Goshawk Dedicated Ltd. et al v. American Viatical Services, LLC
Filing
739
ORDER denying Goshawk's 659 Motion to Strike Jury Demand, AVS's 676 Motion for Trial is GRANTED, and Goshawk's 663 Motion to Strike Expert Report by Defendant's Expert Larry Warnock is GRANTED. The Court reserves ruling on AVS's Motion for Summary Judgment 664 , pending a hearing on the issue of damages set for Wednesday, 2/13/2013 at 9:30 a.m. Signed by Judge Richard W. Story on 2/4/13. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GOSHAWK DEDICATED LTD.,
et al.,
Plaintiffs,
v.
AMERICAN VIATICAL
SERVICES, LLC,
Defendant.
:
:
:
:
:
:
:
:
:
:
:
CIVIL ACTION NO.
1:05-CV-2343-RWS
ORDER
This case comes before the Court on Plaintiffs’ Motion to Strike Jury
Demand [659], Defendant’s Motion for Trial [676], Plaintiffs’ Motion to Strike
Expert Report by Defendant’s Expert R. Larry Warnock [663], and Defendant’s
Motion for Summary Judgment [664]. After reviewing the record, the Court
enters the following Order.
Background
This matter arises in the context of a secondary market for life insurance
policies that enables three categories of policyholders to sell their policies to
viatical companies (where the insureds are diagnosed with AIDS) or life
AO 72A
(Rev.8/82)
settlement providers (where the insureds are of advanced age and/or suffer from
chronic or terminal illness).1 A settlement provider that purchases a life
insurance policy in this context is entitled to receive the death benefits payable
under the policy upon the insured’s death, provided that the settlement provider
has met all of its obligations under the policy. Settlement providers in this
market insure themselves against catastrophic losses arising from insureds far
outliving their life expectancies (“LEs”), which causes unanticipated premium
costs and a delay in payment of death benefits. This insurance is known as Cost
Contingency Insurance or CCI.
On October 24, 1994, Phil Loy and Dr. Thomas Hodge founded
American Viatical Services (“AVS”) to provide LE evaluations for the CCI
industry. Between 1994 and 1998, the primary business of AVS was preparing
LEs for life insureds who where HIV positive or had developed AIDS. LEs for
AIDS patients and terminally ill persons were calculated using available
scientific and statistical information regarding the diseases and treatments (as
opposed to a traditional life insurance actuarial analysis that relies on sample
1
Unless otherwise noted, the facts are taken from Defendant’s Numbered
Statement of Material Facts which Defendant Contends There is No Genuine Issue to
Be Tried (“Def.’s SMF”) [665].
2
AO 72A
(Rev.8/82)
data concerning the general population). AVS’s criteria for AIDS and terminal
illness LE evaluations was updated as medications changed and the
understanding of diseases improved. AVS’s LE evaluations required the
application of individual judgment (i.e., it was not an exact science). AVS
prepared LEs as date ranges (e.g., 12 to 14 months) until a client, Portsmouth,
contacted AVS in 1998 or 1999 and asked that AVS start setting LEs as a single
number.
Around 1997, AVS was introduced to the debit-credit model of LE
evaluation by CIGNA Re, a division of CIGNA Insurance Company. Under
this model, a debit is created for an impairment and a credit is created for
something that positively impacts the insured’s life span (e.g., history of parents
who live to age 95). These debits and credits are taken from insurance
underwriting manuals. Underwriting manuals vary, with some being more
conservative and others more aggressive. AVS moved fully to the debit-credit
model in 1999 and adopted an underwriting manual from Cologne Re. Debitcredit models are continually changing as medical improvements occur.
Plaintiffs (“Goshawk”) were members of the Lloyd’s of London
insurance market and issued CCI to companies in the viatical and life settlement
3
AO 72A
(Rev.8/82)
industry. Goshawk’s connection to AVS began in 1997 when Loy met Steve
Mitchell and Martin Searle (employed by First City Insurance Brokers and then
Gracechurch Underwriting, Ltd. of England). After their initial meeting, Loy
and Searle communicated about AVS’s LE evaluations on HIV and AIDS
insureds and potential LE evaluations on seniors.
