Because FCA has provided an exact amount of damages and a description of the types of costs forming the basis of this figure, it has met its burden under Rule 26(a). The facts of this case stand in sharp contrast to caselaw cited by Bullock such as Multimatic, Inc. v. Faurecia Interior Sys. USA, No. 05-60120, 2007 WL 627874, at *7-8 (E.D. Mich. Feb. 26, 2007), in which the defendant utterly failed to provide an estimate or calculation of its damages until it "blindsided [the plaintiff] by calculating its damages for the first time in response to [the plaintiff's] motion for summary judgment." Bullock also contends that FCA failed to produce evidence in response to her discovery requests seeking documents relating to FCA's calculation of damages.
Thus, standing alone, the summary is not admissible and cannot be used to defeat summary judgment. See Bessemer Lake Erie R.R. v. Seaway Marine Trans., No. 1:06 CV 2392, 2008 WL 2074028, at *12-17 (N.D. Ohio May 14, 2008) (granting partial summary judgment as to damages because the plaintiffs failed, without justification, to disclose a computation of damages and supporting documents and, consequently, they could not use evidence of damages either at trial or in opposing defendants' motion for summary judgment); Multimatic, Inc. v. Faurecia Interior Sys. USA, No. 05-60120, 2007 WL 627874, at *7-8 (E.D. Mich. Fed. 26, 2007) (granting summary judgment because plaintiff failed, without justification, to timely disclose a computation of damages and, consequently, he could not use the evidence of damages either at trial or in opposing defendant's motion for summary judgment). Nevertheless, if the affidavit and attached itemized estimate of costs were admissible, they would not be enough to survive summary judgment, even when considered together with the response to Interrogatory No. 3 of Defendants' December 29, 2008 Interrogatories. Together this evidence simply does not constitute significant probative evidence showing that there is a genuine issue of fact as to whether damages could be proven by clear and convincing evidence.
"The problem with [US Salt's] response is that the time for calculating damages and disclosing its theory on damages was long ago." Multimatic, Inc. v. Faurecia Interior Sys. USA, Inc., No. 05-60120, 2007 WL 627874, at *7 (E.D. Mich. Feb. 26, 2007) (finding that party had offered no justification for its failure to disclose information regarding its damages calculation and that such failure had "blindsided" other side and therefore was prejudicial given that discovery was closed). The purpose of discovery "is to narrow the issues, to eliminate surprise, and to achieve substantial justice."
(iii) striking pleadings in whole or in part. "It has been recognized that `[t]he exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless.' Multimatic, Inc. v. Faurecia Interior Systems USA, Inc., 2007 WL 627874 (E.D.Mich. Feb. 26, 2007) (citing Dickenson v. Cardiac Thoracic Surgery of Eastern Tenn., 388 F.3d 976 (6th Cir. 2004)." Bessemer Lake Erie R.R. Co. v. Seaway Marine Transport, No. 1:06CV2392, 2008 WL 2074028, at *14 (N.D. Ohio May 14, 2008).
It has been recognized that "[t]he exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless." Multimatic, Inc. v. Faurecia Interior Systems USA, Inc., 2007 WL 627874 (E.D.Mich. Feb. 26, 2007) (citing Dickenson v. Cardiac Thoracic Surgery of Eastern Tenn., 388 F.3d 976 (6th Cir. 2004) (Plaintiff offered no justification for its failure to disclose information regarding its calculation of damages and, consequently, the court would not permit it to use evidence of damages either at trial or in opposing defendant's motion for summary judgment. Because it had no evidence of damages, plaintiffs could not prevail on its claims as a matter of law and summary judgment was granted.
Defendants argue that the failure to disclose a calculation of damages was not harmless, rendering summary judgment appropriate, because without a computation of damages from Plaintiffs, Defendants "have no way to defend against Plaintiffs' inchoate damage claims and theories." Defs.' Mot. for Summ J. Based on Failure to Disclose Damages at 4; see, e.g., Multimatic, Inc. v. Faurecia Interior Sys. USA, Inc., 2007 WL 627874, *7 (E.D. Mich. Feb. 26, 2007) (in breach of contract case, party did not include estimate or calculation of damages in its counterclaim, in initial disclosures or in interrogatory responses and did not provide an expert report on damages; finding that failure to disclose was not harmless because defendant was "blindsided," court excluded evidence and granted summary judgment). Plaintiffs, however, argue that because they have chosen to limit their damages under 15 U.S.C. ยง 1117(a) to Defendants' profits, the failure to disclose their damages computation was harmless as Defendants were in possession of all the documents that would show those damages.