Connectus LLC v. Ampush Media, Inc.

Filing 243

ORDER: Ampush's Motion to Renew its Motion to Strike/Exclude the Report, Opinions, and Testimony of Plaintiff's Designated Expert Witness Douglas Kidder (Doc. # 239 ) is GRANTED. The Court considers Ampush's original motion to exc lude Kidder's testimony (Doc. # 143 ). The motion to exclude Kidder's testimony (Doc. # 143 ) is DENIED, except that Kidder may not testify as to the opinions of Brita D. Strandberg. Ampush's Motion for Clarification and Reconsideration of Discrete Issues from the Court's Order on Ampush's Motion for Summary Judgment (Doc. # 240 ), is DENIED. Signed by Judge Virginia M. Hernandez Covington on 6/16/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CONNECTUS LLC,
Plaintiff,
v.

Case No. 8:15-cv-2778-T-33JSS

AMPUSH MEDIA, INC., et al.,
Defendants.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
two motions filed by Defendant Ampush Media, Inc. on May 22,
2017: its (1) Motion to Renew its Motion to Strike/Exclude
the Report, Opinions, and Testimony of Plaintiff’s Designated
Expert Witness Douglas Kidder (Doc. # 239) and (2) Motion for
Clarification and Reconsideration of Discrete Issues from the
Court’s Order on Ampush’s Motion for Summary Judgment (Doc.
# 240). Plaintiff Connectus LLC filed responses in opposition
to both motions on June 5, 2017. (Doc. # 241; Doc. # 242).
For the reasons below, Ampush’s motion to renew is
granted insofar as the Court considers Ampush’s arguments to
exclude Kidder’s testimony. Kidder may not testify as to Brita
D. Strandberg’s opinions, but Kidder’s testimony is otherwise
not excluded. Ampush’s motion for reconsideration is denied.

I.

Background

A detailed recitation of the facts is not needed. Suffice
it to say, the Court denied Defendants’ motion to exclude
Kidder’s testimony, but noted the Court would, if necessary,
consider arguments for excluding Kidder’s testimony at the
appropriate time after summary judgment. (Doc. # 143; Doc. #
209). The Court also denied Ampush’s motion for summary
judgment. (Doc. # 216; Doc. # 233). Ampush, the sole remaining
Defendant,

now

seeks

to

renew

its

arguments

to

exclude

Kidder’s testimony (Doc. # 239) and for reconsideration of
the Court’s order denying summary judgment (Doc. # 240).
II.

Legal Standard
A.

Expert Report and Testimony
1.

“A

motion

Motion in Limine Standard
in

limine

presents

a

pretrial

issue

of

admissibility of evidence that is likely to arise at trial,
and as such, the order, like any other interlocutory order,
remains subject to reconsideration by the court throughout
the trial.” In re Seroquel Prods. Liab. Litig., Nos. 6:06md-1769-Orl-22DAB, 6:07-cv-15733-Orl-22DAB, 2009 WL 260989,
at *1 (M.D. Fla. Feb. 4, 2009).
The real purpose of a motion in limine is to give
the trial judge notice of the movant’s position so
as to avoid the introduction of damaging evidence

2 

which may irretrievably effect the fairness of the
trial. A court has the power to exclude evidence
in
limine
only
when
evidence
is
clearly
inadmissible on all potential grounds.
Id. (internal quotation omitted).
“A motion in limine is not the proper vehicle to resolve
substantive issues, to test issues of law, or to address or
narrow the issues to be tried.” LSQ Funding Grp. v. EDS Field
Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla. 2012). “Denial
of a motion in limine does not necessarily mean that all
evidence contemplated by the motion will be admitted at
trial.” In re Seroquel, 2009 WL 260989, at *1 (internal
quotation marks omitted). “Instead, denial of the motion
means the court cannot determine whether the evidence in
question should be excluded outside the trial context.”

Id.

“The court will entertain objections on individual proffers
as they arise at trial, even though the proffer falls within
the scope of a denied motion in limine.”
2.

Id.

