The opinion of the court was delivered by: Ramon E. Reyes, Jr., U.S.M.J.
This case is scheduled to begin with jury selection on March 31, 2008, to be immediately followed by a trial on all issues. (Docket Entry dated March 7, 2008.) In light of the fact that this case will proceed as a jury trial, I set forth the following revised orders regarding the parties' various motions in limine. Unless otherwise set forth herein, all previously issued orders remain unmodified.*fn1 Any additional issues relating to the parties' motions in limine may be raised during the in-person pretrial conference scheduled for Tuesday, March 25 at noon, in Courtroom A, North Wing.
Plaintiffs' Motions in Limine
1. Motion to Exclude Defendants' Introduction of Mr. Scognamillo's Video Deposition. (Docket Entry 174 at 2; Docket Entry 132 at 12.)
Motion is denied. Mr. Scognamillo is located more than 100 miles from this Courthouse, thus the use of his deposition in lieu of live testimony is warranted. See FED. R. CIV. P. 32(a)(4)(B). Defendants are required to identify portions of video deposition that they seek to introduce and make the entire video available to plaintiffs prior to trial. As for plaintiffs' claim that the deposition contains hearsay, plaintiffs must raise specific objections to portions of the deposition and attempt to resolve this issue with defendants prior to trial such that defendants may edit the video.
2. Motion to Exclude Defendants' Introduction of Evidence Relating to a Consent Agreement between Patsy's Italian Restaurant and Patsy's Pizzeria in the 1940s. (Docket Entry 142 at 8-9.)
Motion is granted. Given that agreement was a naked consent and is unenforceable under the Statute of Frauds, see Patsy's Italian Rest. v. Banas, 508 F. Supp. 2d 194, 220 (E.D.N.Y. 2007), any probative value is outweighed by prejudice to plaintiffs. SeeFED. R. EVID. 403. Defendants are not permitted to introduce evidence relating to this agreement, including as part of Mr. Scognamillo's video deposition.
3. Motion to Exclude Ms. Arles's Deposition. (Docket Entry 174 at 2; Docket Entry 142 at 4-8.)
Motion is granted in part. Defendants have not made a proper showing that Ms. Arles is unavailable due to a physical or mental illness. See FED. R. EVID. 804(a)(4). Defendants shall submit a subpoena for the Court's signature requiring Ms. Arles to appear at trial. Should Ms. Arles continue to refuse to testify in person, the Court will entertain a motion to introduce her deposition pursuant to Rule 804(a)(2) of the Federal Rules of Evidence.
4. Motion to Exclude Factual Conclusions Drawn in the Tomato Sauce Litigation. (Docket Entry 142 at 9-11.)
I defer judgment until the pretrial conference. A party and their privies are collaterally estopped from re-litigating an issue when: "(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually decided, (3) there was full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits." NLRB v. Thalbo Corp., 171 F.3d 102, 109 (2d Cir. 1999) (citations omitted). For the reasons stated in defendants' papers, (Docket Entry 156 at 16-19), the issue of the existence of Patsy's Pizzeria since 1933 appears to have been established in Patsy's Brand, Inc. v. Banas, 317 F.3d 209, 217 (2d Cir. 2003) (holding that the trademark PATSY'S PR SINCE 1944 is a valid trademark for the use of pasta sauces because I.O.B. Realty and its predecessors failed to police its marks against Patsy's Italian Restaurant).*fn2 At the same time, the existence of the pizzeria appears to be beyond the scope of the prior litigation. Id. at 221 (holding that injunctive relief limiting the way that defendants identify their restaurant "is beyond the scope of this litigation"). Thus, it is unclear whether the issue of when Patsy's Pizzeria was established was necessary to support a valid and final judgment on the merits. I therefore defer judgment pending oral argument at the pretrial conference.*fn3
5. Motion to Preclude Defendants from Calling Mr. Zivin as a Witness to Testify Regarding the PTO and TTAB Proceedings. (Docket Entry 142 at 13.)
Motion is granted without prejudice to plaintiffs making a subsequent motion to call Mr. Zivin as a witness if it should be deemed ...