On December 9, 1998, Loy met with Searle, Paul Toomey (eventually the
Chief Underwriting Officer and Active Underwriter for Goshawk’s CCI
business), Brian Freeman (a Lloyd’s of London broker) and Geoff Walden (a
Goshawk underwriter). At the meeting, Loy gave a presentation about AVS.
Loy noted that AIDS was a rapidly evolving area of medicine. Loy also noted
that it was difficult for AVS to track the accuracy of LEs. Loy stated that AVS
used its own objective, independent judgment to calculate the appropriate LE in
the case of each life insured, without being influenced by settlement providers,
brokers or others who had economic interests in CCI policies. (Plaintiffs’ Rule
56.1 Statement of Additional Facts (“Pl.s’ SAF”), Dkt. [723-2] ¶¶ 3, 6.) Loy’s
declarations regarding AVS’s independence factored heavily into Toomey’s
decision to proceed with AVS and with CCI business generally. (Id. ¶ 3.)
4
AO 72A
(Rev.8/82)
At the December 9, 1998 meeting, Loy stated that AVS produced LEs at
an 85% confidence level.2 (Id. ¶ 7.) Loy also stated that AVS had three doctors
on staff who were instrumental in preparing AVS’s LE evaluations, and that
AVS adhered to professional standards to ensure that its LE evaluations were
accurate. (Id. ¶¶ 9-10.) Following the meeting, Goshawk designated AVS as a
Qualified Consulting Physician that could be utilized by settlement providers
for LE evaluations. Goshawk began issuing CCI policies in January 1999
(beginning with the Portsmouth portfolio). AVS provided more than 80% of
the LEs in the portfolios insured by Goshawk CCI.
In subsequent meetings with Toomey, Loy made representations
regarding AVS’s practices and independence consistent with those he made
during the December 9, 1998 meeting. (Id. ¶¶ 12-13.) For example, at a
meeting in April 2000 with Merlin Underwriting Agency Ltd., Loy confirmed
that AVS was utilizing a methodology that would meet the requirements of
Goshawk Underwriters. (Id. ¶ 20.) Then, around April 2002, Loy represented
to an agent of Goshawk Underwriters that AVS was fully cognizant of the need
2
As discussed in more detail below, the parties now dispute what Loy meant
by “85% confidence level”at the time the representations were made.
5
AO 72A
(Rev.8/82)
for LE evaluations to meet an 85% confidence level, and that AVS was making
LE evaluations to meet that requirement. (Id. ¶ 21.)
Meanwhile, in early 2001, Goshawk’s Portsmouth portfolio suffered
more than $14 million in losses. Despite this poor performance, Goshawk
continued to rely on AVS’s LE evaluations in its CCI business. Loy told
Goshawk during meetings in March 2001 that AVS’s under-projection of LEs
in the Portsmouth portfolio was due to advances in AIDS treatments. (Id. ¶¶
30-31.) Toomey testified that he was not aware of Goshawk undertaking any
analysis of how well the LE evaluators (including AVS) were performing after
the 2001 Portsmouth losses. He further testified that he could not recall any
outside auditor brought in by Goshawk to assess life evaluators during the time
Goshawk was in the CCI business. Goshawk ceased underwriting CCI business
by March 2003 and was placed into run-off by Lloyd’s of London in October
2004 (the run-off was not attributable to Goshawk’s CCI business).