Daubert Standard

Federal Rule of Evidence 702 allows “[a] witness who is
qualified

as

an

expert

by

knowledge,

skill,

experience,

training, or education [to] . . . testify in the form of an
opinion or otherwise,” if certain criteria are satisfied;
namely,

3 

(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.
Fed. R. Evid. 702. “Rule 702 compels the district courts to
perform the critical ‘gatekeeping’ function concerning the
admissibility of expert” testimony. United States v. Frazier,
387

F.3d

1244,

1260

(11th

Cir.

2004).

“This

function

‘inherently require[s] the trial court to conduct an exacting
analysis’ of the foundations of expert opinions to ensure
they meet the standards for admissibility under Rule 702.”
Id. (quoting McCorvey v. Baxter Healthcare Corp., 298 F.3d
1253, 1257 (11th Cir. 2002)) (emphasis in original).
“[I]n determining the admissibility of expert testimony
under Rule 702, [a court] engage[s] in a rigorous three-part
inquiry.” Id. The district court must consider whether:
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2)
the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined
by the sort of inquiry mandated in Daubert; and (3)
the testimony assists the trier of fact, through
the application of scientific, technical, or
specialized expertise, to understand the evidence
or to determine a fact in issue.

4 

City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562
(11th Cir. 1998). “[A]lthough there is some overlap among the
inquiries into an expert’s qualifications, the reliability of
his proffered opinion[,] and the helpfulness of that opinion,
these are distinct concepts that courts and litigants must
take care not to conflate.” Quiet Tech. DC-8, Inc. v. HurelDubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003). “The
proponent of expert testimony always bears ‘the burden . .
.’” of satisfying the Court’s three-part inquiry, Frazier,
387 F.3d at 1260, by a preponderance of the evidence, Allison
v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999).
As

to

the

qualification

inquiry,

an

expert

can

be

qualified “by knowledge, skill, experience, training, or
education.” Fed. R. Evid. 702; see also Frazier, 387 F.3d at
1260 (“we observe that experts may be qualified in various
ways”). But, “[i]f the [expert] witness is relying solely or
primarily on experience, then,” in establishing reliability,
“the witness must explain how that experience leads to the
conclusion reached, why that experience is a sufficient basis
for the opinion, and how that experience is reliably applied
to the facts.” Frazier, 387 F.3d at 1261 (citation and
internal quotation marks omitted). “Exactly how reliability
is evaluated may vary from case to case, but what remains

5 

constant is the requirement that the trial judge evaluate the
reliability of the testimony before allowing its admission at
trial.” Id. at 1262 (citing Fed. R. Evid. 702 advisory
committee’s note (2000 amends.) (“The trial judge in all cases
of proffered expert testimony must find that it is properly
grounded, well-reasoned, and not speculative before it can be
admitted.”)) (emphasis in original).
There

are

four

recognized,

yet

non-exhaustive,

considerations —
(1) whether the expert’s methodology has been
tested or is capable of being tested; (2) whether
the technique has been subjected to peer review and
publication; (3) the known and potential error rate
of the methodology; and (4) whether the technique
has been generally accepted in the proper
scientific community
— a district court may use in evaluating reliability. Seamon
v. Remington Arms Co., LLC, 813 F.3d 983, 988 (11th Cir. 2016)
(citations omitted). A district court can take other relevant
factors into account as well. Id. (citations omitted). The
Court’s analysis as to reliability “focus[es] ‘solely on
principles and methodology, not on the conclusions that they
generate.’” Id. (citation omitted).
Expert testimony must also assist the trier of fact.
Fed. R. Evid. 702. “By this requirement, expert testimony is
admissible

if

it

concerns

matters

6 

that

are

beyond

the

understanding of the average lay person.” Frazier, 387 F.3d
at 1262 (citation omitted). “[T]he court must ‘ensure that
the proposed expert testimony is “relevant to the task at
hand,” . . . i.e., that it logically advances a material
aspect of the proposing party’s case.’” Allison, 184 F.3d at
1312 (citation omitted). So, while “[t]he ‘basic standard of
relevance . . . is a liberal one,’ Daubert, 509 U.S. at 587,
.

