Janson et al v. LegalZoom.com, Inc.

Filing 166

MOTION in limine to Exclude Evidence Concerning Prejudgment Interest filed by Robert M. Thompson on behalf of LegalZoom.com, Inc.. Suggestions in opposition/response due by 8/19/2011 unless otherwise directed by the court. (Thompson, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TODD JANSON, GERALD T. ARDREY, CHAD M.
FERRELL, and C & J REMODELING LLC, on behalf of
themselves and on behalf of all others similarly situated,
Plaintiffs,
Case No. 2:10-cv-04018-NKL
v.
LEGALZOOM.COM, INC.,
Defendant.

DEFENDANT LEGALZOOM.COM, INC.’S MOTION IN LIMINE TO
EXCLUDE EVIDENCE CONCERNING PREJUDGMENT INTEREST
Defendant LegalZoom.com, Inc. (“LegalZoom”) hereby moves to exclude evidence
concerning prejudgment interest. LegalZoom requests that the Court prohibit plaintiffs from
presenting at trial any documentary evidence, factual or expert testimony, or argument
suggesting that they are entitled to prejudgment interest calculated from a date earlier than the
filing of the Petition on December 17, 2009. In support of this Motion, LegalZoom states as
follows:
1.

Testimony of plaintiffs’ damages expert indicates that plaintiffs intend to seek an

award of prejudgment interest in the amount of $428,410.20. This sum represents interest on the
calculation of class members’ purchases from LegalZoom made from December 18, 2004
through December 17, 2007, calculated from the date of the transaction through August 22,
2011, the anticipated date of trial, at the rate of 9% per annum.
2.

In a federal diversity action, the availability of prejudgment interest is a matter of

state law. Weitz Co. v. MH Washington, 631 F.3d 510, 528 (8th Cir. 2011), citing Berglund v.

State Farm Mut. Auto. Ins. Co., 121 F.3d 1225, 1230 (8th Cir. 1997); Swope v. Siegel-Robert,
Inc., 243 F.3d 486 (8th Cir. 2001).
3.

Under Missouri law, those seeking treble damages for the unauthorized practice

of law are not entitled to prejudgment interest. Carpenter v. Countrywide Home Loans, Inc., 250
S.W.3d 697, 704-05 (Mo. banc 2008).
4.

Prejudgment interest on a claim for money had and received is governed by §

408.020, which requires a demand. That requirement is strictly construed, with prejudgment
interest beginning to accumulate only from the date of the demand. Cox v. Ripley County, 2010
WL 2944428, at *5 (Mo. App. July 27, 2010).
5.

Where no demand is made prior to the filing of a lawsuit, the petition itself may

constitute a demand under Missouri law. Graybar Elec. Co., Inc. v. Federal Ins. Co., 567 F.
Supp. 2d 1116, 1128-29 (E.D. Mo. 2008). Where the only demand made is the Petition,
prejudgment interest accumulates only from the date of filing of the lawsuit. Cox, 2010 WL
2944428, at *5.
6.

Here, because Plaintiffs made no demand of LegalZoom prior to filing their

Petition, calculation of prejudgment interest under section 408.020 can begin no earlier than the
filing of plaintiffs’ Petition on December 17, 2009.
WHEREFORE, for all the foregoing reasons and for all the reasons stated in
LegalZoom’s Suggestions in Support of Motion in Limine to Exclude Evidence Concerning
Prejudgment Interest, Plaintiffs should be prohibited at trial from offering evidence or argument
suggesting that they are entitled to prejudgment interest calculated prior to the filing of the
Petition.

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C072748/0306506/1044734.2

Respectfully submitted,
BRYAN CAVE LLP
By: s/ Robert M. Thompson
Robert M. Thompson
MO #38156
James T. Wicks
MO #60409
Christopher C. Grenz
MO #62914
One Kansas City Place
1200 Main Street, Suite 3500
Kansas City, MO 64105
Tel.: [phone]
Fax: [phone]
John Michael Clear
MO #25834
Michael G. Biggers
MO #24694
One Metropolitan Square – Suite 3600
211 North Broadway
St. Louis, MO 63102
Tel.: [phone]
Fax: [phone]
Attorneys for LegalZoom.com, Inc.

CERTIFICATE OF SERVICE
I hereby certify that on August 2, 2011, I electronically filed the above and foregoing
with the clerk of court using the CM/ECF system, which will send notice of electronic filing to
all counsel of record.

s/ Robert M. Thompson

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C072748/0306506/1044734.2