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United States District Court, E.D. Pennsylvania

April 8, 2004.


The opinion of the court was delivered by: LOUIS POLLAK, Senior District Judge


This is an action for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C. § 1051, et seq., and the common law. Plaintiffs John Middleton, Inc. and JMTM, Inc. ("Middleton") are charging that defendant Swisher International, Inc.'s ("Swisher") BLACKSTONE cigarillo has infringed plaintiff's BLACK & MILD trademark and its alleged trade dress in a small brown cigarillo.

On February 11, 2004 defendant filed this motion, asking this court, pursuant to Fed.R.Civ.P. 42(b), to bifurcate the issues of liability and damages. For the reasons stated below, defendant's motion is denied.


Federal Rule of Civil Procedure 42(b) provides in relevant part:
  The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial . . . of any separate issue . . . or issues, always preserving inviolate the rights of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States. The decision to bifurcate is a "matter to be decided on a case-by-case basis and must be subject to an informed discretion by the trial judge in each instance." Lis v. Robert Packer Hosp., 579 F.2d 819, 824 (3d Cir. 1978). The party seeking bifurcation has the burden of demonstrating that judicial economy would be promoted and that no party would be prejudiced by separate trials. Spectra-Physics Lasers, Inc. v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D. Cal. 1992).

  Defendant first argues that its motion should be granted because bifurcation would streamline the proceedings and conserve resources because the documents and witnesses needed to calculate damages will not be the same as those needed to prove infringement. Furthermore, defendant asserts, "if the case has been bifurcated and Swisher does prevail on liability, both the parties and the Court will have been spared the burden and expense of damages discovery and trial." Defendant also submits that neither party will be prejudiced by the proposed bifurcation because "the issues and proof involved in the liability and damages phases have very limited overlap."

  Plaintiffs contend that bifurcation would not be appropriate because there would, in fact, be substantial overlap in the liability and damages evidence and witnesses upon which the parties will rely. Furthermore, plaintiffs argue against bifurcation because "[d]iscovery has demonstrated that this case lacks complexity." Lastly, plaintiffs contend that "bifurcation could only possibly benefit Swisher to the detriment and expense of John Middleton" because bifurcation would create twice the amount of work for the parties and the court because (1) the parties would have to engage in two rounds of discovery — one for liability and one for damages; (2) the parties would have to expend the time and expense to prepare for two jury trials and attend twice the number of court conferences; and (3) the "time needed to adjudicate John Middleton's rights would be significantly extended," causing prejudice and inconvenience.

  The burden falls on defendant to demonstrate that bifurcation is the proper course for this court to follow, and I conclude that defendant has failed to meet this burden. Hence, it is hereby ORDERED that defendant's Motion to Bifurcate the Issues of Liability and Damages (#14) is DENIED.


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