.

.[,]

if

an

expert

opinion

does

not

have

a

‘valid

scientific connection to the pertinent inquiry[,]’ it should
be excluded because there is no ‘fit.’” Boca Raton Cmty.
Hosp., Inc. v. Tenet Health Care Corp., 582 F.3d 1227, 1232
(11th Cir. 2009) (citations omitted).
“Proffered expert testimony generally will not help the
trier of fact when it offers nothing more than what lawyers
for the parties can argue in closing arguments.” Frazier, 387
F.3d at 1262-63 (citation omitted). Similarly, pure questions
of law are “not a matter subject to expert testimony.” Myers
v. Bowman, 713 F.3d 1319, 1328 (11th Cir. 2013).
B.

Reconsideration

“A ‘[r]ose is a rose is a rose is a rose.’” Perez v.
Wells Fargo N.A., 774 F.3d 1329, 1331 (11th Cir. 2014)
(citation

omitted

and

alteration

in

original);

see

also

Wright v. Preferred Research, Inc., 891 F.2d 886, 889 (11th

7 

Cir. 1990) (stating that court looks at relief requested,
rather

than

motion’s

label,

when

determining

applicable

rule). So, although Ampush’s motion is titled “Motion for
Clarification and Reconsideration,” there is nothing in the
motion suggesting Ampush found the Court’s summary judgment
order

confusing,

ambiguous,

or

otherwise

unintelligible.

Rather, the substance of Ampush’s motion shows what Ampush
really seeks is reconsideration.
When a motion for reconsideration is filed within 28
days of an order, Rule 59 applies. Beach Terrace Condo. Ass’n,
Inc. v. Goldring Inves., No. 8:15-cv-1117-T-33TBM, 2015 WL
4548721, at *1 (M.D. Fla. July 28, 2015); Murphree v. Colvin,
No. CV–12–BE–1888–M, 2015 WL 631185, at *1 (N.D. Ala. Feb.
15, 2013). Because Ampush’s motion for reconsideration was
filed within 28 days of the Court’s summary judgment Order,
Rule 59 governs.
“The only grounds for granting a Rule 59 motion are
newly-discovered evidence or manifest errors of law or fact.”
Anderson v. Fla. Dep’t of Envtl. Prot., 567 Fed. Appx. 679,
680 (11th Cir. 2014) (quoting Arthur v. King, 500 F.3d 1335,
1343 (11th Cir. 2007)) (quotation marks omitted). Granting
relief under Rule 59(e) is “an extraordinary remedy to be
employed

sparingly

in

the

interests

8 

of

finality

and

conservation of scarce judicial resources.” United States v.
DeRochemont, No. 8:10-cr-287-T-24MAP, 2012 WL 13510, at *2
(M.D. Fla. Jan. 4, 2012) (citation omitted). Furthermore, “a
Rule 59(e) motion [cannot be used] to relitigate old matters,
raise argument or present evidence that could have been raised
prior to the entry of judgment.” Michael Linet, Inc. v. Vill.
of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
III. Analysis
A.

Motion to Renew and Kidder’s Report

Resolution

of

Ampush’s

pending

motion

to

renew

its

motion to exclude Kidder’s testimony (Doc. # 209) involves
exacting attention to the timeline of this case, beginning
with the Second Amended Complaint, filed on November 11, 2016.
(Doc. # 106). The Second Amended Complaint brought six counts:
conversion (count I); misappropriation of trade secrets under
Florida

law

(count

II);

unfair

competition

(count

III);

unjust enrichment (count IV); breach of contract (count V);
and injunctive relief (count VI). (Id.).
Eleven days later, DGS Edu and Ampush each filed a Rule
12(c) motion. (Doc. # 114; Doc. # 115). Then, on December 19,
2016, DGS Edu and Ampush filed their joint motion seeking to
exclude Kidder’s testimony. (Doc. # 143). The three primary
reasons

