Johnson v. The Capital Offset Company, Inc. et al
Filing
187
ORDER denying 175 Motion in Limine to Exclude Certain Evidence of Damages. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Alford Johnson, as Trustee
of the Martha Wood Trust
v.
Civil No. 11-cv-459-JD
Opinion No. 2014 DNH 247
Puritan Press, Inc.
d/b/a Puritan Capital
O R D E R
Alford Johnson, as the trustee of the Martha Wood Trust,
brought suit against The Capital Offset Company, Inc., which is
now Puritan Capital; its president, Jay Stewart; a consultant who
later worked for Puritan Capital, Stephen Stinehour; and Acme
Bookbinding Company, alleging claims arising from the printing
and binding of a photography book, Spiritual Passports.
Puritan
Capital, Stewart, and Stinehour move, in limine, to exclude
certain evidence of damages.
Johnson objects.
Background
This case was scheduled for trial in March of 2014 and the
final pretrial conference was scheduled for February 6, 2014, but
was continued.
Before the trial date was continued, the parties
filed pretrial materials, including motions in limine.
Puritan
Capital, Stewart, and Stinehour moved to exclude certain evidence
of damages claimed by Johnson.
In response, Johnson agreed that
certain costs associated with producing Spiritual Passports were
not recoverable because he intended to reproduce the book and
those costs would not be wasted for purposes of reproducing the
book.
In the order denying the defendants’ motion, the court noted
that Johnson agreed to exclude the listed amounts, which left
only seventeen items in dispute, listed in Appendix A to the
order.
After analyzing the seventeen disputed items, the court
concluded that those amounts were incurred in preparation to
produce Spiritual Passports and were recoverable as damages.
The
court also noted that Johnson had acknowledged he could not
recover damages both for wasted efforts in producing the original
book and for costs of reproducing the book.
The court required
Johnson to elect which damages he would seek at trial.
On June 19, 2014, Johnson elected to seek damages for the
costs of wasted efforts in producing the original book.
In the
notice of his election, Johnson stated that when he responded to
the defendants’ motion in limine seeking to exclude those
damages, he intended to reproduce the book and for that reason he
did not object to excluding evidence of costs that would not have
been wasted if he had reproduced the book.
Having decided not to
reproduce the book, Johnson stated that he intended to claim as
damages the costs that he previously agreed not to pursue.
The
defendants did not respond to Johnson’s notice of election of
damages.
2
Discussion
The defendants move to exclude evidence of the costs that
Johnson previously agreed not to pursue on the ground that those
costs are claimed as damages only because Johnson decided not to
reproduce the book and the defendants did not cause him to make
that decision.1
They also argue that those costs cannot be
recovered as damages because Johnson is required to mitigate his
damages by reproducing the book.
A.
Causation
The disputed costs are for services Johnson obtained in
preparation for producing Spiritual Passports, which include
payments to Susan Cox for art direction for the book, payments to
a “writer,” a translation of the book into Spanish, and print
images for the book.
A reproduced book would have used the
results of those services, just as the original book did.
The
defendants argue that those costs, which Johnson now claims as
damages, are not attributable to them because they did not cause
Johnson to decide not to reproduce the book.
1
The defendants wisely do not argue that Johnson is estopped
from claiming the costs that he previously abandoned, because a
theory of judicial estoppel would be difficult to establish in
the circumstances of this case. See, e.g., Reed Elsevier, Inc.
v. Muchnick, 559 U.S. 154, 170 (2010); Healey v. Spencer, 765
F.3d 65, 76 (1st Cir. 2014).
3
Without a reproduced book, Johnson contends that those
services were wasted in the same way other costs of producing the
book were wasted.
Johnson contends that the defendants caused
the book to be so badly printed and bound that it was a total
loss and that all of the costs of producing the book were wasted.
For that reason, Johnson contends that the defendants caused him
to lose all of the costs of producing the book, including the
costs that might not have been lost if he had pursued a
reproduction.
The defendants’ argument that they did not cause Johnson not
to reproduce the book misses the point.
Johnson’s damages theory
is that all of the costs of producing the original book were
wasted because of the defendants’ actions, omissions, and
misrepresentations, unless some of those services were useful for
reproducing the book.
Without a reproduced book, however, no
savings based on those services exist.
Therefore, Johnson need
not show that the defendants caused him not to reproduce the book
to recover the disputed costs.
B.
Mitigation
The defendants also argue that Johnson cannot introduce
evidence of the disputed costs because he is required to mitigate
his losses by reproducing the book.
The defendants reason that
if the disputed costs would not be lost if the book were
reproduced, then Johnson is required to reproduce the book to
4
avoid that loss.
Having chosen not to reproduce the book, the
defendants assert, Johnson cannot claim the disputed costs as
damages.
Under New Hampshire law, “[a]s a general rule, plaintiffs
may not recover damages for harm that could have been avoided
through reasonable efforts or expenditures.”
Flanagan v.
Prudhomme, 138 N.H. 561, 575 (1994); accord Grenier v. Barclay
Square Commercial Condo. Owners’ Ass’n, 150 N.H. 111, 119 (2003).
In the context of breach of contract, the claimant “must take
such measures to lessen his or her losses as can be effectuated
with reasonable effort and without undue risk.”
Cummings, 165 N.H. 763, 768 (2013).
Audette v.
“The defendants bear the
burden of proving that the plaintiff failed to mitigate damages.”
Grenier, 150 N.H. at 119; accord Audette, 165 N.H. at 768; see
also Parem Contracting Corp. v. Welch Const. Co., Inc., 128 N.H.
254, 259-60 (1986).
To succeed on the mitigation defense, the defendants would
have to show that Johnson could have avoided the loss of the
disputed costs by reproducing the book and that reproducing the
book would have entailed only reasonable effort and expenditures.
The motion in limine does not provide that proof.
Therefore, the
defense of mitigation of damages does not preclude Johnson from
introducing damages evidence.
5
Conclusion
For the foregoing reasons, the defendants’ motion in limine
to exclude certain evidence of damages (document no. 175) is
denied.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
December 1, 2014
cc:
Lawrence F. Boyle, Esq.
Gary M. Burt, Esq.
Anthony M. Campo, Esq.
Thomas J. Pappas, Esq.
Arnold Rosenblatt, Esq.
Mark W. Shaughnessy, Esq.
William N. Smart, Esq.
6
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?