Order [#149]. The Court has reviewed
the briefing, the entire case file, and the applicable law,
and is sufficiently advised in the premises. Each individual
motion is addressed in turn.
Zykronix, Inc. (“Plaintiff”) is a Colorado
corporation doing business in Colorado and Taiwan. Joint
Amendment to Section 4 of the Scheduling Order [#46].
Defendant Conexant Systems, Inc. (“Defendant”) is
a Delaware corporation doing business in California whose
registered agent is in Colorado. Id. In early 2012,
Plaintiff entered into an agreement with a third-party named
Home Automation, Inc. (“HAI”), pursuant to which
Plaintiff agreed to design and manufacture for HAI a home
automation product called the OmniTouch 7. Motion
[#69] at 2-3. HAI was later acquired by Leviton
Manufacturing, Co. Ltd. (“Leviton”). Id.
at 2 n.2.
met with Defendant because it needed an audio chip for the
OmniTouch 7. Id. at 2-3. In March 2013, Plaintiff
ordered approximately 10, 000 chips. Id. Plaintiff
delivered the OmniTouch 7 devices, including the chips, to
Leviton for sale to customers. Id. Eventually, a
loud buzzing noise was discovered in some of the devices.
Id. Plaintiff alleges that the noise originates from
the chips, and that, as of May 8, 2017, Leviton had returned
540 devices that emitted the noise. Id. at 6;
Pl. Am. Responses to Def. First Set of Interrogatories to
Pl. [#70-8] at 3. On June 9, 2017, Defendant entered
into a Settlement Agreement with Leviton that agreed to
release Plaintiff “from any other obligations that [it]
may have to repair and/or replace any . . . Device due to any
defect or noise caused by any Conexant chip.”
Settlement Agreement [#79-20].
purpose of a motion in limine is to aid the trial process by
enabling the Court to rule in advance of trial on the
relevance of certain forecasted evidence, as to issues that
are definitely set for trial, without lengthy argument at, or
interruption of, the trial.” Martensen v.
Koch, No. 13-CV-02411-REB-CBS, 2015 WL 514913, at *2 (D.
Colo. Feb. 6, 2015) (quoting Mendelsohn v. Sprint/United
Management Co., 587 F.Supp.2d 1201, 1208 (D. Kan. 2008),
aff'd, 402 Fed.Appx. 337 (10th Cir. 2010)).
Although motions in limine can save time when ruled on prior
to trial, “a court is almost always better situated
during actual trial to assess the value and utility of
Motion #1: Settlement Agreement
seeks to exclude evidence related to the Settlement Agreement
between Defendant and third-party Leviton, including (1)
general communications between Defendant and Leviton, and (2)
the Settlement Agreement itself. Motions [#108] at
1-5. Plaintiff clarified in the Joint Status Report [#152]
that “[b]esides informing the jury that [Defendant] has
taken over all future repairs pursuant to the Settlement
Agreement, ” Plaintiff believes that any evidence
related to the Settlement Agreement is irrelevant, and that
Defendant failed to produce a witness prepared to testify on
that topic. Joint Status Report [#152] at 2.
Court first considers relevance. Defendant explains that the
failure rate of the chips is likely to be an issue at trial.
Id. at 3. Thus, Defendant avers that it will present
evidence that “since June 9, 2017 when [Defendant] and
Leviton entered into the Settlement Agreement, Leviton has
only returned 40 OmniTouch 7 devices.” Id. at
4. While Defendant is entitled to challenge the alleged
failure rate of the chips, Defendant fails to sufficiently
explain how the contents of the Settlement Agreement and
general communications related to the Settlement Agreement
are relevant to the issue of the number of devices returned.
In other words, the Settlement Agreement does not appear to
have any bearing on the rate at which chips were returned for
repair, or if it does, Defendant has failed to explain the
connection. Thus, the Court does not find Defendant's
argument convincing. Additionally, the Court notes that the
actual Settlement Agreement document is not needed for
Defendant to establish the date on which it was
also argues that Plaintiff has put the Settlement Agreement
at issue by stating in the Final Pretrial Order that two of
its witnesses are expected to testify regarding
“[Defendant's] agreement with Leviton regarding the
repair of OmniTouch 7 devices.” Joint Status
Report [#152] at 4. Of course, Plaintiff may open the
door to introduction of the Settlement Agreement into
evidence by presenting its own evidence at trial. Because the
Court cannot determine in advance of trial whether that will
occur, Plaintiff's motion to exclude the Settlement
Agreement is DENIED without
prejudice. Absent testimony inviting introduction of
the Settlement Agreement into evidence, an objection to its
admission based on relevance is likely to be sustained.
Motion #2: The “Terms and Conditions”
seeks a Court order precluding Defendant from introducing any
evidence or testimony related to Defendant's “Terms
and Conditions” because a court has previously ruled on
the issue of whether the Terms and Conditions constitute part
of the contract between these parties. Plaintiff contends
that several of Defendant's Affirmative Defenses should
also be excluded. Motions [#108] at 6.
Plaintiff argues, in March 2016, Defendant filed a Petition
to Compel Arbitration for Complaint for Declaratory Relief in
the U.S. District Court of the Central District of
California.See California Court Order
[#108-6]. Defendant sought to compel arbitration based on
language in the Terms and Conditions, [#108-5] at 16, which
were included in an email Defendant sent to Plaintiff in
response to Plaintiff's Purchase Order. Id. at
2. Before the California court, Defendant argued that the
additional terms in the Terms and Conditions became part of
the parties' contract because Plaintiff accepted the
shipments of chips and did not object to or dispute the new
terms. Id. at 6. The California court found against
Defendant, holding that the Terms and Conditions did not