G. W. Aru, LLC v. W. R. Grace & Co.-Conn.

• Docket Number: Civ. JKB-22-2636
• Decision Date: 23 August 2023
• Parties: G. W. ARU, LLC, et al., Plaintiffs, v. W. R. GRACE & CO.-CONN., Defendant.
• Court: U.S. District Court — District of Maryland

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G. W. ARU, LLC, et al., Plaintiffs,
v.
W. R. GRACE & CO.-CONN., Defendant.

Civ. No. JKB-22-2636

United States District Court, D. Maryland

August 23, 2023

MEMORANDUM

James K. Bredar, Chief Judge.

Plaintiffs G. W. Aru, LLC and Cochise Technology, LLC have brought an action against Defendant W. R. Grace & Co.-Conn, alleging patent infringement in violation of 35 U.S.C. § 271(a) and false advertising in violation of Section 43 of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). On May 12, 2023, Plaintiffs filed a Motion for a Preliminary Injunction, seeking to prevent Grace from making certain allegedly false statements relating to its carbon monoxide (CO) to carbon dioxide (CO2) combustion, promoters. (ECF No. 41.) Attached to Plaintiffs' memorandum in support of its motion is the 123-page declaration of Guido W. Aru, the founder . and CEO of Plaintiff G.W. Aru LLC (“Aru Declaration”). (Aru Deci, at ¶ 1, ECF 42-1 at 8.)

Pending before the Court is Defendant's Motion to Strike portions of the Aru Declaration on the grounds that they contain improper and inadmissible evidence. (ECF No. 55.) The motion is fully briefed and no hearing is required. See Local Rule 105(6) (D. Md. 2023). For the reasons' discussed below, the Court will DENY the Motion to Strike.

I. LEGAL STANDARD

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A threshold issue is the proper standard for reviewing a motion to strike at the preliminary injunction stage. Defendant did not squarely address the issue in its initial motion. In its memorandum opposing the Motion to Strike, Plaintiffs argue that the Motion to Strike is governed by Federal Rule of Civil Procedure 12(f), which authorizes a Court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R, Civ. P. 12(f) (emphasis added). (ECF No. 62 at 3-4.) This argument is unavailing. The rule by its terms applies only to “pleading[s]” not other documents such as those connected to a motion for a preliminary injunction. Fed.R.Civ.P. 12(f). Although “some cases have held that Rule 12(f) * may be used to strike documents other than pleadings, the weight of authority is that such an action is not contemplated or permitted by the Rules.” Anusie-Howard v. Todd, 920 F.Supp.2d 623, 627 (D. Md. 2013) (footnotes omitted), affd, 615 Fed.Appx. 119 (4th Cir. 2015) (mem.). “That said, the United States Court of Appeals for the Fourth Circuit has recognized that district courts have inherent power to strike other types of documents for just cause[.]” Gaskins v. Baltimore City Pub. Schs., Civ. No. JKB-15-2961, 2016 WL 192535, at *3 (D. Md. Jan. 15, 2016), aff'd sub nom. Gaskins v. Abiodun, 649 Fed.Appx. 307 (4th Cir. 2016); see also Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101, 107 (2017) (“Federal courts possess certain inherent powers, not . conferred by rule or statute, to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” (Internal quotation marks omitted)). But “because of their very potency, inherent powers must be exercised with restraint and discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). Thus, the Court will consider whether it finds it appropriate, in its discretion and in the context of a motion for preliminary injunction, to use its inherent power to strike the Aru Declaration.

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As the Supreme Court has observed, “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this' limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.” Univ, of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Therefore, “[b]ecause preliminary injunction proceedings are informal ones designed to prevent irreparable harm before a later trial governed by the full rigor of usual evidentiary standards, district courts may look to, and indeed in appropriate circumstances rely on, hearsay or other inadmissible evidence when deciding whether a preliminary injunction is warranted.” G.G. ex rel Grimm v. Gloucester Cnty. Sch. Bd, 822 F.3d 709, 725-26 (4th Cir. 2016), vacated on other grounds, Gloucester Cnty. Sch. Bd. v. G.G., 137 S.Ct. 1239 (2017) (mem.); see also 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2949 (3d ed.) (“[I]nasmuch as the grant of a preliminary injunction is discretionary, the trial court should be allowed to give even inadmissible evidence some weight when it is thought advisable to do so[.]”). Because preliminary injunctions are governed by “less strict rules of evidence,” The Fourth Circuit has held that it was reversible error for a district court to refuse to consider proffered evidence in support of a preliminary injunction motion solely on the grounds that the evidence would have been inadmissible at trial. G.G., 822 F.3d at 726.

District courts in this circuit have held that defects in. evidence offered in support of a preliminary injunction generally go to the weight of the evidence rather than whether the Court may consider it at all. Thus, some courts have decided to consider all proffered evidence and assign it whatever weight is appropriate under the circumstances. See Hispanic Nat'l Law Enforcement Assoc. NCR v. Prince George's Cnty, 535 F.Supp.3d 393, 409-10 (D. Md. 2021)

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(denying a motion to strike allegedly inadmissible declarations in support of a preliminary injunction motion); Stone v. Trump, 280 F.Supp.3d 747, 767 (D. Md. 2017) (stating, in connection with a motion for preliminary injunction, that “(t]he weight to be accorded to affidavit testimony is within the discretion of the court, and statements based on belief rather than personal knowledge • may be discounted”). Others, when presented with proffered expert testimony related to a preliminary injunction motion, have undertaken a “less formal review” of the testimony to see whether it contains the indicia of reliability that courts look for in serving their gatekeeper function under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). See Defs. of Wildlife and S.C. Coastal Conservation League v. Boyle, Civ. No. 2:22-112-RMG, 2023 WL 2770280, at *2 (D.S.C.

Apr. 4,2023). While the evidentiary rules are somewhat relaxed at this stage, courts have therefore found that Federal Rule of Evidence 702 and the line of cases under Daubert remain “useful guideposts” in determining what kinds of expert evidence are appropriate to consider in deciding on the motion. St. Michael‘s Media Inc. v. Mayor and City Council of Baltimore, 566 F.Supp.3d 327, 353-56 (D. Md. 2021).

II. ANALYSIS

In its memorandum in support of the Motion to Strike the Aru Declaration, Defendant argues that the Court should strike portions of the Aru Declaration in which: 1) Aru is offering expert opinion testimony that he is not qualified to give, 2) Aru is offering improper lay opinions without proper foundation, and 3) Aru is offering improper legal opinions. (ECF No. 55.) The Court will consider each of these arguments in turn.

A. Aru's Expert Testimony

Federal Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill experience, training, or education may testify in the form of an opinion or otherwise if...:

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(a) the expert's scientific,, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Under Rule 702, the Court has a “basic gatekeeping obligation,” A dell Plastics, Inc. v. Mt. Hawley Ins. Co., Civ. No. JKB-17-00252, 2019 WL 2524916, at *1 (D. Md. June 19, 2019), to ensure “that an expert's testimony both rests on reliable foundation and is relevant to the task at hand,” Daubert, 509 U.S. at 597. The Court must determine whether the proffered testimony is “scientifically valid” based on factors such as testing, peer review, error rates, and whether the testimony is based on generally accepted principles. Id. at 592-95. However, the inquiry is “flexible” and no one factor is dispositive. Id. at 594; Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (1999). And, as discussed above, in the context of a motion for a preliminary injunction, the Court's review of the admissibility of expert testimony is “less formal.” St. Michael's Media, 566 F.Supp.3d at 353 (quoting Parks v. City of Charlotte, Civ. No....