Goshawk’s amended complaint [580] asserts three types of fraud against AVS –
actual intentional misrepresentation, false statement without knowledge of truth
or falsity, and promise made without intent to perform. Underlying these fraud
claims are the statements made by Loy to Goshawk at the December 9, 1998
6
AO 72A
(Rev.8/82)
meeting, and similar, consistent statements made by Loy in subsequent
communications with Goshawk. Specifically, Goshawk alleges that Loy made
five material misrepresentations: (1) that AVS adhered to professional standards
in setting its LEs, (2) that AVS independently set its LEs, (3) that AVS’s
methodology yielded LEs at an 85% confidence level, (4) that AVS was
conservative in its LE evaluations, and (5) that AVS employed substantial
medical resources to reach its LE evaluations. (Amended Complaint, Dkt.
[580] ¶¶ 20-27.)
Goshawk claims that AVS was setting unreasonably low LEs to benefit
its customers like Portsmouth (to the detriment of Goshawk), and was not
basing its LE evaluations on professional, independent information. (Id. ¶¶ 99118.). Goshawk alleges that AVS lowered LEs at the request of Portsmouth,
backdated the new LE data so it appeared to pre-date Portsmouth’s contract
with Goshawk, and then destroyed the original documents. (Id. ¶ 62.). AVS
denies Goshawk’s allegations, asserting that AVS’s LEs were the product of
independent, professional evaluations, not fraud by AVS.
7
AO 72A
(Rev.8/82)
Discussion
I.
Motion to Strike Defendant’s Expert Report
Goshawk moves to strike AVS’s expert report by R. Larry Warnock on
grounds that it is untimely under this Court’s Scheduling Order and Federal
Rule of Civil Procedure (“Rule”) 26(a)(2)(B). (Plaintiffs’ Motion to Strike
Expert Report by Defendant’s Expert R. Larry Warnock (“Pl.s’ Mot. to
Strike”), Dkt. [663].) This Court ordered the parties to submit expert reports by
July 2, 2007. (Order Granting Extension of Time to Complete Discovery, Dkt.
[220].) Rebuttal expert disclosures were due on August 1, 2007. (Id.) AVS did
not submit an expert report by the deadline; instead, it submitted only a rebuttal
report by R. Larry Warnock on August 1, 2007. Pursuant to a November 22,
2011 Consent Scheduling Order [598], the parties were permitted to submit
supplemental expert reports by May 16, 2012. AVS submitted a report by
Warnock labeled “supplemental.” [663-5].
Goshawk alleges that Warnock’s 2012 report is not a supplement to
Warnock’s 2007 rebuttal report, but rather a brand new report and analysis.
(Pl.s’ Mot. to Strike, Dkt. [663-1] at 3-4.) In fact, in his own deposition,
Warnock stated that his 2012 report “was new work” and “deals completely
8
AO 72A
(Rev.8/82)
with new information.” (Deposition of Robert Larry Warnock, Dkt. [663-6]
98:8-99:10.) Goshawk argues that there is no reason why Warnock’s analysis
could not have been performed by the 2007 deadline, and AVS’s late disclosure
of the new analysis is unfair and prejudicial to Goshawk. (Pl.s’ Mot. to Strike,
Dkt. [663-1] at 5-7.)
Rule 26(a)(2)(B) requires that expert reports contain “a complete
statement of all opinions the witness will express and the basis and reasons for
them.” Under Rule 26(e), a party who has made a disclosure under 26(a) must
supplement or correct its disclosure or response “in a timely manner if the party
learns that in some material respect the disclosure . . . is incomplete or
incorrect.” If a party fails to provide information required by Rule 26(a) or (e),
“the party is not allowed to use that information or witness to supply evidence
on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
“The purpose of expert reports and a deadline for serving them is to put
an opposing party on notice of what it must contend with at trial.” Cochran v.
Brinkmann Corp., 2009 U.S. Dist. LEXIS 114895, at *14 (N.D. Ga. Dec. 9,
2009.) Rule 26(e) “is not a device to allow a party’s expert to engage in
9
AO 72A
(Rev.8/82)
additional work, or to annul opinions or offer new ones to perfect a litigating
strategy.” Id. at 15. Further, “Rule 26 does not permit a party to circumvent the
deadlines imposed by the Court.” Id. at 19.
