House v. Player's Dugout, Inc.

Decision Date22 August 2022
Docket NumberCivil Action 3:16-cv-00594-RGJ
PartiesDR. THOMAS HOUSE, ET AL. Plaintiffs/Counterclaim Defendants v. PLAYERS' DUGOUT, INC., ET AL. Defendants/Counterclaim Plaintiffs
CourtU.S. District Court — Western District of Kentucky

DR. THOMAS HOUSE, ET AL. Plaintiffs/Counterclaim Defendants

Defendants/Counterclaim Plaintiffs

Civil Action No. 3:16-cv-00594-RGJ

United States District Court, W.D. Kentucky, Louisville Division

August 22, 2022



Defendants and Counterclaim Plaintiffs Joseph A. Newton (“Joe Newton”), Joseph John Newton (“Joseph Newton”) (collectively, the “Newtons”), and Players' Dugout, Inc. (“PDI”) (collectively, “Defendants”) move for renewed judgment as a matter of law or for a new trial under Fed.R.Civ.P. 50(b) and 59(a). [DE 170]. Plaintiffs and Counterclaim Defendants Dr. Thomas House (“Dr. House”) and the National Pitching Association, Inc. (“NPA”) (collectively, “Plaintiffs”) responded [DE 179], and Defendants replied. [DE 181]. All parties moved for attorney fees. [DE 171; DE 172]. The parties then filed responses [DE 178; DE 177], and replies [DE 180; DE 182]. These matters are ripe. For the reasons below, the Court DENIES Defendants' motion for renewed judgment as a matter of law or for new trial [DE 170], GRANTS in part Defendants' motion for attorney fees [DE 171], and GRANTS Plaintiffs' motion for attorney fees [DE 172].


The background is set forth in the Court's previous order on the parties' motions in limine [DE 128] and is incorporated by reference.

The Court held an eight day jury trial November 15, 2021 through November 24, 2021. [DE 164 at 2956]. The jury found for Dr. House and against PDI on the parties' breach of contract


claims and awarded $40,386.20 in damages to Dr. House. [Id. at 2956-57]. The jury also found for Plaintiffs on their federal trademark and unfair competition claims (“Lanham Act claims”) and awarded damages. [Id. at 2957]. The jury awarded $1 actual damages and $340,000 in lost profits damages. [Id.]. The jury similarly found for Plaintiffs on the Kentucky law claims of unfair competition, awarding compensatory damages of $1 and punitive damages of $67,649.82. [Id.].

The jury found for NPA on Defendants' defamation per se counterclaim, against NPA on Defendants' defamation per quod counterclaim, and awarded $100,000 in compensatory damages to Defendants. [Id. at 2958]. The jury found for Defendants on their counterclaim of unfair competition under federal law and awarded $25,000 in compensatory damages. [Id.]. The jury found for Defendants against NPA on the claim of tortious interference with prospective business advantage and awarded $50,000 in compensatory damages and $25,000 in punitive damages. [Id.].


A. Defendants' Renewed Motion for Judgment as a Matter of Law or for New Trial [DE 170].

The Court denied each party's motion for judgment as a matter of law at trial. [DE 162 at 2825-34, 2858-63]. Defendants now move for renewed judgment as a matter of law or for new trial. [DE 170].

I. Standard

If a court does not grant judgment as a matter of law after close of evidence and the party renews its request after a verdict is entered, the court may (1) allow the judgment to stand, (2) order a new trial, or (3) direct entry of judgment as a matter of law. Fed.R.Civ.P. 50(b). Judgment as a matter of law may be granted when “a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Imwalle v. Reliance Med. Prod., Inc., 515 F.3d 531, 543 (6th Cir. 2008) (citations omitted). In


considering such a motion, the district court must view “the evidence in a light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences.” Balsley v. LFP, Inc., 691 F.3d 747, 757 (6th Cir. 2012) (quotation marks and citations omitted). The Court may not “reweigh the evidence, question the credibility of witnesses, or substitute [its] own judgment for that of the jury.” Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 306 (6th Cir. 2016). Then, the question must be asked if “there is no genuine issue of material fact for the jury, and reasonable minds could come to but one conclusion in favor of the moving party.” Balsley, 691 F.3d at 757. If so, the court should grant the motion.

