rWashington et al v. Kellwood Company
Filing
277
OPINION & ORDER re: 254 EMERGENCY MOTION to Continue Trial Date to Designate Experts filed by Sunday Players, Inc., Daryl K. Washington, 255 EMERGENCY MOTION for Reconsideration re; 249 Memorandum & Opinion, filed by S unday Players, Inc., Daryl K. Washington, 274 LETTER MOTION for Oral Argument on Plaintiffs' Motion for Reconsideration and Alternative Motion for Leave for Plaintiffs to Designate Experts. The Court does not take lightly this de cision to deny the plaintiffs a second opportunity to prove their damages to a jury. And had the plaintiffs' second pretrial submissions not revealed that they intended to pursue damages wildly beyond any reasonable foundation, the Court may wel l have proceeded apace. But the damages estimates in the second proposed Joint Pretrial Order, the arguments the plaintiffs made in opposition to the defendant's in limine motion, and the evidence they offered in their proposed exhibit list left the Court certain that the trial would end by directed verdict. The Court, therefore, elected to conserve its resources and the time and service of our jurors by accelerating the inevitable. The reconsideration motion and motion to designate new t rial experts are DENIED. The Clerk of Court is instructed to terminate the motions docketed at ECF Nos. 254, 255, and 274, enter judgment in favor of the plaintiffs for one dollar, and close this case. (As further set forth in this Order.) (Signed by Magistrate Judge Sarah Netburn on 9/30/2016) (kko) (Main Document 277 replaced on 9/30/2016) (kko).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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9/30/2016
DARYL K. WASHINGTON, et al.,
Plaintiffs,
05-CV-10034 (SN)
OPINION & ORDER
-againstKELLWOOD COMPANY,
Defendant.
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SARAH NETBURN, United States Magistrate Judge:
The only question remaining in this breach of contract case is whether the Court should
allow a retrial on damages to proceed despite a lack of non-speculative evidence.
A court “should not grant a new trial” simply because “the losing party believes it can
present a better case if afforded another chance.” Libutti v. United States, 178 F.3d 114, 118-19
(2d Cir. 1999). The plaintiffs’ motion for reconsideration seeks to retry their case with entirely
new evidence. The linchpin of their motion is a pair of documents that the plaintiffs have never
before sought to use in this litigation. The plaintiffs’ expert did not rely on these documents.
They were not part of the summary judgment briefing. They were not introduced at the first trial.
And they were not on the extensive trial exhibit list for the second trial. The Court will not
proceed with a retrial because the plaintiffs think they can present a better case with this
evidence. Litigation is not an iterative process. Accordingly, the motion for reconsideration is
denied, and the Court will enter judgment as a matter of law in the amount of one dollar.
OVERVIEW
This order assumes familiarity with the Court’s prior decisions. At trial, the plaintiffs
(collectively, “Sunday Players”) failed to prove their theory of damages as a matter of law. Their
expert testified that Sunday Players, a start-up apparel company, would have sold half the
volume of the market leader Under Armour within a matter of years. The Court ruled that this
testimony was “sheer surmise and conjecture” and vacated a jury award of $4,350,000 in lost
profits. ECF No. 212 at 28-29 (Order on Motion for Judgment as a Matter of Law (“JMOL
Order”)). The Court ordered a retrial limited to lost value damages.
Given a second opportunity to prove their case, Sunday Players made clear that they had
no intention of pursuing a realistic damages award. In the proposed Joint Pretrial Order, the
plaintiffs increased their estimated damages from the $4.35 million that the Court set aside as too
speculative to a range of $5 to $140 million. The Court scrutinized their proffered evidence and
concluded that they could not prove that they lost millions of dollars in value. They could not
rely on a prior income history because the fledgling brand sold less than $200,000 over its entire
lifespan. They could not rely on expert testimony because their expert’s opinion was based on
“sheer surmise and conjecture.” ECF No. 249 at 7. They could not rely on evidence of sales of
comparable businesses because their two proposed comparators—Phat Fashions and Under
Armour—were not comparable. They could not rely on the testimony of Sunday Players’s
owners because their personal knowledge and experience could not rationally support
multimillion dollar value estimates. They could offer no evidence of prior offers because the trial
evidence showed that there had been none. And their lay testimony regarding the effectiveness of
sales and marketing efforts lacked the specifics required to prove their case.