Warnock’s 2012 report contains a new analysis of AVS’s LEs. The
introduction to the 2012 report states, “In May 2012 [Warnock’s company] was
requested to develop an independent analysis of AVS’s underwriting results and
to prepare a Supplemental Report related to such analysis.” (Expert Witness
Supplemental Report, Dkt. [663-5].) Whereas Warnock’s 2007 rebuttal report
“focused on review of the plaintiff’s [sic] experts, analysis of certain data on
cases underwritten by AVS and insured by the plaintiffs, and review of certain
other data for familiarity,” the 2012 report provides an “actual-to-expected”
analysis based on actual mortality data through 2011. (See Expert Witness
Report, Dkt. [663-3]; Expert Witness Supplemental Report, Dkt. [663-5].)
Goshawk argues that Warnock could have conducted an independent
analysis of AVS’s LEs (as Goshawk’s own expert did) in 2007, and certainly
before May 2012, especially given that the last LEs relevant to this matter were
issued by AVS in March 2003. Furthermore, Goshawk argues, the late
disclosure of Warnock’s new analysis was not harmless because “Goshawk had
10
AO 72A
(Rev.8/82)
no opportunity to respond to and develop document and interrogatory discovery
directed at the facts underlying the new issues raised in the 2012 report.” (Pl.s’
Mot. to Strike, Dkt. [663-1] at 13.) AVS responds that Warnock could not
have done the analysis earlier because deaths of insureds continued between
2007 and 2012, and argues that the 2012 report merely expands upon and
provides more support for the root opinion in the 2007 report – that AVS’s LEs
were reasonable. (See generally, Defendant American Viatical Services, LLC’s
Opposition to Plaintiff’s Motion to Strike (“Def.’s Opp. Br.”), Dkt. [677].)
The Court agrees with Goshawk. Warnock’s 2012 report does not
supplement his 2007 report. When questioned on this point, Warnock testified,
“Other than correcting typos that were observed in the 2007 report, the 2012
report deals completely with new information.” (Deposition of Robert Larry
Warnock, Dkt. [663-6] 98:13-101:6.) In fact, development of the actual-toexpected study in the 2012 report “was not even hinted at in the 2007 report.”
(Id. 99:13-18.)
AVS has not provided justification for waiting nearly five years before
conducting an independent expert analysis of AVS’s LEs. It is clear from the
introduction of Warnock’s 2012 report that he was commissioned by AVS to
11
AO 72A
(Rev.8/82)
perform a new analysis at the last hour. Goshawk correctly points out that it
was able to present an independent analysis of AVS’s underwriting results by
the July 2007 deadline; there is no reason AVS could not have done the same.
Instead, in 2007, AVS’s expert limited himself to a critique of Goshawk’s
experts and their methodologies. It would be unfair and prejudicial to Goshawk
to allow Warnock to present a new, complex analysis at this late stage.
Therefore, Plaintiffs’ Motion to Strike Warnocks’s 2012 report is
GRANTED and AVS is limited to the opinions and bases for the opinions
stated in Warnock’s 2007 rebuttal report.
II.
Jury Trial Demand
AVS moves for a jury trial [675] and Goshawk moves to strike the jury
demand [659]3 as untimely and unjustified. Parties may demand a jury trial on
any issue triable of right by a jury by serving the other parties with a written
3
AVS argues that Goshawk’s motion to strike the jury demand is untimely
under LR 7.1A(2), which requires this type of motion to be filed within 30 days of the
beginning of discovery or with permission of the court. Goshawk points out that it
could not have filed within 30 days of the beginning of discovery because the jury
demand was not made until several years later. Goshawk admits that it did not seek
leave of Court to file its motion, but notes that LR 7.1A(2) does not require denial as
the consequence for a violation of the rule. In the interest of fairness, the Court
entertains the merits of Goshawk’s motion to strike along with AVS’s motion for a
jury trial.
