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New Mexico Top Organics-Ultra Health, Inc. v. Kennedy

United States District Court, D. New Mexico

August 3, 2018

LARRY KENNEDY, DAN MOURNING, and RAINA BINGHAM, in their official capacities, Defendants.


         In preparation for the upcoming non-jury trial and in compliance with this Court's Pretrial Order (Doc. 57), Plaintiff New Mexico Top Organics-Ultra Health, Inc. filed Plaintiffs' Motion in Limine to Exclude Defendants' Exhibits H and I (Doc. 61) in which it requested that the Court exclude from trial as irrelevant Defendants' Exhibit H, described as “Ultra Health's ‘Freedom of Speech Timeline, '” and as irrelevant and prejudicial Defendants' Exhibit I, “Ultra-Health's ‘High Times Cannabis Cup' Flyer.” Defendants Larry Kennedy, Dan Mourning, and Raina Bingham filed their own Motion in Limine (Doc. 60), arguing in favor of including Defendants' Exhibits H and I, and asking the Court to exclude Plaintiff's proposed Exhibits 16 and 17, New Mexico Department of Health statistics, Exhibit 18, Ultra Health's Department of Health license renewal letter, and Exhibit 19, a copy of the New Mexico Lynn and Erin Compassionate Use Act. Both motions are fully briefed.[1] The Court, having considered the parties' briefing, arguments and relevant case law will grant in part and deny in part both parties' motions.


         Courts have discretion in ruling on motions in limine. See Cavanaugh v. Woods Cross City, 718 F.3d 1244, 1249 (10th Cir. 2013). As noted, this case is scheduled for a non-jury trial. The Tenth Circuit has noted that “in bench trials questions raised relative to the admission or exclusion of evidence…become relatively unimportant, because the rules of evidence are intended primarily for the purpose of withdrawing from the jury matter which might improperly sway the verdict.” Tosco Corp. v. Koch Industries, Inc., 216 F.3d 886, 896 (10th Cir. 2000). Rather, there is a presumption in a bench trial that a court will consider only competent evidence and disregard any incompetent evidence. See Id. But motions in limine can be useful procedural tools “necessary to facilitate the efficient administration of justice.” Grand Canyon Trust v. Public Serv. Co. of N.M., 294 F.Supp.2d 1246, 1247 (D.N.M. 2003). “A motion in limine provides the court with the opportunity to rule on the admissibility of evidence and thus prevents encumbering the record with irrelevant material.” Id.


         On May 31, 2017, Plaintiff New Mexico Top Organics-Ultra Health, Inc. (Plaintiff or Ultra Health) filed suit against three New Mexico State Fair officials, Defendants Larry Kennedy, Dan Mourning, and Raina Bingham (collectively, Defendants), seeking damages, [2]injunctive relieve, and declaratory judgment for alleged violation of its First Amendment right to free speech.[3] Ultra Health is a New Mexico non-profit corporation licensed by the State of New Mexico to produce, distribute and dispense medical cannabis and cannabis-derived products to patients enrolled in the New Mexico Department of Health (NMDOH) Medical Cannabis Program. Ultra Health alleges that Defendants impermissibly sought to restrict its constitutionally protected speech and engaged in viewpoint discrimination against Ultra Health by placing unreasonable restrictions on Ultra Health's exhibitor application for the 2017 State Fair in violation the First and Fourteenth Amendments to the United States Constitution. The relevant factual background to Plaintiff's claims is set forth more fully in the Court's April 10, 2018 Memorandum Opinion and Order (Doc. 42) pertaining to the parties' cross-motions for summary judgment and the Court will not repeat it here. However, the crux of the parties' dispute in this case centers on whether the challenged speech restriction was “reasonable” and “viewpoint neutral.”


         1. Ultra-Health's “Freedom of Speech Timeline

         On July 11, 2018, Plaintiff moved to exclude as evidence Ultra-Health's “Freedom of Speech Timeline.” (Doc. 61 at 1-2). The timeline depicts a number of events beginning first in June 2016 with a statement that Ultra Health was denied sponsorship of the Albuquerque International Balloon Fiesta and ending on May 31, 2017, the day Ultra Health filed the complaint in this case. (See Doc. 61-1, Timeline). Plaintiff states that the timeline was created as part of a May 2017 press release related to the filing of the present lawsuit, and was not created by Plaintiff's counsel or for purposes of this litigation. (See Doc. 61-3, Press Release). Plaintiff contends that the timeline is not relevant under Federal Rule of Evidence 401[4], does not qualify as summary evidence under Federal Rule of Evidence 1006[5], and is double hearsay. (Doc. 61 at 1-2; Doc. 66 at 2).

         Both in their response to Plaintiff's motion and in their own motion, Defendants argue that the timeline is relevant because certain events on the timeline negate Plaintiff's claim that there is now a widespread policy of acceptance of medical cannabis throughout the State of New Mexico and its agencies. (Doc. 60 at 6; Doc. 62 at 2). Specifically, Defendants contend that statements in the timeline that the Albuquerque Balloon Fiesta and the New Mexico Department of Tourism rejected Plaintiff's request for sponsorship and application for New Mexico True Certification, respectively, “counter Plaintiff's universal approval argument.” (Doc. 62 at 2). Defendants also argue that the timeline is admissible as non-hearsay because it was created by Plaintiff's employees and therefore is a statement of a party opponent under Rule 801(d)(2). (Doc. 60 at 6). Plaintiff vehemently rejects this argument, responding that the statements on the timeline represent double hearsay, be introduced through witness testimony, and create confusion given that the statements say nothing about why Ultra Health's applications to other entities' may have been denied. (Doc. 66 at 2).

