The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
Jury selection is currently scheduled for March 1, 2007 and a final pretrial conference is scheduled for January 31, 2007.
Now before the court is a motion for clarification, filed September 25, 2006, by third party defendants' Willard L. Jones and William R. Camerer, III. Attached to the motion is a certificate of concurrence of counsel for plaintiff Doebler's Pennsylvania Hybrids, Inc. A brief in support of the motion was filed the same day. On October 10, 2006, Taylor Doebler, III, and T. A. Doebler Seeds, defendants/third party plaintiffs, filed a response to the third party defendants' motion for clarification. On October 25, 2006, plaintiff, Doebler's Pennsylvania Hybrids, Inc., filed a response to Taylor Doebler, III and T. A. Doebler Seeds' response to third party defendants' motion for clarification. Finally, on October 26, 2006, third party defendants filed a reply brief in support of their motion for clarification.
The third party defendants submit that, in view of the limited reach of the Third Circuit's opinion, those counts that are set forth in the third party complaint that are not based on the ownership of the Doebler's trademark should not be included in the forthcoming trial. These are referred to as the "Non-Trademark" Counts" as opposed to the "Trademark Counts," which are based on the ownership of the Doebler's trademark. The Non-Trademark Counts of the third party complaint are comprised of civil conspiracy (Count I), interference with business relations (Count II), and breach of fiduciary duty (Count IV). The Trademark Counts are comprised of unfair competition/false designation of origin (Count III) and federal dilution of trademark rights (Count IV).
Based on their submissions, there appears to be unanimous agreement of the parties that the foregoing Non-Trademark Counts set forth in the third party complaint should not be included in the forthcoming trial. The court agrees and, therefore, they will be excluded from the trial.
In its response to third party defendants' motion for clarification, Taylor Doebler, III and T. A. Doebler Seeds, defendants/third party plaintiffs, included a request that the court bifurcate the issues of liability and damages, and they further requested, in the alternative, should the court determine that bifurcation is not warranted, that the court provide deadlines for expert discovery limited to the issue of damages, so that testimony on the issue of damages may be presented at trial. In its filing, plaintiff first points out that neither the question of further discovery as to the issue of damages nor the potential bifurcation of the trial is properly before the court, as defendants/third party plaintiffs did not set forth these requests in a separate motion or brief the same in accordance with the standard motions practice. Plaintiff then proceeds to object to bifurcation and also to any further damage discovery. In their reply brief, third party defendants also expressed their opposition to reopening discovery and the bifurcation of liability and damages.
Failure of defendants/third party plaintiffs to follow the general motion practice in making their two requests may well have led to some confusion as to briefing responsibilities. There was no separate motion and no separate brief and yet it is the filing of the supporting brief for motions that triggers the obligation of opposing parties to file an opposing brief. See LR 7.6. While defendants did not adhere to the usual motion practice, the court believes that the positions of the parties have been sufficiently stated for it to make a ruling on the requests. Bifurcation Rule 42(b) of the Federal Rules of Civil Procedure provides as follows:
Separate Trials. 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 claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States.
The Advisory Committee Notes to the 1966 Amendment to Rule 42 include the following statement:
"While separation of issues for trial is not to be routinely ordered, it is important that it be encouraged where experience has demonstrated its worth."
Here, the court finds that bifurcation of liability and damages would not be in furtherance of convenience, is not necessary to avoid prejudice, and would not be conducive to expedition and economy.
Bifurcation is an issue that rests in the sound discretion of the judge. This court has most frequently granted bifurcation in those cases in which the presentation of damages evidence is inordinately disproportionate to the evidence on liability. Bifurcation is usually not ordered when the issues of liability and damages are intertwined and witnesses who testify regarding liability can also be expected to testify as to damages. Bifurcation is often ordered in personal injury cases in which the nature and extent of the damage issues may prejudice the jury in its liability determination.
In this case, it appears to the court that the presentation of evidence as to damages would occupy a much smaller portion of the trial time than evidence presented regarding liability, and that there is likely to be considerable overlap in testimony as to liability and damages by the key witnesses. In addition, there ...