12
AO 72A
(Rev.8/82)
demand no later than 14 days after the last pleading directed at the issue is
served. Fed. R. Civ. P. 38(b). “A party waives a jury trial unless its demand is
properly served and filed.” Fed. R. Civ. P. 38(d). Under Rule 39(b), “[i]ssues
on which a jury trial is not properly demanded are to be tried by the court. But
the court may, on motion, order a jury trial on any issue for which a jury might
have been demanded.”
Goshawk filed its initial complaint on September 9, 2005, alleging
fraudulent misrepresentations and negligence. AVS answered on September
27, 2005. On December 6, 2010, Goshawk filed an amended complaint. On
January 5, 2011, AVS answered the amended complaint and included, for the
first time, a jury demand. Goshawk moved to strike AVS’s jury demand [659]
on August 22, 2012, over nineteen months after the demand was made.
Goshawk’s amended complaint [580] dismissed two negligence claims
from its original complaint and alleged three new fraudulent statements
purportedly made by AVS (statements regarding AVS’s independence,
conservatism, and medical resources). The amended complaint has three fraud
counts, each of which appeared in the original complaint. Goshawk’s damages
13
AO 72A
(Rev.8/82)
estimate increased by over 25% – more than $30 million – between August
2007 and March 2012.
A.
Rule 38 Waiver
Waiver of a jury trial under Rule 38 is issue specific. See Fed. R. Civ. P.
38(b). Goshawk argues that the amended complaint merely elaborates on and
further clarifies the factual bases for Goshawk’s original fraud claims, but raises
no new issues sufficient to revive any right to a jury trial that existed when the
action was filed in 2005. (Plaintiffs’ Memorandum in Support of Motion to
Strike Jury Demand (“Pl.s’ MTS Memo”), Dkt. [659-1] at 1.) According to
Goshawk, the gravamen of Goshawk’s claims remained the same: AVS
misrepresented to Goshawk that AVS prepared LE evaluations in a
professional, conservative, and independent manner, and Goshawk was
damaged by AVS’s provision of false and misleading LE evaluations in
connection with certain CCI policies. (Id. at 4.) AVS maintains, however, that
the increase in Goshawk’s damages estimate by over $30 million is sufficient
reason to revive its jury demand. (Defendant’s Response to Plaintiffs’ Motion
to Strike Jury Demand, (“Def.’s Resp. Br.”), Dkt. [675] at 6.) Further, AVS
14
AO 72A
(Rev.8/82)
contends that new factual issues raised in Goshawk’s amended complaint
significantly changed the posture of the case. (Id. at 7.)
The right to “trial by jury is a vital and cherished right.” LaMarca v.
Turner, 995 F.2d 1526, 1544 (11th Cir. 1993) (internal citations and quotations
omitted). “[A]s the right of jury trial is fundamental, [courts] must indulge
every reasonable presumption against waiver.” Id. Whether a party has waived
the right to a jury trial on some or all issues under Rule 38 depends on whether
the opposing party was “put on notice as to these claims by the original round
of pleadings in [the] case.” Id. at 1546; accord Lanza v. Drexel & Co., 479 F.2d
1277, 1310 (2d Cir. 1973) (finding no new “issue” within the meaning of Rule
38 to warrant the revival of a jury demand where defendant “had been put on
notice of the underlying facts and basic legal theory – fraud – upon which
plaintiffs sought relief, and the character of the suit was in no way changed by
the amendments”). “New facts that merely clarify the same general issues
raised in the original complaint do not create new issues of fact upon which to
assert a jury demand. Amendments to pleadings thus may contain new facts
which do not create new issues triable by a jury.” Id. at 1545.
15
AO 72A
(Rev.8/82)
When Goshawk sought to amend its complaint nearly five years after this
action was filed, this Court allowed it to amend because this Court “[was] not
persuaded that Plaintiff’s factual assertions or alleged new theory [were]
anything more than ‘meat on the bones,’” and the new specific facts alleged
regarding AVS’s misrepresentations were “relate[d] to Plaintiffs’ original
Complaint.” (Order, Dkt. [579].) AVS has been on notice regarding
Goshawk’s fraud claims from the beginning.
