Opinion
Civil No. 2:00-CV-00175B
May 14, 2004
B. Ray Zoll, Esq., S. Dayn Kelson, Esq., ZOLL TYCKSEN, L.C., for EToolz, Inc., Plaintiff/Counterclaim, Defendant EToolz, Inc.
Chris R. Hogle, Esq., BERMAN, TOMSIC SAVAGE, Salt Lake City, UT, for Doctor's Signature Sales Marketing International Corporation, d/b/a Life Force International
This matter came before the Court on March 10, 2004, for hearing and oral argument on defendant and counterclaim plaintiff Doctor's Signature Sales Marketing, Inc., d/b/a Life Force International's ("Life Force") Motion in Limine for the Exclusion of (1) Evidence and Argument of an Alleged Life Force Duty to Promote EToolz's, Inc.'s Web-Related Services and Products; (2) EToolz, Inc.'s Speculative Lost Profits Theory of Damages; (3) Evidence and Argument Inconsistent with EToolz, Inc.'s Judicial Admissions; (4) Evidence and Argument Regarding Alleged Impacts to EToolz, Inc.'s Employees and Investors of the Termination of the Contract Between Life Force and EToolz, Inc.; and (5) Hearsay of B. Ray Zoll Offered Through Mr. Zoll or any EToolz, Inc. Witness ("Motion"). Life Force was represent by Chris R. Hogle. Plaintiff and counterclaim defendant EToolz, Inc. ("EToolz") was represented by B. Ray Zoll and S. Dayn Kelson.
Having considered the Motion, the supporting and opposing memoranda and affidavits, and oral argument from both parties, the Court hereby ORDERS that:
1. The Court grants the Motion to the extent it seeks the exclusion of evidence and argument that Life Force had any duty to promote EToolz and EToolz's web-related products and services, including websites and website hosting services,
a. EToolz indicated during oral argument that it intends to present parol evidence in the form of witness testimony concerning negotiations and discussions leading up to the July 10, 1999 License and Lease Agreement ("Agreement") between the parties. According to EToolz's proffer, such parol evidence is to the effect that Life Force would promote EToolz's web-related products and services to Life Force's independent marketing members and encourage such members to utilize such products and services.
b. There is no dispute that the Agreement is integrated. It contains an integration clause and purports to be a complete expression of the subject matters of the parties' Agreement.
c. The Court finds that the Agreement is not ambiguous relative to the existence of a Life Force duty to promote EToolz's web-related products and services. There is no language in the Agreement requiring Life Force to undertake a duty to in any way promote EToolz's web-related products and services to Life Force's members or in any way encourage such members to utilize EToolz's websites or website hosting services.
d. Alternatively, if the Agreement is ambiguous, the Court shall construe the ambiguity against the drafter, which drafter is EToolz. Also, the Court was not presented with sufficient parol evidence to raise an issue of fact regarding the existence of an understanding between the parties that Life Force owed EToolz a duty to promote EToolz's web-related products and services or encourage the use of such products and services.
e. Therefore, the Court holds that the Agreement contained no duty on the part of Life Force to in any way promote EToolz's web-related products and services to Life Force's members or in any way encourage such members to utilize EToolz's websites or website hosting services.
f. Because the Agreement does not require Life Force to promote EToolz's web-related products and services or encourage the utilization of EToolz's products and services, any evidence that Life Force had such a duty is inadmissible, under the Parol Evidence Rule.
2. At this time, the Court denies, without prejudice, the Motion to the extent it seeks the exclusion of EToolz's lost profits theory of damages.
a. The Court shall re-open discovery for the sole and limited purpose of enabling EToolz to disclose the evidence EToolz intends to present at trial to support its lost profits theory of damages. EToolz shall have to and including April 15, 2004, to disclose in full and in detail all of the evidence it intends to present at trial to prove with reasonable certainty: (1) the fact of lost profits, (2) causation of lost profits, and (3) the amount of lost profits. Such disclosure shall include the identities of witnesses and their current addresses and telephone numbers, the substance of their expected testimony in detail, and anything EToolz intends to offer as an exhibit to prove its entitlement to lost profits. If EToolz intends to call a witness at trial who may be used to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence to support EToolz's alleged entitlement to lost profits damages, EToolz shall disclose an expert report that satisfies all the requirements of Fed.R.Civ.P. 26(a)(2)(B) for expert reports. The Court's November 7, 2003 Order (Docket No. 118), excluding all plaintiff's expert evidence, shall remain in full force and effect, except that EToolz may present expert evidence pursuant to the terms and conditions of this Order. Any failure by EToolz to make all of the above-described disclosures on or before April 15, 2004, shall result in the Court granting Life Force's Motion for the exclusion of EToolz's lost profits theory of damages.
b. EToolz shall have to and including April 15, 2004, to seek supplementation of Life Force's responses to interrogatories and document requests, to the extent supplementation is required by Fed.R.Civ.P. 26(e).
c. Other than seeking supplementation under paragraph 2.b. above, EToolz may not utilize the means and methods of discovery allowed under the Federal Rules of Civil Procedure to obtain information from Life Force or any other entity or person.
d. Life Force shall have to and including June 1, 2004 to depose or redepose any witness who EToolz designates under paragraph 2.a. above, designate any counter-witness, including expert witnesses, renew its Motion relative to EToolz's lost profits theory of damages, or file a new motion for the exclusion of EToolz's lost profits theory of damages.
e. Other than the motions described in paragraph 2.d. and appropriate motions in limine, the parties may not file any further motions for the exclusion or inclusion of any part of any claim or defense.
3. The Court grants the Motion to the extent it seeks the exclusion of EToolz's evidence and argument inconsistent with EToolz's judicial admissions. EToolz is prohibited from presenting at trial any evidence or argument to the effect that, after learning of Life Force's alleged breaches of the Agreement on December 12, 1999, EToolz immediately treated the Agreement as terminated and did not treat the Agreement as binding and ongoing.
4. The Court grants the Motion to the extent it seeks the exclusion of EToolz's evidence and argument regarding the impact on EToolz's employees and investors of the termination of the Agreement. EToolz may not present evidence or argument at trial evidence or argument regarding (1) the effects of the Agreement's termination on EToolz's employees or investors and (2) the cessation of EToolz's business, unless and until EToolz demonstrates to the Court that such effects and such cessation has relevance to the issues to be tried.
5. The Court grants the Motion to the extent it seeks the exclusion of Mr. Zoll's independent information, hearsay of Mr. Zoll elicited by EToolz, and any effort by EToolz or Mr. Zoll to portray Mr. Zoll as someone with first-hand information. At trial, the testimony elicited by EToolz may not mention Mr. Zoll as someone who had involvement in the transactions and occurrences underlying the parties' claims and defenses. Anything on EToolz's trial exhibits indicating Mr. Zoll's involvement shall be redacted, including Mr. Zoll's name on the December 17, 1999 letter attached to the Complaint. Mr. Zoll may not "testify" either on or off the witness stand, including by relating his own account of events or an account unsupported by the admissible evidence. EToolz may not present Mr. Zoll as someone with direct or personal knowledge of events. EToolz's witnesses may not relate any direct or indirect statements of Mr. Zoll during their testimony, unless elicited by Life Force as permitted by the Federal Rules of Evidence. EToolz may not elicit from any witness any direct or indirect statements of Mr. Zoll.