Defendants

asserted

in

9 

their

motion

to

exclude

Kidder’s testimony were (1) Connectus was attempting to use
Kidder’s report to silently amend its complaint; (2) Kidder’s
report was based on a theory that was not supported by either
California or Florida law; and (3) Kidder’s opinions should
be excluded under Federal Rule of Evidence 702 and Daubert.
(Id.). With respect to the second point, Defendants focused
on the argument that Kidder’s theories did not “satisf[y] the
basic elements of an unjust enrichment claim.” (Id. at 8).
While

briefing

on

the

Defendants’

joint

motion

to

exclude Kidder’s testimony was still underway, the earlierfiled Rule 12(c) motions became ripe for disposition. The
Court granted the Rule 12(c) motions on January 20, 2017.
(Doc.

#

188).

California

law

In

particular,

governed

in

the

Court

accordance

ruled

with

the

that

(1)

parties’

agreement; (2) the Florida trade-secrets claim was dismissed;
(3) the common-law claims were dismissed; (4) the agreement’s
limitation-of-liability clause was enforceable with respect
to the breach-of-contract claim; (5) injunctive relief was
not a stand-alone cause of action; and (6) Connectus could
replead its trade-secrets claim under California law. (Id.).
The Court also provided Connectus until February 13, 2017, to
file its Third Amended Complaint, denied the then-pending
motions for summary judgment without prejudice, and directed

10 

the parties to indicate whether they would be refiling the
then-pending motion to exclude Kidder’s testimony. (Id.).
Connectus filed its Third Amended Complaint on January
30, 2017. (Doc. # 200). The Third Amended Complaint brought
two counts: a claim under CUTSA (count I) and breach of
contract (count II). (Id.). Two days later, on February 1,
2017, Defendants filed a joint reply in support of their
motion to exclude Kidder’s testimony. (Doc. # 203).
In their reply vis-à-vis the motion to exclude Kidder’s
testimony, Defendants argued, for the first time, that the
agreement’s limitation-of-liability clause should apply to
damages awarded under CUTSA. (Id. at 6). Because the Court
does not consider arguments raised for the first time in a
reply and the issue of whether the limitation-of-liability
clause applied to the CUTSA claim remained outstanding, the
Court determined ruling on the motion to exclude Kidder’s
testimony would be premature. (Doc. # 209 at 15-16, 31). The
Court further indicated Defendants were free to raise the
issue at summary judgment and, if it became necessary, the
Court would hear arguments as to why Kidder’s testimony should
be excluded at the appropriate juncture. (Id. at 31-32).
On February 9, 2017, which was four days before the Court
ruled on the motion as to Kidder, Defendants filed a joint

11 

motion to strike or dismiss the Third Amended Complaint. (Doc.
# 206). In that motion to dismiss, Defendants argued the CUTSA
claim should be dismissed under the economic loss rule and
the limitation-of-liability clause should apply to the CUTSA
claim. (Id.). While briefing on the motion to dismiss was
ongoing, Ampush filed its motion for summary judgment on March
3, 2017. (Doc. # 212). On March 28, 2017, the Court denied
the motion to dismiss. (Doc. # 222).
While the Court ultimately denied Ampush’s efforts to
have the limitation-of-liability clause applied to the CUTSA
claim, the issue of the clause’s applicability was still an
open

question

when

Ampush

filed

its

motion

for

summary

judgment on March 3, 2017. Despite the Court’s invitation to
argue the applicability of the limitation-of-liability clause
to the CUTSA claim at summary judgment, Ampush made no
argument at summary judgment that damages awarded under CUTSA
should be capped pursuant to the limitation-of-liability
clause beyond a perfunctory sentence and incorporations by
reference. (Doc. # 212 at 4, 11, 12 n.13). But, such terse,
off-handed references do not sufficiently raise an argument.
Dash 224 LLC v. Aerovias de Integracion Regional Aires SA,
605 Fed. Appx. 868, 870 (11th Cir. 2015) (“A party may abandon
a claim by failing to ‘plainly and prominently raise it . .

12 

. .’” (quoting Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014))); United States v. Jernigan,
341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (concluding party
abandoned

claim

where

brief

contained

only

four

passing

references to it, each of which was included under different
headings).

