LYNCH ICHIDA THOMPSON KIM & HIROTA
TIMOTHY J. HOGAN 5312-0
1132 Bishop Street, Suite 1405
Honolulu, Hawaii 96813
Tel. No. (808) 528-0100
Fax No. (808) 528-4997
E-mail: tjh@loio.com
Attorney for Plaintiff
WAYNE BERRY
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WAYNE BERRY, a Hawaii citizen;
Plaintiff,
vs.
HAWAIIAN EXPRESS SERVICE,
INC., a California corporation; et al.
Defendants.
_______________________________
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Civ. No. CV03 00385 SOM-LEK
(Copyright)
PLAINTIFF WAYNE BERRY’S
MEMORANDUM IN OPPOSITION
TO THE POST CONFIRMATION
TRUST FOR THE FLEMING
COMPANIES, INC.’S MOTION IN
LIMINE NO. 6 REGARDING
ALLEGED UNRELATED BAD
ACTS; CERTIFICATE OF
SERVICE
HEARING
DATE: January 20, 2006
TIME: 2:00 P.M.
JUDGE: Honorable Susan Mollway
TRIAL DATE: January 24, 2006
Case 1:03-cv-00385-DAE-LEK Document 732 Filed 01/10/2006 Page 1 of 10
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PLAINTIFF WAYNE BERRY’S MEMORANDUM IN OPPOSITION
TO THE POST CONFIRMATION TRUST FOR THE FLEMING
COMPANIES, INC.’S MOTION IN LIMINE NO. 6 REGARDING
ALLEGED UNRELATED BAD ACTS
COMES NOW Plaintiff Wayne Berry, by and through his undersigned
counsel and hereby submits his memorandum in opposition to the Post
Confirmation Trust for the Fleming Companies, Inc.’s Motion in Limine No. 6
Regarding Alleged Unrelated Bad Acts (the “Motion”).
I. BACKGROUND.
Starting in 1998, the undersigned counsel has met with ATF regarding
Fleming cigarette smuggling and the shipment of automatic weapons in Fleming
containers. In 1999 the undersigned counsel responded to grand jury subpoenas
that resulted in the production of evidence that eventually indicted the Lindeys.
This early look at the reality of life with Fleming makes the PCT’s claim that Mr.
Berry is some kind of crack pot absurd. Based on the recent admission that
Fleming’s management, accountants and vendors were engaged in a massive
accounting fraud Mr. Berry is totally vindicated.
With the time limits imposed by the Court there is no way that Mr. Berry
could do justice to providing the history of this corporate degenerate in the time
allowed. As to the PCT motion, it is calculated to implicate clearly relevant
testimony and documentary evidence that is both relevant to the remaining issues
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and therefore the Motion should be denied. Come to think of it, Mr. Berry has no
intention of letting the jury think he has any relation to the real Fleming that he will
be happy to conceal from the jury.
A. Relevant Evidence the PCT Seeks to Bar at Trial.
In the laundry list of what the PCT claims should be prohibited topics are real
bits of Mr. Berry’s damage case that the Court must permit to go to the jury.
1. Fleming is still in business. This will only be relevant if Fleming
claims that it is out of business i.e. Bankrupt with no money to pay for
the damages. If Fleming opens the door the proof of the ongoing sale
of milk in Hawaii is in play.
2. K-Mart. The evidence at trial regarding market will be that Mr. Berry
attempted to license his system to K-Mart even traveling to Michigan
to its corporate headquarters. It is undisputed that Fleming used the
Berry system in an illegal unlicenced form K-Mart starting in no later
than 2000 and continuing right through the relevant period. The use of
the Berry system for outbound moves was prohibited by his license.
This potential market was destroyed by the infringement. K-Mart is
clearly relevant.
3. The PCT’s Complaint against its own management for accounting
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fraud is clearly relevant because the PCT admits in its filing that its
financials are fraudulent. Mr. Berry has to be able to cross examine the
expert who relied on them and seek to keep them out on the basis that
they are unauthenticated false financials. As to the SEC, if Fleming
opens the door by putting in evidence that it is the victim of Mr.
Berry’s vendetta that will be offering is own character and its consent
decree in which it admits bad acts should be allowed in to rebut.
4. Any reference to API. Fleming knows that it has admitted in sworn
statements that Fleming used the Berry system exactly as API used it.
Mr. Berry has personal knowledge of this use and therefore has
relevant testimony regarding the use of his system relevant to the
damages. In addition, Fleming knows that both parties experts have
reviewed the API records that shows the massive amount of profit that
API began to earn after the installation of the software that is the
subject of this case. The API records are part of the foundation for the
Berry expert report and the damages generally. Barring this evidence
would be akin to a grant of summary judgement against Mr. Berry on
the issue of damages.
5. As to the value of software or the right to be free from infringement,
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the Court should not order counsel to, in final argument, follow the
infringers’ script.