         The Court agrees that certain statements in the timeline contradict Plaintiff's claims regarding “official state policy” pertaining to medical cannabis (Doc. 63 at 7), and are therefore relevant to the question of whether Defendants' list of prohibitions was reasonable and viewpoint neutral. See United States v. Jordan, 485 F.3d 1214, 1218 (10th Cir. 2007) (“The bar for admission [of evidence] under Rule 401 is very low…This is because the degree of materiality and probativity necessary for evidence to be relevant is minimal and must only provide a fact-finder with a basis for making some inference, or chain of inferences.” (internal quotation marks and citation omitted)). The Court also finds the timeline is a non-hearsay statement of a party opponent. Under Rule 801(d)(2), a statement offered against an opposing party that was “made by the party in an individual or representative capacity, ” “is one the party manifested that it adopted or believed to be true, ” “was made by a person whom the party authorized to make a statement on the subject, ” or “was made by the party's agent or employee” is admissible as non-hearsay. Plaintiff acknowledged in its own motion in limine that the timeline was created by Ultra Health in conjunction with a press release pertaining to this lawsuit. Moreover, Plaintiff provided to the Court a copy of the press release which confirms that it was posted on Plaintiff's website. (Doc. 61 at 1). The Court will conditionally admit the timeline if Defendants lay proper foundation at trial.[6] Plaintiff's motion is denied as to Defendants' Exhibit H.

         2. Ultra-Health's “High Times Cannabis Cup” Flyer

         Plaintiff next asks the Court to exclude a flyer for the High Times U.S. Cannabis Cup in Las Vegas, Nevada from March 4 to March 5, 2017 on which Ultra Health's name and logo appear. (See Doc. 61-2, Ultra Health's High Times Cannabis Cup Flyer). Plaintiff argues that the flyer, which discusses an event sponsored by a separate and distinct Arizona company, Ultra Health, LLC, in a state that has legalized recreational sale of marijuana, is irrelevant to the activities of New Mexico Top Organics-Ultra Health, Inc. in New Mexico, where cannabis is only legal under state law for medicinal purposes. (Doc. 61 at 3). Plaintiff explains that Ultra Health, LLC is an Arizona based company that provides management and consultation to cannabis enterprises. (Id.). Plaintiff continues that Ultra Health, LLC took over management of New Mexico Top Organics which changed its name at that point to include the words “Ultra Health.” (Doc. 61 at 3). According to Plaintiff, “Ultra Heath, LLC assists New Mexico Top Organics with management services, such as data analysis, logistics, accounting, and media relations.” (Id.). However, New Mexico Top Organics-Ultra Health, which must conduct its operations intrastate, contends it did not participate in the event depicted in the flyer. (Id.). Plaintiff asserts that the flyer therefore is not relevant under Rule 401. Plaintiff further argues that the flyer carries a danger of creating unfair prejudice by conflating the message of Ultra Health, LLC at the Nevada Event with New Mexico Top Organics-Ultra Health's educational message at the New Mexico event. (Doc. 61 at 4).

         In contrast, Defendants contend that the managing company Ultra Health “holds itself out to be one in the same as Plaintiff, ” noting that the full article on Ultra Health's website announcing the event states that “Ultra Health, a national medical cannabis leader and New Mexico's largest provider, is partnering with High Times, the premier cannabis brand for 42 years, to introduce the first High Times Las Vegas Cannabis Cup on March 4 and 5, 2017.” (Doc. 62 at 3) (emphasis original). Defendants argue that the flyer, which incorporates Plaintiff's trademark and was included in an article on Plaintiff's website, is “relevant to show that previous events that Plaintiff has displayed cannabis related material, in a manner similar to what Plaintiff would have displayed in their proposed booth at the State Fair, requires attendees to be 21 years and older and is not family friendly.” (Doc. 60 at 7). Defendants continue, “[a]s such, Defendants were in their purview to deny Plaintiff's application in order to preserve the policy of creating a family-friendly event.” (Doc. 60 at 7). Finally, Defendants assert that Exhibit I is relevant to the anticipated testimony of Duke Rodriguez, Ultra Health, LLC's president, either on direct examination or cross-examination regarding the family friendliness of cannabis.

         The Court first notes that the Tenth Circuit has held that exclusion of evidence as unfairly prejudicial under Rule 403 of the Federal Rules of Evidence is not proper in a bench trial. SeeUnited States v. Kienlen, 349 Fed.Appx. 349, 351 (10th Cir. 2009) (“Other circuits have held, and we agree, that excluding evidence in a bench trial under Rule 403's weighing of probative value against prejudice [is] improper.” (emphasis in original) (internal quotation marks and citation omitted)). Nevertheless, a flyer advertising a cannabis-related event in another state with different marijuana laws, in a different context, does not have any tendency to make more or less probable Defendants' claim regarding the reasonableness of their restrictions on Plaintiff or on the validity of ...

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