Nor

was

it

proper

for

Ampush

to

attempt

to

incorporate earlier arguments by reference, (Doc. # 212 at
11, 12 n.13). See Four Seasons Hotels & Resorts, B.V. v.
Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004)
(explaining incorporation by reference “attempts to both
bypass the rules governing space limitations and transfer
[the] duty to make arguments to the judges of this panel. We
now take the opportunity to join the many other Circuits that
have rejected the practice . . ., and we hold that Consorcio
has waived the arguments it has not properly presented for
review.”).
In sum, Ampush’s motion to dismiss sought to have damages
under CUTSA capped by the agreement’s limitation-of-liability
clause. The Court denied that motion to dismiss and Ampush
did not seek reconsideration. Additionally, Ampush failed to
adequately raise the issue of the limitation-of-liability
clause’s applicability at summary judgment. Now that summary
judgment

has

been

denied,

Ampush

13 

moves

to

reassert

its

arguments to exclude Kidder’s testimony. The primary reasons
Ampush asserts for why Kidder’s testimony should be excluded
are (1) Connectus was attempting to use Kidder’s report to
silently amend its complaint; (2) Kidder’s report was based
on a theory that was not supported by either California or
Florida law; and (3) Kidder’s opinions should be excluded
under Federal Rule of Evidence 702 and Daubert. (Doc. # 143).
The arguments that Connectus attempted to silently amend
its complaint and that Kidder’s theories failed as a matter
of law are substantive legal issues not properly raised by a
motion in limine. LSQ Funding Grp., 879 F. Supp. 2d at 1337.
Rather, the time for Ampush to have raised those issues was
in its motion for summary judgment. Ampush failed to do so
and it may not now use a motion in limine to address a topic
it forgot to (or elected not to) address.
Moreover,

Ampush’s

argument

regarding

Connectus’s

alleged attempt to silently amend its damages claim ignores
the plain language of the Second and Third Amended Complaints,
which allege “damage,” not actual damages, for breach of
contract. (Doc. # 106 at ¶ 64; 200 at ¶ 45). Ampush thus seeks
to create a notice problem where none exists. In addition,
Ampush’s renewed argument that Kidder’s theories of unjust
enrichment fail as a matter of law under California and

14 

Florida law is moot because the Court dismissed the standalone claim for unjust enrichment. (Doc. # 188).
By its third point, Ampush seeks to exclude Kidder’s
testimony under Federal Rule of Evidence 702 and Daubert.
Specifically, Ampush argues Kidder’s opinions are unreliable.
(Doc. # 143 at 10-14). Ampush also argues certain testimony
Kidder might give would not be helpful to the trier of fact.
(Id. at 14-15).
When determining if a proffered expert’s opinions are
sufficiently

reliable,

the

Court

considers,

among

other

factors, whether the expert’s methodology is capable of being
tested. Seamon, 813 F.3d at 988. It is evident from Ampush’s
own arguments that Kidder’s methodology is more than capable
of being tested. In fact, a cursory review of Kidder’s report
demonstrates his step-by-step analysis. (Doc. # 201-1). “The
Eleventh Circuit has made clear that a Daubert motion is not
intended to supplement the adversary system.” Se. Metals Mfg.
Co., Inc. v. Fla. Metal Prods., Inc., 778 S. Supp. 2d 1341,
1344 (M.D. Fla. 2011) (citing Quiet Tech. DC–8, Inc., 326
F.3d at 1341, as “affirming the district court’s ruling which
allowed the defendant’s expert’s testimony where plaintiff
alleged there were flaws in the methodology and reasoning”).
While the Court recognizes Ampush disagrees with the accuracy

15 

of

Kidder’s

provide

conclusions,

Ampush

calculations.

sufficient

Id.

