GARDNER et al v. PAUL BISKER CONTRACTING, INC. et al
Filing
93
ORDER ON SUPPLEMENTAL MOTION TO ENTER FINAL JUDGMENT - Plaintiffs therefore SHALL SUPPLEMENT their motion by December 20, 2019, addressing the issues identified in this order (SEE ORDER FOR ADDITIONAL INFORMATION). Signed by Judge James Patrick Hanlon on 11/27/2019.(DWH)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DAVID GARDNER,
DIANE HERRON,
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Plaintiffs,
v.
PAUL BISKER CONTRACTING, INC.,
PAUL BISKER,
Defendants.
No. 1:17-cv-01968-JPH-MJD
ORDER ON SUPPLEMENTAL MOTION TO ENTER FINAL JUDGMENT
In September 2019, Plaintiffs filed a motion to enter final judgment
against Paul Bisker Contracting, Inc. in the amount of $310,022.27. Dkt. 87.
The Court ordered Plaintiffs to supplement that motion because it did not
identify a standard for determining damages or explain why the requested
award was justified. Dkt. 89. Plaintiffs filed their supplemental motion,
requesting final judgment in the amount of $160,885.77. Dkt. 91.
I.
Proving Damages
Plaintiffs support their claim with a supplemental affidavit from Plaintiff
Diane Herron and a spreadsheet outlining the costs incurred to complete the
home. Dkt. 91-1, 91-2. While this evidence appears to support most of
Plaintiffs’ claims, see United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir.
1989), three spreadsheet entries—for $13.44, $22.88, and $82.82—are only
given the description of “?”. Dkt. 91-2 at 2. This lack of description cannot
establish that Plaintiffs are entitled to these amounts in damages. See Di
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Mucci, 879 F.2d at 1497. Therefore, if Plaintiffs do not provide more detailed
descriptions, the Court will exclude those amounts from any judgment.
II.
Ability to Enter Judgment
The Court granted Plaintiffs partial summary judgment against Paul
Bisker Contracting, Inc. on Plaintiffs’ breach of contract claim. Dkt. 79.
However, Plaintiffs’ other claims against Defendant Paul Bisker Contracting
and their claims against Defendant Paul Bisker in his individual capacity
remain. Final judgment under Federal Rule of Civil Procedure 58 is therefore
inappropriate. See Smart v. Local 702 Intern. Broth. of Elec. Workers, 573 F.3d
523, 525 (7th Cir. 2009) (“A final judgment is one that resolves all claims
against all parties.”).
Nor have Plaintiffs shown that a partial final judgment under Federal
Rule of Civil Procedure 54(b) is appropriate. Other claims remain against Paul
Bisker Contracting and the breach of contract claim remains against Defendant
Paul Bisker individually. See dkt. 1 at 10; Factory Mut. Ins. Co. v. Bobst Grp.
USA, Inc., 392 F.3d 922, 924 (7th Cir. 2004) (“Rule 54(b) permits entry of a
partial final judgment only when all of one party’s claims or rights have been
fully adjudicated, or when a distinct claim has been fully resolved with respect
to all parties.”). More than thirty days passed between the entry of partial
summary judgment and Plaintiffs’ motion for entry of final judgment. See dkt.
79, dkt. 87; King v. Newbold, 845 F.3d 866, 868 (7th Cir. 2017) (“[A]s a general
rule it is an abuse of discretion for a district judge to grant a motion for a Rule
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54(b) order when the motion is filed more than thirty days after the entry of the
adjudication to which it relates.”). And Plaintiffs have not explained why the
Court should now “expressly determine[ ] that there is no just reason for
delay.” Fed. R. Civ. P. 54(b).
Plaintiffs therefore SHALL SUPPLEMENT their motion by December 20,
2019, addressing the issues identified in this order.
SO ORDERED.
Date: 11/27/2019
Distribution:
Gregory P. Cafouros
KROGER GARDIS & REGAS, LLP
gpc@kgrlaw.com
Vilda Samuel Laurin, III
BOSE McKINNEY & EVANS
slaurin@boselaw.com
Justin W. Leverton
KROGER GARDIS & REGAS LLP
jleverton@kgrlaw.com
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