Natures Way Marine, LLC v. EverClear of Ohio, Ltd. et al

Filing 189

Order re: Dfts' 158 Objections to Plaintiff's Amended List of Damages & Plf's 164 Response. Motion to exclude contained in Dfts' Objection to Amended List of Damages is DENIED as set out. The remaining objections to the amended list of damages are based on arguments that should be made to the jury at trial and are not legal questions for the Court. Signed by Judge Callie V. S. Granade on 11/14/2014. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NATURES WAY MARINE, LLC,
Plaintiff,
vs.
EVERCLEAR OF OHIO, LTD. and
NIRK MAGNATE HOLDING
CORP.,
Defendants.

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Civil Action No. 12-0316-CG-M

ORDER
This matter is before the Court on the defendants’ objections (Doc.
158), to Plaintiff’s amended list of damages (Doc 148), and Plaintiff’s response
(Doc. 164)
Defendants first object to the increase in the claim for lost profits from
$441,702.00 given in Plaintiff’s interrogatory responses to the current figure
of “approximately $550,000.00.” When the defendants deposed plaintiff’s
Executive Vice President concerning the claim for lost profits on February 7,
2014, Plaintiff agreed to provide a supplementation of its calculation for lost
profits as well as backup for the calculations that were to be completed by the
witness. Although the witness provided the new calculations to counsel for
Plaintiff shortly after the deposition, due to error and inadvertence Plaintiff’s
counsel failed to forward the information to Defendants’ counsel until August
13, 2014.

Defendants argue that Rule 37(c)(1), FED.R.CIV.P requires that the
additional damage amount may not be use as evidence because the failure to
disclose or supplement was neither substantially justified nor harmless.
Plaintiff submits that the failure was substantially justified because it was
not willful. However,
Substantial justification requires justification to a degree that
could satisfy a reasonable person that parties could differ as to
whether the party was required to comply with the disclosure
request. The proponent’s position must have a reasonable basis
in law and fact. The test is satisfied if there is a genuine
dispute concerning compliance.
Chapple v. Alabama, 174 F.R.D. 698 (M.D.AL 1997)(citations omitted). There
is no contention here that disclosure was not required, and therefor the
failure to disclose was not substantially justified.
The Court finds, however, that because the disclosure was made more
than three months prior to trial, and because Plaintiff offered to provide the
backup documentation and make the witness available for further
questioning under oath concerning the provided information, Defendants had
ample opportunity the make the late disclosure harmless. If Defendants
failed to take advantage of Plaintiff’s offer in that regard, they cannot now
make a case that any harm they suffer is because of the tardy disclosure.
Accordingly, the motion to exclude contained in Defendants’ objection
to the amended list of damages is DENIED.

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The remaining objections to the amended list of damages are based on
arguments that should be made to the jury at trial and are not legal
questions for the Court.
DONE and ORDERED this 14th day of November, 2014.

/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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