vigorous

cross-examination

opportunity

(weaknesses

in

to

expert’s

will

challenge
testimony

his
go

towards weight, not admissibility).
With respect to whether Kidder’s testimony would be
helpful to the trier of fact, Ampush seeks to prevent Kidder
from testifying on matters of industry custom, reputational
harm, and reduction in lead quality. (Doc. # 143 at 14-15).
Ampush further seeks to preclude Kidder from mentioning the
conclusions of Brita D. Strandberg. (Id. at 15).
An expert may rely on inadmissible evidence to form the
basis of his opinions. Fed. R. Evid. 703. Aside from that
point of law, given the current briefing, the Court cannot
determine at this juncture whether particular evidence Kidder
may provide will be inadmissible. See In re Seroquel, 2009 WL
260989, at *1 (internal quotation marks omitted) (“denial of
the motion means the court cannot determine whether the
evidence in question should be excluded outside the trial
context”). But, the Court will entertain specific objections
to specific pieces of testimony at trial. Id. As for Kidder’s
mentioning of Strandberg’s conclusions, the Court excluded
Strandberg from testifying as an expert (Doc. # 209) and
agrees Connectus should not be allowed to inset her opinions

16 

back into this action via Kidder. Ampush’s motion to renew is
therefore granted to the extent that Kidder may not testify
as to Strandberg’s opinions or conclusions.
B.

Reconsideration of Summary Judgment Order

As Connectus correctly notes, “Ampush’s motion is not a
motion

for

summary

judgment,

but

rather

a

motion

for

reconsideration.” (Doc. # 242 at 2 n.1). Indeed, the two
motions

are

governed

by

different

Rules

and

standards.

Compare Fed. R. Civ. P. 56 (summary judgment), with Fed. R.
Civ. P. 59(e) (motions for reconsideration filed within 28
days).

Accordingly,

Ampush’s

Local

Rule

3.01(g)

certification, which in effect says a Local Rule 3.01(g)
certification

is

not

needed

because

the

motion

for

reconsideration is a motion for summary judgment (Doc. # 240
at 23), conflates two different types of motions and ignores
the plain language of Local Rule 3.01(g). The motion for
reconsideration thus fails to comply with Local Rule 3.01(g).
Motions — even motions for reconsideration — that do not
comply with Local Rule 3.01(g) are subject to denial. See,
e.g., Kreger v. Medicredit, Inc., No. 8:16-cv-1481-T-33JSS,
2016 WL 4370097, at *1 (M.D. Fla. Aug. 16, 2016); Quillet v.
Jain, No. 6:12-cv-1283-Orl-28TBS, 2014 WL 12631463, at *1
(M.D. Fla. Mar. 20, 2014); Monster Energy Co. v. Consol.

17 

Distribs., Inc., No. 6:11-cv-329-Orl-22DAB, 2013 WL 12155821,
at *1 (M.D. Fla. Oct. 2, 2013); see also Hansen Beverage Co.
v. Consol. Distribs., Inc., No. 6:11-cv-329-Orl-22DAB, 2011
WL 13141047, at *1 n.1 (M.D. Fla. Apr. 13, 2011). Ampush’s
motion for reconsideration is therefore denied. The motion
for reconsideration is also denied on its merits.
1.

Joint-and-Several Liability

In its motion for summary judgment, Ampush argued two
reasons

why

joint-and-several

liability

should

not

be

allowed. Namely,
[f]irst, Connectus has not pleaded joint and
several liability and only recently identified it
as a theory of recovery in discovery responses.
Second, such a position is contrary to California
law given any alleged harm suffered by Connectus is
divisible and therefore precludes a claim of joint
and several liability. See I-CA Enterprises, Inc.
v. Palram Americas, Inc., 235 Cal. App. 4th 257,
271 (2015) (“The concept of joint and several
liability is only applicable where the plaintiff’s
injury is ‘indivisible.’”); Brocade Communs. Sys.
v. A10 Networks, Inc., 873 F. Supp. 2d 1192, 1218
(N.D. Cal. 2012).
(Doc. # 212 at 23). Ampush now argues in its Rule 59(e) motion
that the Court answered the question of whether joint-andseveral liability was allowed when it should have answered
whether such liability was appropriate under the facts. (Doc.
# 240 at 4). This argument — that the Court failed to answer
the question presented — does not persuade.