6. As to Fleming’s failed attempt to enjoin Mr. Berry from being a
government witness, in that bazaar proceeding in Delaware (in which
Judge Walrath immediately ruled against Fleming) Fleming put
several documents in the record. In particular, the Declaration and
Supplemental Declaration of Mark Dillon and the Declaration of
Damian Capozzola. The former prove that Fleming was using Mr.
Berry’s system during the relevant time exactly as it had been used
under API thereby making Mr. Berry’s personal knowledge regarding
is use clearly relevant to damages. It also proves that the Fleming
employees were using the Berry system under the control of Fleming
and for Fleming’s financial gain. Therefore relevant to the issue of
vicarious liability. The Capozzola Declaration admits that Fleming had
agreed to the Berry EULA and otherwise rebuts its claim to surprise
regarding the damage floor contained in the EULA.
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As to remaining Bad Acts, the PCT has sued its own outside accountants and
managers for creating the same false financials it is attempting to put before the
jury. That is directly relevant to the defendants’ ability to introduce material
evidence and the report of Fleming’s expert that incorporated these fraudulent
financials.
As to the other litany of Fleming sins, if the PCT had not late named Jack
Borja who was for much of the time, Fleming’s point man regarding these bad acts,
then nearly this entire sorted series of what Flemings calls its “bad acts” could have
been ignored. That individual is the person with the connection to all of the major
bad acts and Mr. Berry has a right to raise that issue regarding this individual as it is
clearly relevant to his bias interest and motives with regard to assisting Fleming in
this case.
B. If Fleming Opens the Door at Trial all of these Acts are in Play.
In one of the thee days of depositions that the PCT took during this case, it
admitted that its theory is to show that it is an innocent corporate good citizen and
that it is the victim of Wayne Berry’s vendetta. Should the PCT go forward with
this absurd defense that requires that it claim “good character” then all of its bad
acts are admissible to rebut its own offer of such character evidence.
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C. Fleming’s Own Documents Contain Evidence of Serious Wrongdoing.
Fleming was warned that the materials it turned over in discovery contained
disturbing evidence of wrongdoing. The late filed Supplemental Declaration of Lex
Smith confirms that the materials were brought to the PCT’s attention. The
problem is that these materials contain computer viruses that trigger blocking
software without warning. This was raised because Fleming flatly refused to
stipulate to the authenticity of its own emails turned over in discovery thus forcing
the use of the Fleming computer files at trial for the purpose of authenticity . The
fact of this was brought to Fleming’s counsel’s attention who appear to be at peace
with what such an spectacle would be like before the jury. These attorneys have
never denied the presence of this disturbing evidence of additional bad acts.
Declaration of Timothy J. Hogan Filed in Support of Plaintiff Wayne Berry’s
Oppositions to the Fleming-pct’s Motions in Limine Nos. 1 Through 9, at
¶ 15.
III. CONCLUSION.
As set forth above, relevant evidence should remain admissible. If Fleming’s
attorneys attempt to paint Fleming in a light that opens the door to character
evidence, Fleming cannot prevent Mr. Berry from offering admissible evidence to
rebut it.
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DATED: Honolulu, Hawai#i, January 10, 2006.
/s/ Timothy J. Hogan
TIMOTHY J. HOGAN
Attorney for Plaintiff WAYNE BERRY
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WAYNE BERRY, a Hawaii citizen;
Plaintiff,
vs.
HAWAIIAN EXPRESS SERVICE,
INC., a California corporation; et al.
Defendants.
_______________________________
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)
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Civ. No. CV03 00385 SOM-LEK
(Copyright)
CERTIFICATE OF SERVICE
CERTIFICATE OF SERVICE
I hereby certify that on the dates and by the methods of service noted below,
a true and correct copy of Plaintiff Wayne Berry’s Memorandum in Opposition to
the Post Confirmation Trust For the Fleming Companies, Inc.’s Motion in Limine
No. 6 Regarding Alleged Unrelated Bad Acts was served on the following at their
last known addresses:
Served Electronically through CM/ECF on January 10, 2006:
Rex Y. Fujichaku rfujichaku@bchlaw.net, jennifer@bchlaw.net
Lyle S. Hosoda lsh@hosodalaw.com
Raina P. Mead rpbm@hosodalaw.com
Ann C. Teranishi act@ksglaw.com
Case 1:03-cv-00385-DAE-LEK Document 732 Filed 01/10/2006 Page 9 of 10
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Thomas H.Y.P. Yee thy@ksglaw.com
DATED: Honolulu, Hawai’i, January 10, 2006.
/s/ Timothy J. Hogan
TIMOTHY J. HOGAN
Attorney for Plaintiff WAYNE BERRY
Case 1:03-cv-00385-DAE-LEK Document 732 Filed 01/10/2006 Page 10 of 10
