EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, June 10, 2012

Rafael Nadal, Roger Federer, The Battle Of The Surfaces & Federal Rule Of Evidence 408

With Rafael Nadal about to take to the terra batu to face Novak Djokovic for a record seventh French Open title, I can't help but think to a time when Rafa was considered JUST a great clay court player. That time was May 2, 2007, when Nadal played an exhibition called the Battle of the Surfaces against his rival Roger Federer on Nadal's home island of Mallorca. The conceit of the exhibition was that half of the court was clay (Nadal's preferred surface) and half of the court was grass (Federer's surface of choice). Here's a link to one of the many Youtube clips of the event. As with most Federer-Nadal matches, the exhibition ended with a Nadal victory, 7-5, 4-6, 7-6 (12-10). It also ended with a lawsuit, a lawsuit that was quickly dismissed in large part due to Federal Rule of Evidence 408.

In Marcinkowska v. IMG Worldwide, Inc., 342 Fed.Appx. 632 (Fed. Cir. 2009), on May 1, 2007, one day before the staging of the battle of the surfaces, Renata Marcinkowska,

a resident and citizen of South Carolina and a former professional tennis player, commenced an action against S&S, an advertising agency based in Argentina, and IMG, a sports marketing and management company incorporated in Ohio. Ms. Marcinkowska alleged that IMG and S&S infringed her '669 patent. Her patent claimed different tennis court surfaces on each side of the net....Ms. Marcinkowska also alleged claims under the Lanham Act and unfair trade practices and civil conspiracy under South Carolina law.


On February 25, 2008, S&S filed a Rule 12(b)(2) motion to dismiss the Amended Complaint for lack of personal jurisdiction. IMG simultaneously moved under Rule 12(b)(6) to dismiss the Amended Complaint for failure to state a claim for which relief can be granted. On December 29, 2008, the district court granted both motions, entered a final judgment, and dismissed the Amended Complaint with prejudice.

In response, Marcinkowska filed a letter motion to reopen the case, which the district court treated as a Rule 60(b) motion for relief from final judgment and denied. Marcinkowska then appealed the district court's final judgment and denial of her motion for relief from final judgment.

In her appellate brief, in an attempt to establish personal jurisdiction and that she had a potentially viable claim, Marcinkowska included many factual allegations relating to discussions that she had with S&S and IMG during settlement negotiations. In their brief, the defendants contended that

The allegations, conclusions, pleas and recitation of facts which are set forth in Marcinkowska''s informal brief go well beyond what is alleged in the Amended Complaint. Indeed, many of Marcinkowska's allegations in her informal brief are improper because they are not part of the Record and also because they refer to and disclose, albeit inaccurately, confidential settlement discussions subject to Fed. R. Evid. 408 between attorneys for the parties.

The Federal Circuit agreed with the defendants, assessed only the allegations in the Amended Complaint, and found that the district court acted properly in dismissing the complaint based upon those allegations.



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