18 

Ampush’s

second

reason

for

why

joint-and-several

liability should be disallowed contained not a single factual
citation. Rather, Ampush’s second reason consisted of one
conclusory sentence followed by two citations, only one of
which contained a generalized parenthetical statement of law
sans analysis. To now argue the Court failed to engage in a
fact-specific analysis after having presented no facts in
support of the original argument is unpersuasive.
Even if, assuming for the sake of argument, Ampush were
correct, summary judgment in Ampush’s favor still would not
have

been

appropriate.

A

defendant

bears

the

burden

of

“demonstrat[ing] that the [alleged] harm is divisible and if
there is a reasonable basis for apportionment.” Newark Grp.,
Inc.

v.

Dopaco,

Inc.,

No.

2:08-cv-2623-GEB-DAD,

2011

WL

4501034, at *8 (E.D. Cal. Sept. 27, 2011). Ampush’s lone
argument regarding divisibility, which was bereft of factual
citations, amounted to nothing more than mere ipse dixit.
Accordingly, Ampush failed to make a sufficient showing with
respect to a matter for which it will bear the burden of
proof. Id. at *9.
2.

Clear and Convincing Evidence

Ampush argues in its motion for reconsideration that
Connectus did not proffer clear and convincing evidence of

19 

willful and malicious misappropriation and therefore cannot
seek exemplary damages or attorney’s fees under CUTSA. (Doc.
# 240 at 12-16). But Ampush failed to sufficiently raise this
argument in its motion for summary judgment. And it is not
proper to raise new arguments, which could have been raised
before, in a motion for reconsideration. Michael Linet, Inc.,
408 F.3d at 763.
While Ampush’s motion for summary judgment and reply
each

contained

a

single

footnote

regarding

the

evidence

necessary to obtain exemplary damages or attorney’s fees
under CUTSA and why the limitation-of-liability clause should
apply,

respectively,

those

footnotes

were

buried

under

subsections devoted to different issues. Those footnotes did
not sufficiently raise Ampush’s arguments. See Mock v. Bell
Helicopter Textron, Inc., 373 Fed. Appx. 989, 992 (11th Cir.
2010) (“First, because [appellant] mentions its . . . argument
in passing in a footnote only and does not elaborate on it in
any further detail in either one of its briefs, we deem this
argument waived.”); Turner v. United Parcel Serv., No. 2:13cv-823-WMA, 2014 WL 4458917, at *9 n.8 (N.D. Ala. Sept. 10,
2014) (deeming argument raised solely in a footnote on summary
judgment waived); Ameritox, Ltd. v. Millennium Labs., Inc.,
No. 8:11-cv-775-T-24TBM, 2012 WL 12906572, at *2 n.6 (M.D.

20 

Fla. Aug. 1, 2012) (declining to consider argument raised in
a footnote of a summary judgment motion); see also Dash 224
LLC, 605 Fed. Appx. at 870 (quoting Sapuppo, 739 F.3d at 681);
Jernigan, 341 F.3d at 1283 n.8.
Furthermore, Ampush’s footnoted argument changed between
its motion for summary judgment and its reply. Compare (Doc.
# 212 at 23 n.19) (“Given Ampush’s good-faith reliance on the
SLA, industry norms, and Connectus’ failure to notify Ampush
of its alleged proprietary claim to the ancillary data,
Connectus

cannot

misappropriation’

establish
to

prevail

‘willful
on

any

claim

and
for

malicious
exemplary

damages or to recover attorney’s fees.”), with (Doc. # 227 at
9 n.45) (“Additionally, because Connectus cannot demonstrate
willful and malicious misappropriation, the Court should
limit

recovery

per

the

parties’

limitation-of-liability

agreement.”). The Court does not consider arguments raised
for the first time on reply. Herring v. Sec’y, Dep’t of Corr.,
397 F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly
admonished, ‘[a]rguments raised for the first time in a reply
brief are not properly before a reviewing court.’” (citations
omitted)).
Putting the issue of abandonment aside, summary judgment
still would not have been appropriate. Ampush’s footnoted

