United States District Court, D. Nevada
the court is the motion in limine of Metalast
International, Inc, Metalast, Inc., Sierra Dorado, Inc, David
M. Semas, Greg D. Semas, and Wendi Semas-Fauria collectively
"Metalast") to exclude evidence of undisclosed
damages (ECF No. 186). Plaintiff Chemeon Surface Technology,
LLC ("Chemeon") opposed the motion (ECF No. 207),
and Metalast replied (ECF No. 209 & 210).
the pendency of plaintiff s motion for preliminary injunction
and the District's Court's hearing on the motion in
October 2015, this court held its first case management
conference in this case on September 1, 2015 (ECF No. 46).
The court set the following discovery deadlines: (1) February
28, 2016 for fact discovery; (2) April 18, 2016 for expert
discovery; and, (3) March 28, 2016 for disclosure of expert
December 2, 2015, the court held a second case management
conference, and the parties reported that pursuant to the
District Court's order, the Bankruptcy Court scheduled a
settlement conference for February 25, 2016 (ECF No. 81). For
that reason, the parties requested, and this court granted, a
stay and extended the deadline to amend pleadings or add
parties to March 1, 2016. (Id.) The court further
ordered the parties to file a status report within seven days
after the settlement conference. (Id.)
March 9, 2016, the parties filed their joint status report to
advise that they did not settle the case and that plaintiff
intended to file its motion for leave to file an amended
complaint (ECF No. 93). On March 31, 2016, the District Court
held hearing on defendants' motion for preliminary
injunction, which it denied (ECF No. 103). Plaintiff then
filed its amended complaint on April 7, 2016 (ECF No. 108),
and defendants answered on May 3, 2016 (ECF No. 113).
6, 2016, the parties filed a joint motion to extend discovery
and related deadlines (ECF No. 124). The court granted the
joint motion and extended the following pertinent deadlines:
(1) August 29, 2016 for fact discovery; (2) September 28,
2016 for expert disclosures; and October 17, 2016 for the
close of expert discovery (ECF No. 126). The court also
scheduled monthly case management conferences for June, July,
and August 2016 to assist the parties in managing discovery
(ECF No. 132).
July 13, 2016 case management conference, the parties jointly
requested a brief extension of the discovery plan and
scheduling order as follows: (1) September 28, 2016 deadline
for fact discovery; (2) October 28, 2016 deadline for initial
expert witness disclosures; (3) November 16, 2016 deadline
for rebuttal expert disclosures; and, December 16, 2017
deadline for the filing of dispositive motions (ECF No. 155).
October 6, 2016, Metalast filed the present motion in
limine. (ECF No. 186). Two weeks later, on October 21,
2016, the parties submitted a request for a settlement
conference with the court, which the District Court approved
(ECF No. 197). In light of the requested settlement
conference, the court approved stipulations to stay briefing
on two pending discovery motions, including defendants'
motion in limine, until after the conclusion of the
settlement conference (ECF No. 196). The settlement
conference was then scheduled for January 6, 2017.
case did not settle, and the court reported the results on
the record (ECF No. 205). The court noted that counsel needed
to meet and confer concerning briefing on two pending
discovery motions and directed the parties to meet and confer
regarding a briefing schedule. The parties did not submit a
report concerning outstanding discovery, so the court issued
an order on January 25, 2017, and once again ordered the
parties to advise the court how they proposed to proceed by
January 30, 2017 (ECF No. 206).
parties then reported that the two pending discovery motions
(ECF Nos. 184 & 186) needed to be fully briefed, but
reported that they could not agree about anything else with
respect to discovery or dispositive motion deadlines (ECF No.
208). The court approved the briefing schedule for the two
discovery motions (ECF No. 213) and subsequently granted
plaintiffs motion to compel (ECF No. 221).
Discussion and Analysis
26(a)(1)(A)(iii) requires a party to provide "a
computation of each category of damages claimed by the
disclosing party." It also requires the disclosing party
to "make available for inspection and copying as under
Rule 34 the documents or other evidentiary material... on
which each computation is based, including material bearing
on the nature and extent of injuries suffered."
"While a party may not have all of the information
necessary to provide a computation of damages early in the
case, it has a duty to diligently obtain the necessary
information to prepare and provide its damages computation
within the discovery period." Jackson v. United
Artists Theatre Circuit, Inc., 278 F.R.D. 586, 593 (D.
recognize that the plaintiff may not have all information
concerning damages available to it at the outset of the case,
and also acknowledge that a plaintiff has an ongoing duty to
supplement its damages calculation as the case progresses.
McSwiggin v. Omni Limousine, 2016 WL 1030053, at *4
(D. Nev. Mar. 10, 2016).
court has reviewed the status of discovery as of last fall
2016, when Metalast filed its motion in limine. The
court is satisfied that Chemeon continued to disclose its
computation of damages as part of its seventh supplemental
disclosure, and that it also produced documents in support of
these damages (ECF No. 207, Exs. 1 & 2). In addition,
Chemeon provided responses to written discovery concerning
particular claims for relief alleged in the amended
complaint. (Id., Ex. 3). Deposition discovery also
preliminarily fleshed out damages concerning allegations of
insider sales and its effect of operations, which Chemeon
claims affect the value of the assets that ...