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The Court’s ruling on the in limine motions left the plaintiffs with virtually no admissible
evidence to establish lost business value. Accordingly, to conserve judicial resources, the Court
adjourned the trial and directed the parties to appear for oral argument on why the Court should
not reconsider its JMOL Order and enter judgment as a matter of law for nominal damages.
Sunday Players moved for reconsideration, arguing that the Court should allow them to
introduce two heretofore unseen profit projections as proof of its value. To be clear, Sunday
Players did not introduce these profit projections at the first trial. It did not include them on its
list of nearly 200 proposed trial exhibits for the second trial. It did not question any deposition
witness about them, including Kellwood’s Rule 30(b)(6) witness. And its damages expert did not
rely on them. The reason seems clear. Kellwood’s draft budget shows Sunday Players making
only $1.35 million during the period 2004-2006, but Sunday Players has consistently sought
much more. Serious questions about both documents’ admissibility also abound. The provenance
of Kellwood’s document is not clear from its face, and Sunday Players has not shown that it can
establish a foundation for introducing it into evidence. Sunday Players’s own estimate, made
sometime in 2002 or 2003, reflects nothing more than the owners’ optimistic projections that
were undermined by subsequent events (namely, Sunday Players’s failure to attract investment
capital and sell hundreds of thousands of dollars’ worth of merchandise in 2003 and Kellwood’s
failure to sell a single product over 17 months).
Sunday Players also asks the Court to reconsider the exclusion of its owners’ lay value
estimates. It argues that the Court failed to appreciate its owners’ qualifications, experience, and
market research. But the Court has already considered and rejected the plaintiffs’ arguments and
sees no basis for revisiting its prior decision.
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I.
Standard of Review
“Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3 govern motions for
reconsideration, and these rules are intended to ensure the finality of decisions and to prevent the
practice of a losing party examining a decision and then plugging the gaps of a losing motion”
with additional facts and arguments. TufAmerica, Inc. v. Diamond, 12-cv-3529 (AJN), 2016 WL
3866578, at *1 (S.D.N.Y. July 12, 2016) (internal quotation marks omitted). A reconsideration
motion is not “a vehicle for a party dissatisfied with the Court’s ruling to advance new theories
that the movant failed to advance in connection with the underlying motion, nor to secure a
rehearing on the merits with regard to issues already decided.” Parrish v. Sollecito, 253 F. Supp.
2d 713, 715 (S.D.N.Y. 2003). Instead a “motion for reconsideration should be granted only when
the defendant identifies an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel
of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013) (internal quotation
marks omitted).
The Court, in its discretion, can exclude evidence from a retrial that was not offered
during the first trial. See Habecker v. Clark Equip. Corp., 36 F.3d 278, 287-89 (3d Cir. 1994);
Total Containment, Inc. v. Dayco Prods., Inc., 177 F. Supp. 2d 332, 338-39 (E.D. Pa. 2001);
Whitehead v. K Mart Corp., 173 F. Supp. 2d 553, 564-56 (S.D. Miss. 2000). The touchstone is
whether excluding the evidence advances fairness to the parties and judicial economy. Rochez
Bros. v. Rhoades, 527 F.2d 891, 894 n.6 (3d Cir. 1975); see also 11 Wright & Miller, Federal
Practice & Procedure § 2803 (“Decisions respecting the admission of additional witnesses and
proof should be guided by considerations of fairness and justice to all parties.”).
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II.
The Proffered Evidence
A.
Kellwood’s Purported Profit Projections
Sunday Players argues that Kellwood’s purported revenue projections should be
introduced at the new trial. See ECF Nos. 257-4, 263-2. Sunday Players did not include this
document in its pretrial list of nearly 200 trial exhibits and has never offered it before to support
its theory of the case. Had the Court allowed the second trial to go forward, it would not have
been part of the evidence. Proffering it now is a transparent effort to plug the evidentiary gap
identified by the Court. But a motion for reconsideration does not allow a party to use stale
evidence to make new arguments. Kellwood produced the purported revenue projections with its
2010 document production. It is not “new evidence” for the purposes of a motion to reconsider
because it was available at the time of the prior order. Kolel Beth Yechiel Mechil of Tartikov,
729 F.3d at 104. And it is not evidence that the Court overlooked because it was not proffered
until this motion. The Court will not allow Sunday Players to use this motion to revise its trial
exhibit list to include this document.
