Cannon Technologies, Inc. v. Sensus Metering Systems, Inc.

Filing 383

ORDER Granting in Part and Denying in Part 367 Motion in Limine and Dismissing With Prejudice Cannons fraud claim. (Written Opinion). Signed by Judge Richard H. Kyle on 05/05/11. (kll)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Cannon Technologies, Inc.,
Plaintiff,

Civ. No. 08-6456 (RHK/LIB)
ORDER

v.
Sensus Metering Systems, Inc.,
Defendant/Third-Party Plaintiff,
v.
Vishay Intertechnology, Inc.,
Third-Party Defendant.
This matter is before the Court on Sensus’s Motion in Limine to Exclude
Cannon’s Untimely Document Production and Amended Disclosure (Doc. No. 367). 1
The main thrust of the Motion concerns Cannon’s production of “thousands of pages of
documents” on March 29, 2011, and April 19, 2011, well after the close of discovery and
shortly before trial (and on the eve of the Summary Jury Trial). (Sensus Mem. at 1.) In
response, Cannon asserts that with the exception of a “small number of documents
recently obtained from a non-party,” the documents it recently produced were previously
tendered in discovery, although the “new” production re-labels and re-organizes those
documents. (Cannon Mem. at 1.) It directs the Court’s attention to several examples,
which appear to confirm that at least some of the documents are, in fact, re-labeled

1

The Court orally gave Sensus permission to file this Motion out of time.

documents previously produced. At this juncture, however, the Court simply cannot tell
whether that is true of all the documents Cannon produced in March and April of this
year.
Accordingly, the portion of the Motion seeking to preclude Cannon from relying
at trial on its recently produced documents is GRANTED IN PART and DENIED IN
PART. The Motion is GRANTED as to the documents Cannon claims it only “recently
obtained from a non-party.” (Cannon Mem. at 1.) Cannon has offered no explanation
why it could not have produced these documents earlier, and the Court does not believe
that it was unable to ascertain the relevance of the documents until the Court’s ruling on
the parties’ Motions in Limine, as Cannon suggests. With respect to all other documents
produced in March and April 2011, the Motion is DENIED WITHOUT PREJUDICE
to Sensus renewing its objections at trial if any document offered by Cannon had not
been timely produced during discovery.
Sensus also objects to Cannon’s Fifth Amended Rule 26(a) disclosures, which
were served on April 19, 2011. It argues that the amended disclosures contain “entirely
revised damage claims” that should be stricken. The Court agrees in part.
In particular, the Court notes that Cannon has listed specific “fraud” damages in its
disclosures for the first time. (Compare Palen Decl. Exs. 4-7 with Palen Decl. Ex. 9.)
The time for disclosing the calculation of such damages, however, has long since passed.
Moreover, Cannon has offered no substantial justification for its failure, and the Court
does not believe that the untimely disclosure is harmless, since it has prevented Sensus
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from undertaking discovery related to the fraud damages and requires Sensus’s damages
expert to amend her opinions (if possible) in the eleventh-hour.2 Accordingly, this
portion of the Motion is GRANTED, and Cannon will be precluded from presenting
evidence of “fraud” damages at trial. See Fed. R. Civ. P. 26(a)(1)(A)(iii) (requiring
disclosure of “a computation of each category of damages claimed”); Fed. R. Civ. P.
37(c) (noting that party failing to make timely Rule 26(a) disclosure may not use such
information or evidence at trial, unless the failure was “substantially justified or
harmless”); US Salt, Inc. v. Broken Arrow, Inc., Civ. No. 07-1988, 2008 WL 2277602, at
*4 (D. Minn. May 30, 2008) (Kyle, J.) (precluding evidence supporting belatedly
disclosed damages theory), aff’d, 563 F.3d 687 (8th Cir. 2009). As a result, Cannon’s
fraud claim necessarily fails and will be dismissed. See, e.g., Mulcahy v. Fenton Sub
Parcel D, LLC, No. A10-23, 2010 WL 4181263, at *4 (Minn. Ct. App. Oct. 26, 2010)
(“[P]roof of damages is essential to a fraud claim.”); Ross v. Foremost Ins. Co., 998 A.2d
648, 654 (Pa. Super. Ct. 2010) (same).3
Sensus also asks the Court to “strike Cannon’s claim for lost profits damages”
because Cannon’s amended disclosures “make[] clear that this calculation requires expert
testimony for presentation.” (Sensus Mot. at 1.) The Court does not agree and hence
DENIES this portion of the Motion. The Court reminds Cannon, however, that fact
2

Cannon claims that its fraud damages overlap with its warranty damages to some extent, but it
also makes clear that the damages are not entirely duplicative. (See Cannon Mem. at 8-9.)
3

As the Court noted in its Order on the parties’ summary-judgment Motions, it is unclear
whether Minnesota or Pennsylvania law applies to Cannon’s fraud claim. (See Doc. No. 124 at
25-26.) Each requires proof of damages, however.
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witnesses who testify at trial regarding Cannon’s damages must not stray into expert
testimony. (See Doc. No. 361 at 4-5.)
Finally, Sensus also asks the Court to “re-affirm[] [its] prior rulings excluding
Cannon’s claim for management costs at trial.” (Sensus Mot. at 1.) The Court’s prior
Orders speak for themselves and need not be “re-affirmed,” and accordingly this portion
of the Motion also is DENIED.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Sensus’s Motion in Limine to Exclude Cannon’s Untimely Document
Production and Amended Disclosure (Doc. No. 367) is GRANTED IN PART and
DENIED IN PART as set forth above, and Cannon’s fraud claim (Am. Compl. ¶¶ 27-37)
is DISMISSED WITH PREJUDICE.

Dated: May 4, 2011

s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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