21 

argument in its motion for summary judgment contained not a
single citation to fact, which is problematic in its own
right. Rather, Ampush’s argument that Connectus failed to
establish willful and malicious misappropriation was based
entirely on Ampush’s primary argument that Ampush had relied
on the parties’ agreement, industry norms, and a failure on
Connectus’s part to notify Ampush of the proprietary nature
of the data at issue. (Doc. # 212 at 23 n.19). But, the Court
concluded the plain language of the parties’ agreement did
not support Ampush’s argument and there was a genuine issue
of material fact relating to industry norms. (Doc. # 223). A
conclusion

not

challenged

here.

As

the

undergirding

for

Ampush’s footnoted argument regarding the necessary quantum
of evidence fell away so too did the footnoted argument
itself.
3.

Damages

Ampush argued in its motion for summary judgment that
Connectus could not establish the damages element for breach
of

contract

damages.”

because

(Doc.

reconsideration,

#

it

212

Ampush

had
at

“no

20).

argues

evidence
Now,
two

in
main

of
its

any

actual

motion

points:

for

first,

Connectus’s evidence at summary judgment as to damages was
insufficient and, second, damages under a theory of unjust

22 

enrichment are barred by the limitation-of-liability clause
in the parties’ agreement. (Doc. # 240 at 21-22). Ampush also
argues, by way of footnote, unjust enrichment cannot be used
under California law to satisfy the damages element for breach
of contract.
To begin, a motion for reconsideration cannot be used to
assert arguments that could have been, but were not, raised
in the original motion. Michael Linet, Inc., 408 F.3d at 763.
Thus, the latter two points Ampush now raises in its motion
for reconsideration are improper. Id.
Even if the Court were to look to the merits, summary
judgment still would not have been appropriate. The main
thrust

of

Ampush’s

argument

is

that

Connectus

has

not

presented evidence sufficient to meet the damages element of
a breach-of-contract claim. But, “under California law, a
defendant’s

unjust

enrichment

can

satisfy

the

‘damages’

element of a breach of contract, such that disgorgement is a
proper remedy.” Foster Poultry Farms, Inc. v. SunTrust Bank,
377 Fed. Appx. 665, 669 (9th Cir. 2010) (citing Ajaxo Inc. v.
E*Trade Grp., Inc., 135 Cal. Rptr. 3d 221, 247-49 (Cal. 6th
Dist. Ct. App. 2005)). The Court previously found Ampush’s
arguments unpersuasive and it remains unconvinced that the
extraordinary remedy of reconsideration is appropriate.

23 

To the extent Ampush now seeks to argue damages under a
theory

of

unjust

enrichment

fall

under

one

of

the

contractually barred categories of damages, the appropriate
procedure would be to raise the issue in a Rule 50 motion
rather than belatedly arguing the point in a Rule 59(e)
motion. Of course, Ampush could have argued the point in its
motion for summary judgment, but it elected not to and Rule
50

is

now

the

vehicle

by

which

Ampush

may

present

its

argument. Abel v. Dubberly, 210 F.3d 1334, 1337 (11th Cir.
2000) (“Binding precedent in this Circuit . . . expressly
permits consideration of a Rule 50 motion after the denial of
summary judgment.” (citations omitted)).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Ampush’s Motion to Renew its Motion to Strike/Exclude
the

Report,

Opinions,

and

Testimony

of

Plaintiff’s

Designated Expert Witness Douglas Kidder (Doc. # 239) is
GRANTED. The Court considers Ampush’s original motion to
exclude Kidder’s testimony (Doc. # 143). The motion to
exclude

Kidder’s

testimony

(Doc.

#

143)

is

DENIED,

except that Kidder may not testify as to the opinions of
Brita D. Strandberg.

24 

(2)

Ampush’s Motion for Clarification and Reconsideration of
Discrete

Issues

from

the

Court’s

Order

on

Ampush’s

Motion for Summary Judgment (Doc. # 240), is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of June, 2017.

25