Further, Sunday Players forfeited its opportunity to rely on this document by failing to
introduce it at the first trial. “Forfeiture is not a mere technicality and is essential to the orderly
administration of justice.” Freytag v. Comm’r Internal Rev., 501 U.S. 868, 894-95 (1991)
(internal quotation marks omitted). Here, the plaintiffs could have attempted to introduce
Kellwood’s projection to prove that lost profits were “within the contemplation of the parties to
the contract at the time it was made.” Kenford Co. v. Cnty. of Erie, 67 N.Y.2d 257, 261 (1986).
But Sunday Players chose not to use this document, relying instead on its damages expert.
Offered a second damages trial, Sunday Players still held it in reserve. The plaintiffs are not
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entitled to come up with yet a third way to prove their case after the Court has twice rejected
their damages theory.
Finally, the purported revenue projection does not appear to be admissible. Sunday
Players simply cannot establish any foundation for it. Sunday Players’s owner, plaintiff Daryl K.
Washington, testified in his deposition that he had never seen any projection prepared by
Kellwood; he cannot introduce the document. See ECF No. 272-8 at 3 (Washington Dep.
171:24-172:23). Kellwood’s witnesses Rick Peterson and Greg Dorf each denied making any
projections of Sunday Players’s sales. See ECF Nos. 272-4 at 3-4 (Peterson Dep. 180:5-182:14),
272-5 at 3-4 (Dorf Dep. 155:5-158:9), 272-6 at 3-4 (Trial Tr. 624:15-625:12 (Dorf’s testimony),
272-7 at 3-4 (Trial Tr. at 968:4-19, 985:15-19 (Dorf’s testimony)). There is no evidence of who
created this document, how, or even when it was made. The document hardly speaks for itself
and is not admissible without foundation testimony that Sunday Players does not have.
In short, the Court concludes that excluding this evidence from retrial will not result in
unfairness to the plaintiffs because they had the opportunity to offer this evidence earlier in the
proceedings and to establish a foundation for it. They declined to do so. In the interests of
judicial economy, the Court will preclude the plaintiffs from propounding yet another new theory
for damages based on this document.
B.
Sunday Players’s Business Plan
Sunday Players also proposes to proffer for the first time profit projections from a
business plan that its principals made sometime between 2002 and 2003. (They cannot say
when.) The plaintiffs’ expert did not consider this document, it was not offered into evidence at
summary judgment or the first trial, and it did not appear on Sunday Players’s lengthy list of
exhibits for the proposed retrial. For the same reasons that Sunday Players cannot introduce the
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newly proffered Kellwood projections, it also cannot rely on this document. It is not “new
evidence” because it was available to the plaintiffs at the time of trial, and the plaintiffs have
forfeited this document to prove their damages theory.
The document also has fundamental evidentiary flaws and would be precluded under
Federal Rule of Evidence 403 because it would mislead the jury. Quite simply, it has limited
relevance in determining Sunday Players’s value on the date of breach.
The measure of lost value is what an informed, willing buyer would have paid for the
business at the date of breach, in this case March 2005. See Schonfeld v. Hilliard, 218 F.3d 164,
178 (2d Cir. 2000). But the document hails from 2003 (or 2002), two (or three) years before the
breach. A willing buyer would not rely on information that is this old when valuing Sunday
Players—especially when intervening events made the company’s projections obsolete. For
example, the document assumes that Sunday Players would have earned $517,380 in revenue
during 2003, see ECF No. 263-1 at 7, but the company’s actual revenues were closer to $43,000,
see ECF No. 272-13 at 2 (Defendant’s Tr. Exhibit KK). It also assumes that Sunday Players
would have attracted $1,500,000 in initial capital, see ECF No. 263-1 at 7-8, but the company
never received any significant investment.
The plan is nothing more than “the entrepreneur’s cheerful prognostications,” which are
not enough to prove lost profits or lost value. Schonfeld, 218 F.3d at 173 (internal quotation
marks omitted). The budget shows a growth rate of 525% percent in revenue between 2003 and
2004, 170% percent between 2004 and 2005, and 140% between 2005 and 2006. Even if
historical events had not undermined these projections—Sunday Players made hardly any sales
during this period—a reasonable buyer would have doubted Sunday Players’s aggressive
optimism. The revenue projections are not based on fundamentals, such as a historic growth rate
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of sales or an appropriate comparator, but on a speculative assumption that Sunday Players
would sextuple its revenue in the space of a year and more than double it for two years
thereafter. There is simply no basis for that assumption. This business plan might be good
marketing, but it is not something that a bona fide buyer would rely upon when valuing the
company. Accordingly, it would be excluded under Rule 403.
C.
