Southern Illinois Storm Shelters, Inc. v. 4semo.com, Inc.

Filing 123

ORDER granting 103 Motion to Strike. The Court STRIKES plaintiff's monetary damages. See Order for details. Signed by Judge David R. Herndon on 2/20/15. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SOUTHERN ILLINOIS STORM
SHELTERS, INC.,
Plaintiff/Counterclaim Defendant,
v.

No. 13-0297-DRH

4SEMO.COM, INC.,
Defendant/Counterclaimant,
v.
INGOLDSBY EXCAVATING, INC.,
Additional Counterclaim Defendant.
ORDER
HERNDON, District Judge:
Pending before the Court is 4SEMO’s motion to strike Southern Illinois
Storm Shelter Inc.’s claim for monetary damages (Docs. 103 & 104). Southern
Illinois Storm Shelter Inc. opposes the motion (Docs. 109 & 110). Based on the
following, the Court GRANTS the motion.

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4SEMO argues that the claim for monetary damages should be stricken as
plaintiff has refused and has failed to provide any basis for its monetary damages.
Specifically, 4SEMO maintains that plaintiff failed to respond to discovery seeking
plaintiff to quantify any dollar amounts claimed, that plaintiff did not identify any
such claims in its initial disclosures and plaintiff failed to name an expert to testify
as to damages.

In response, plaintiff notes that it has decided to drop its

monetary damages as to the trademark counts and only seek equitable relief.
However, plaintiff asserts that it is seeking monetary damages as to its common law
tortious interference with contractual relations claim. Plaintiff maintains that it has
provided discovery regarding the damages and its failure to provide a dollar
amount is justified because the damages are continuous and ongoing.
Here, the Court grants the motion to strike as to the trademark claims as
plaintiff voluntarily abandoned it (Doc. 110, p. 2). Further, the Court grants the
motion as to the tortious interference claim as well. First, discovery is closed.
Second, plaintiff admits “no dollar figure has been placed on the damages.” (Doc.
110, p. 3). Plaintiff argues that the damages are continuous and ongoing and that
Bob Ingoldsby can testify as to the monetary damages. However, a review of the
record reveals that there was no attempt to provide the amount of damages as of
the close of discovery and provide 4SEMO with the basis thereof and how the
damages would accumulate as time went on. Clearly, plaintiffs failed to disclose
any damages are required in Federal Rule of Civil Procedure 26(a).
Accordingly, the Court GRANTS the motion to strike SSIS’s claim for
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monetary damages (Doc. 103). Pursuant to Federal Rule of Civil Procedure 37(c),
the Court STRIKES plaintiff’s claim for monetary damages.
IT IS SO ORDERED.
Signed this 20th day of February, 2015.

United States District Court

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