Under Federal Rule of Civil Procedure 59(a) (“Rule 59(a)”), a trial court may grant a new trial on “all or some of the issues” following a jury trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(B). The Sixth Circuit has interpreted Rule 59(a) to require a “seriously erroneous result,” as evidenced by one of three things: “(1) the verdict being against the weight of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings being influenced by prejudice or bias.” Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 104546 (6th Cir. 1996) (citing Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940); Cygnar v. City of Chicago, 865 F.2d 827, 835 (7th Cir. 1989); and Mallis v. Bankers Tr. Co., 717 F.2d 683, 691 (2d Cir. 1983)). When a new-trial motion challenges the weight of the evidence, the Court must “accept the jury's verdict ‘if it is one which reasonably could have been reached.'” Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007) (quoting Duncan v. Duncan, 377 F.2d 49, 52 (6th Cir. 1967)). “[T]he grant or denial of a new trial is purely within the discretion of the trial court and will not be reversed except upon a showing abuse of discretion.” Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). The Court cannot set aside the jury's


verdict simply because it thinks another result is more justified. See Innovation Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524, 534 (6th Cir. 2014).

a. Plaintiffs' Introduction of Lost Profits Evidence. [DE 170-1 at 3200-07].

Defendants request judgment as a matter of law or a new trial on Plaintiffs' trademark infringement and unfair competition damages. [DE 170-1 at 3207]. Defendants argue “it was an abuse of discretion to admit evidence of Plaintiffs' trademark infringement and unfair competition damages at trial, which had not been previously disclosed in discovery as required.” [Id.]. Defendants alternatively request “full supplementation by Plaintiff. . . follow up discovery. . . [and a new] trial” on the issue. [Id.]. Defendants' argument rests on an analysis of Federal Rule of Civil Procedure 26 (“Rule 26”).

Rule 26 requires a party to provide the opposing party “a computation of each category of damages claimed” as well as “the documents or other evidentiary material on which each computation is based, including materials bearing on the nature and extent of injuries suffered.” Bessemer & Lake Erie R.R. Co. v. Seaway Marine Transp., 596 F.3d 357, 366-67 (6th Cir. 2010) (quoting Fed.R.Civ.P. 26(a)(1)(A)(iii)). Courts have explained that the “documentation and evidence required by Rule 26 must be sufficient to allow the opposing party to ‘independently analyze' the claim.” Champion Foodservice, LLC v. Vista Food Exch., Inc., No. 1:13-CV-1195, 2016 WL 4468000, at *5 (N.D. Ohio Aug. 23, 2016) (citing Bessemer, 596 F.3d at 370). Rule 26(e) places an ongoing duty on parties to supplement disclosures. Fed.R.Civ.P. 26(e). Should a party fail to provide information required under Rule 26(a) or (e), the party is not allowed to use that information at trial unless the failure was substantially justified or is harmless. Fed.R.Civ.P. 37(c).


To determine whether a failure disclose is substantially justified or harmless, the Court looks to five factors set forth in Howe v. City of Akron, 801 F.3d 718, 748 (6th Cir. 2015). The five factors are (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party's explanation for its failure to disclose the evidence. “[J]udges need not apply Howe's factors rigidly.” Bisig v. Time Warner Cable, Inc., 940 F.3d 205, 220 (6th Cir. 2019) (finding omission of one Howe factor was not fatal to lower court's analysis).

Courts have explained that Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule 26(a); that is, it ‘mandates that a trial court punish a party for discovery violations in connection with Rule 26 unless the violation was harmless or is substantially justified.'” Hunt v. Hadden, 127 F.Supp.3d 780, 789 (E.D. Mich. 2015), aff'd, 665 Fed.Appx. 435 (6th Cir. 2016) (quoting Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003)). The burden is on the potentially sanctioned party to prove harmlessness. Id. (citing Roberts ex rel. Johnson, 325 F.3d at 782). In other words, the test for exclusion of evidence as a discovery sanction is very simple: “the sanction is mandatory unless there is a reasonable explanation of why the duty to disclose or supplement was not complied with or the mistake was harmless.” Bessemer, 596 F.3d at 370. Thus, as Plaintiffs sought lost profits damages but did not disclose a calculation for such damages, they have the burden of demonstrating that their failure was substantially justified or harmless.

Defendants argue that Plaintiffs violated both Rule 26(a) and (e). [DE 170-1 at 3201-03]. Defendants argue that “Plaintiffs did not ‘provide . . . a computation of each category of damages claimed' in their Rule 26(a) initial disclosures” when they “estimated compensatory damages to


be in excess of $1,000,000” and reserved the right to rely on expert testimony, but only computed damages at trial. [Id. at 3201]. Defendants also argue “at no time prior to trial did [Plaintiffs] every [sic] provide any such expert disclosure or supplementation of this superficial...

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