MTV’s Purported Projections
The plaintiffs seek to introduce MTV’s projections that Sunday Players would capture
10-15% of the compression apparel market. The Court has consistently found this evidence to be
unreliable and inadmissible for its truth. It is based on the hearsay testimony of Angela Jackson,
who did not perform the purported projections and cannot speak on behalf of MTV. Sunday
Players has never produced any documents showing MTV’s projection at any stage of this
litigation—including this motion. In the Daubert opinion, the Court found Jackson’s testimony
on market share research to be unreliable. See ECF No. 57 at 62 (“This statement by Ms. Jackson
may well corroborate plaintiffs’ assertion that some projection was done. It does not, however,
represent what that projection may have been. Instead . . . this is nothing but the entrepreneur’s
cheerful prognostications . . . .” (internal quotation marks omitted)). At the first trial, the Court
excluded testimony regarding specific market share projections because it was hearsay. See ECF
No. 159 at 43 (Pretrial Conf. Tr. 43:3-8) (“There is no report to put in. There is no business
record here. I’m also not going to allow [Jackson] to opine, as I don’t think she is capable of
doing, about what the percentages were or anything about this survey. As I understand it, there is
no foundation.”), 44 (Pretrial Conf. Tr. 44:5-16) (“[W]e don’t have the survey. There is no basis
for admitting it for its truth as a business record because we don’t have the survey. She can
testify about what she heard . . . . She can testify about that because it is relevant and goes to her
8
state of mind . . . . But the actual survey and details of it, there is just no foundation.”). At trial,
Jackson gave limited testimony about MTV’s consumer research, but the Court instructed the
jury not to consider it for its truth. See Trial Tr. at 494.
The Court sees no reason to revisit these rulings. Even if Jackson’s testimony can
establish that MTV conducted consumer research and made profit projections, she cannot
produce the actual projections or testify about the methodology used to achieve them.
D.
Washington’s Proffered Testimony
The plaintiffs argue that Washington, as an owner of Sunday Players and an experienced
accountant, can testify about the company’s lost profits or lost value, using profit projections
from Kellwood, Sunday Players, and MTV as a basis for his estimates. They contend that his lay
opinion testimony would be admissible under Federal Rule of Evidence 701 and sufficient for
the jury to award a lost value verdict. The Court has previously ruled that Washington’s
testimony would not be admissible under Rule 701. See ECF No. 249 at 11-12. The Court sees
no reason to reconsider this conclusion.
Rule 701 authorizes lay opinion testimony only when it is “rationally based on the
witness’s perception,” “helpful to clearly understanding the witness’s testimony or to
determining a fact in issue,” and “not based on scientific, technical, or other specialized
knowledge.” Fed. R. Evid. 701. The rule authorizes “the owner or officer of a business to testify
to the value or projected profits of the business without the necessity of qualifying the witness as
an accountant, appraiser, or similar expert.” Fed. R. Evid. 701 Advisory Comm. Notes, 2000
Amendments. This testimony is not admitted because the owner is an expert at valuing his or her
own company. It is admitted “because of the particularized knowledge that the witness has by
virtue of his or her position in the business.” Id. “When a witness has not identified the objective
9
bases for his opinion, the proffered opinion obviously fails completely to meet the requirements
of Rule 701, first because there is no way for the court to assess whether it is rationally based on
the witness’s perceptions, and second because the opinion does not help the jury but only tells it
in conclusory fashion what it should find.” United States v. Rea, 958 F.2d 1206, 1216 (2d Cir.
1992).
In short, Rule 701 assumes that a business owner will make a business valuation based on
his or her own personal experience of running the company. That experience includes a past
history of sales, trends of historic growth, and knowledge of the company’s capital structure and
its assets. When an owner’s valuation rests on speculative projections of unrealistic future
profits, it should be excluded because it is not rationally based on the witness’s perceptions. See
Von Der Ruhr v. Immtech Int’l Inc., 570 F.3d 858, 862-63 (7th Cir. 2009).
The Court has already likened this case to Ho Myung Moolsan Co. v. Manitou Mineral
Water, Inc.. There, the district court rejected a business owner’s “wildly speculative sales
projections” that were “supported neither by data of actual sales nor independent market
research.” 07-cv-7483 (RJH), 2010 WL 4892646, at *10-11 (S.D.N.Y. Dec. 2, 2010). The
plaintiff business owner introduced his own projections that he would be able to sell bottles of
water for $15 a bottle by walking door to door and convincing people that the water had
medicinal powers. The district court concluded that there was no basis—other than the owner’s
fanciful predictions—that he could sell water for $15 a bottle.