Furthermore, the Court finds unpersuasive AVS’s argument that
Goshawk’s increased damages estimate is sufficient to revive AVS’s jury
demand under Rule 38. AVS cites In Re Financial Federated Title & Trust,
Inc., 309 F.3d 1325 (11th Cir. 2002) for the proposition that the Eleventh
Circuit “has held that a far less increase in claimed damages alone was
significant enough to revive a previously waived” jury demand under Rule 38.
(Def.’s Resp. Br., Dkt. [675] at 6.) However, that case involved an increase in
damages from $10,000 in the initial complaint to $1,017,647 in the amended
complaint. In Re Financial Federated Title & Trust, Inc., 309 F.3d at 1330.
The Court reasoned that “raising the ante” one hundredfold created “an entirely
new, more sophisticated case.” Id. From the outset, this case has involved
16
AO 72A
(Rev.8/82)
many millions of dollars. Goshawk’s increased damages estimate did not
change the nature of this suit. Therefore, the Court finds that AVS cannot
revive its right to a jury trial under Rule 38.
B.
Rule 39 Motion
Rule 39(b) allows the Court, on motion, to order a jury trial on any issue
for which a jury might have been demanded. “In this circuit, the general rule
governing belated jury requests under Rule 39(b) is that the trial court ‘should
grant a jury trial in the absence of strong and compelling reasons to the
contrary.’” Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir. 1983) (quoting
Swofford v. B & W, Inc., 336 F.2d 406, 408 (5th Cir. 1979)). There are five
factors for the Court to consider when weighing Rule 39(b) motions: (1)
whether the case involves issues which are best tried to a jury; (2) whether
granting the motion would result in a disruption of the court’s schedule or that
of the adverse party; (3) the degree of prejudice to the adverse party; (4) the
length of the delay in having requested a jury trial; and (5) the reason for the
movant’s tardiness in requesting a jury trial.” Id.
17
AO 72A
(Rev.8/82)
1.
Issues Best Tried by a Jury
Goshawk maintains that this complex action is better suited for a nonjury trial. (Pl.s’ MTS Memo, Dkt. [659-1] at 2.) Trial of the case will feature
information concerning the LEs, including medical records, computer driven
manuals, charts and actuarial tables. Three experts are expected to testify
regarding whether the overruns of AVS’s LEs were by chance or part of a
pattern of fraud by AVS. (Id. at 6.) The CCI contracts themselves are complex
insurance products. Twenty-six CCI contracts issued to nine different assureds
are at issue here. (Id.) Discovery has been extensive. To date, the parties have
deposed approximately 35 witnesses, have taken approximately 55 depositions,
have hired multiple experts, and have analyzed hundreds and of thousands of
documents. (Id. at 7.)
It is true that this case involves a complicated area of insurance and many
insurance contracts. However, as AVS argues, the root issues (as discussed
above regarding AVS’s motion for summary judgment) are factual disputes
appropriate for resolution by a jury (e.g., scienter, the exercise of reasonable
diligence, reasonable reliance, etc.). This is not a case involving contract
interpretation or a case of mixed questions of law and fact. The outcome here
18
AO 72A
(Rev.8/82)
will turn on the veracity of witnesses, “dueling experts,” and evaluations of
“reasonable person” standards – all of which fall within the purview of a jury.
Therefore, the Court finds that this case involves issues which are best tried to a
jury and this factor weighs in favor of AVS.
2.
Disruption of Schedules
This case has not been set for trial. There is no evidence that the Court or
the parties will be more inconvenienced, in terms of scheduling, by a jury trial
than a bench trial. Therefore, because of this circuit’s preference for granting
jury trials under Rule 39, this factor weighs in favor of AVS.
3.