The plaintiffs argue that Ho Myung Moolsan is distinguishable because, unlike that
business owner, Washington has training in making business valuations, firsthand knowledge of
the business’s operations, and actual research into the compression apparel industry. The Court is
not persuaded. Washington may well be a highly qualified accountant, and the Court does not
10
doubt that he has valued other businesses. But his expertise is not what makes his testimony
admissible under Rule 701. It is his firsthand knowledge of Sunday Players’s sales and assets.
His proffered testimony is not “rationally based” on that knowledge, and it should be excluded.
Fed. R. Evid. 701.
Washington asserts that he projected that Sunday Players “could achieve approximately a
20% share of the compression wear market” given the marketing assistance of Kellwood. ECF
No. 257 at 5 (Washington Aff.). Using this market share figure, he asserts that “the bottom line
projection of lost income for Sunday Players in 2004 was approximately $3,264,400,” and
“$3,943,800” for 2005. ECF No. 257 at 5 (Washington Aff.). But the Court has already
concluded that Sunday Players did not prove that Kellwood’s breaches caused lost profits.
Washington does not base those numbers on his own experience of selling compression
apparel—Sunday Players had approximately $43,000 in revenue during 2003. Other than
referring generically to his own research, he does not explain how the company was going to
increase its revenue by a factor of 75 in the space of a year. There is simply no non-speculative
evidence that Sunday Players could have captured one fifth of the compression apparel market in
one year. Trial evidence showed that Nike, an established brand, spent $30 million in advertising
to get from three and a half percent of the market to five or six percent. See ECF No. 212 at 2324 (JMOL Order). Washington’s belief that Sunday Players could somehow become a
multimillion dollar company overnight is just as “wildly speculative” as the salesman’s belief
that he could sell water for $15 a bottle. Ho Myung Moolsan, 2010 WL 4892646, at *11.
Citing Lee v. Joseph E. Seagram & Sons, Inc., Sunday Players argues that a business
owner can testify about business value even for a venture that “never got off the ground.” 413 F.
Supp. 693, 705 (S.D.N.Y. 1976). But the plaintiffs in Lee proved their damages through the
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testimony of a valuation expert, not the business owners themselves. Id. at 706 (“Plaintiffs’ proof
of lost profits was admitted via the testimony of Ernest L. Sommer, a Certified Public
Accountant, who was duly qualified at trial as an expert with experience in evaluating business
investments in general and liquor distributorships in particular.”) Some of the topics Washington
professed to study—consumer behavior, how similar products are marketed, and brand
development—might be relied on by an expert to value Sunday Players. But Washington has not
been qualified as an expert under Rule 702. Instead he can rely only on his personal knowledge
under Rule 701. That personal knowledge is not enough to prove that Sunday Players lost
millions of dollars in value.
Sunday Players’s request to allow Washington to testify under Rule 701 is, in essence, a
request to introduce the revenue projections of Kellwood, Sunday Players, and MTV through his
testimony. See ECF No. 257 at 5-6 (Washington Aff.). But for the reasons discussed above, these
projections are each independently inadmissible on retrial. Those exhibits must be excluded, and
so must his testimony.
E.
Curley Kelly’s and Izell Reese’s Proffered Testimony
The plaintiffs proffer the testimony of co-owners Curley Kelly and Izell Reese to prove
the company’s value. The Court has previously decided that their testimony would not be
admissible under Rule 701. Nothing in the plaintiffs’ offer of proof suggests that the Court was
wrong.
Kelly’s affidavit is replete with conclusory allegations that Sunday Players’s owners “had
a thorough understanding of the market and knew what types of marketing, sales, and media
strategies would be successful.” ECF No. 260 at 4. It does not disclose any facts that would
reassure the Court that he had experience valuing a start-up brand with negligible sales. It does
12
not disclose how his experience selling small quantities of Sunday Players merchandise would
justify a multimillion dollar valuation. He is therefore unqualified to testify under Rule 701. His
conclusory assertions that the company researched the market are little better than the “research”
that led the plaintiff in Ho Myung Moolsan to price his water at $15 a bottle. 2010 WL 4892646,
at *8.
Reese’s affidavit dwells on his experience as a professional football player and his
connections to potential athlete endorsers. He does not attempt to value his connections nor does
he indicate a basis for making such a valuation. He asserts that athletes told him that they were
ready to sign endorsement deals, but this assertion is, of course, hearsay. Like Kelly, he alleges
in a conclusory fashion that he performed “analyses of the market demand, market growth,
projected sales and income Sunday Players could generate.” ECF No. 261 at 4. But he does not
give the Court any reason to believe that he had sufficient experience valuing a start-up brand
with negligible sales to make his lay opinion admissible under Rule 701.
F.
Angela Jackson’s Proffered Testimony
The plaintiffs proffer Jackson’s testimony to introduce MTV’s market share projections
and to give details about MTV’s viewership. As discussed above, MTV’s market share
projections are not admissible. The details Jackson proposes to give about MTV’s viewership are
not relevant to a lost value calculation. Sunday Players never entered into a promotional
agreement with MTV, and the details of the unconsummated deal would not help a buyer value
Sunday Players. And the testimony cannot be used to prove lost profits because the Court has
already detailed the extensive holes in Sunday Players’s lost profits case. See ECF No. 212 at 1627 (JMOL Order). Jackson’s testimony would not be sufficient to plug those holes because she is
not an expert on marketing and cannot explain the relationship between marketing dollars spent
13
and revenues achieved—a calculation beyond the ken of the average juror. But even assuming
that her additional testimony could plug the holes in Sunday Players’s case, the Court would
exclude it anyway. The retrial is not an opportunity to retry the case with the benefit of the
Court’s guidance.
G.
Christopher Plumlee’s Proffered Testimony
The plaintiffs proffer Christopher Plumlee’s testimony as lay opinion regarding the
effectiveness of Sunday Players’s preferred marketing plan. This testimony is not relevant to
determining the brand’s value. For the reasons stated above, Plumlee is not competent to offer
lay opinion testimony under Rule 701 based on Sunday Players’s own speculative profit
projections. Nor will his testimony regarding Sunday Players’s proposed marketing strategy be
admissible in the second trial for the same reasons that Jackson’s testimony would be excluded.
The retrial is not an opportunity for the plaintiffs to plug the gaps in their flawed case for
causation.
III.
Motion to Designate New Trial Experts
The plaintiffs move to reopen discovery so that they can designate a new expert on lost
value damages. When a new trial has been ordered, a court in its discretion can allow new expert
testimony if it would avoid “manifest injustice.” Martin’s Herend Imports, Inc. v. Diamond &
Gem Trading United Sates of Am. Co., 195 F.3d 765, 775-76 (5th Cir. 1999) (internal quotation
marks omitted).
The plaintiffs made a deliberate tactical decision to rely on one expert in the first trial. He
engaged the jury in a flight of fancy that resulted in a multimillion dollar lost profits verdict for a
company that sold less than $200,000 of merchandise in its entire history. The Court does not
perceive manifest injustice in preventing the plaintiffs from propounding a new, speculative
14
theory of damages, and the request is denied. Moreover, the case is now 11 years old. It would be
unfair to the defendant to prolong this litigation further.
IV.
Nominal Damages
In its Rule 50 Order, the Court concluded that it would “be within its discretion to enter
judgment as a matter of law awarding the plaintiffs nominal damages.” ECF No. 212 at 29-30
(JMOL Order). Instead, it exercised its discretion to order a new damages trial in the interests of
justice. Having seen the evidence Sunday Players would present at retrial—and having
considered its theory that it should receive several million more dollars than the verdict the Court
has already found to be too speculative—the Court reconsiders its prior order. Sunday Players
has not shown that they can prove through admissible evidence a quantifiable lost business
value, and the Court will enter judgment in their favor for one dollar.
CONCLUSION
The Court does not take lightly this decision to deny the plaintiffs a second opportunity to
prove their damages to a jury. And had the plaintiffs’ second pretrial submissions not revealed
that they intended to pursue damages wildly beyond any reasonable foundation, the Court may
well have proceeded apace. But the damages estimates in the second proposed Joint Pretrial
Order, the arguments the plaintiffs made in opposition to the defendant’s in limine motion, and
the evidence they offered in their proposed exhibit list left the Court certain that the trial would
end by directed verdict. The Court, therefore, elected to conserve its resources and the time and
service of our jurors by accelerating the inevitable.
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The reconsideration motion and motion to designate new trial experts are DENIED. The
Clerk of Court is instructed to terminate the motions docketed at ECF Nos. 254, 255, and 274,
enter judgment in favor of the plaintiffs for one dollar, and close this case.
SO ORDERED.
DATED:
New York, New York
September 30, 2016
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