Degree of Prejudice to the Adverse Party
Goshawk argues that granting a jury trial at this late date would be
extremely prejudicial to Goshawk because it has “already selected and engaged
its expert witnesses, delivered the experts’ reports, served all of its discovery
demands, deposed twenty-five witnesses, and pursued document discovery of
non-parties . . . – all with the understanding that the case would be tried to the
Court without a jury.” (Pl.s’ MTS Memo, Dkt. [659-1] at 17.) However, as
AVS points out, Goshawk does not specify what it would have done differently
if it had known this action would be a jury trial. See Milliken & Co. v. Shaw
19
AO 72A
(Rev.8/82)
Industries, Inc., 978 F. Supp. 1155, 1160 (N.D. Ga. 1997) (“The Defendants
have argued that they would have pursued discovery differently had they known
this would be a jury trial rather than a bench trial. [They do] not specify what
[they] would have done differently. The Court is not persuaded that this is a
‘strong and compelling reason’ to warrant denial of the Plaintiff’s [Rule 39(b)]
motion.”) Additionally, many depositions were taken and filings submitted by
Goshawk after the demand for a jury trial was filed and Goshawk was aware
that a jury trial was a possibility. Therefore, the Court finds that this factor
weighs in favor of AVS.
4.
Length of Delay and Reason for Delay
Here, AVS waited more than five years after the initial complaint was
filed to demand a jury trial. AVS argues, however, that the relevant period of
time is between the amended complaint (when, it claims, Goshawk changed the
posture of the case) and the jury trial demand, not the time between the filing of
the original complaint and the demand. (Def.’s Resp. Br., Dkt. [675] at 13.)
Therefore, AVS claims, there was no delay. Because they argue there was no
delay in the jury demand (i.e., it was timely vis-a-vis the amended complaint),
they advance no justification for a delay. (Id.) Arguably, because the Court has
20
AO 72A
(Rev.8/82)
already found that AVS’s demand was not timely, these factors weigh in favor
of Goshawk. However, because the other factors in the analysis favor AVS, the
Court need not analyze the merits of AVS’s arguments on these points.
Overall, the analysis favors AVS and a jury trial. The Court finds no
“strong and compelling reason” not to grant AVS’s Rule 39 motion, despite the
lengthy delay by AVS and its lack of justification for that delay. Therefore,
AVS’s motion for a jury trial is GRANTED and Goshawk’s motion to strike is
DENIED.
III.
Motion for Summary Judgment
The Court reserves ruling on AVS’s motion for summary judgment,
pending a hearing on the issue of damages. This case is hereby set for a
hearing before the Honorable Richard W. Story on Wednesday, February 13,
2013 at 9:30 a.m. in Courtroom 2105, United States Courthouse, 75 Spring
Street, S.W., Atlanta, Georgia. The hearing will address AVS’s claims that
Goshawk cannot establish that its damages were proximately caused by the
representations at issue, and that Goshawk’s damages cannot be calculated with
reasonable certainty. (See Brief in Support of Defendant’s Motion for
Summary Judgment, Dkt. [664-1] at 46-49.)
21
AO 72A
(Rev.8/82)
In its response brief, Goshawk references Attachment D to its Seventh
Supplemental Initial Disclosures. (Plaintiffs’ Memorandum in Opposition to
Defendant’s Motion for Summary Judgment, Dkt. [723] at 48.) The Court does
not have a copy of Attachment D. Goshawk may deliver a copy to the Court if
it wishes the Court to consider the document prior to the hearing.
Conclusion
Based on the foregoing, Goshawk’s Motion to Strike Jury Demand [659]
is DENIED, AVS’s Motion for Trial [676] is GRANTED, and Goshawk’s
Motion to Strike Expert Report by Defendant’s Expert R. Larry Warnock [663]
is GRANTED.
The Court reserves ruling on AVS’s Motion for Summary Judgment
[664], pending a hearing on the issue of damages set for Wednesday, February
13, 2013 at 9:30 a.m.
SO ORDERED, this 4th day of February, 2013.
________________________________
RICHARD W. STORY
United States District Judge
22
AO 72A
(Rev.8/82)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?