Gibson Brands, Inc. v. Armadillo Distribution Enterprises, Inc. et al, No. 4:2019cv00358 - Document 385 (E.D. Tex. 2021)
Court Description: MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that Armadillo Distribution Enterprises, Inc.'s Motion to Strike the Unsworn Declaration of Basil Imburgia (Dkt. 315 ) is hereby DENIED as moot. Signed by District Judge Amos L. Mazzant, III on 4/20/2021. (baf, )
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Gibson Brands, Inc. v. Armadillo Distribution Enterprises, Inc. et al Doc. 385 United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION GIBSON BRANDS, INC. Plaintiff, v. ARMADILLIO DISTRIBUTION ENTERPRISES, INC.; CONCORDIA INVESTMENT PARTNERS, LLC, DOES 1 through 10 § § § § § § § § § § § Civil Action No. 4:19-cv-358 Judge Mazzant Defendants. MEMORANDUM OPINION AND ORDER Pending before the Court is Armadillo Distribution Enterprises, Inc.’s Motion to Strike the Unsworn Declaration of Basil Imburgia (Dkt. #315). Having considered the Motion and the relevant briefing, the Court finds the Motion should be DENIED as moot. BACKGROUND On May 14, 2019, Plaintiff Gibson Brands, Inc. (“Gibson”) sued Armadillo Distribution Enterprises, Inc. (“Armadillo”) and Armadillo’s investment licenser, Concordia Investment Partners, Inc. for trademark infringement (Dkt. #1). Gibson retained a damages expert, Basil Imburgia (“Imburgia”) to calculate Armadillo’s sales of the accused products. The parties agree Gibson is required to prove sales, but that Armadillo is required to prove all deductible costs and expenses. See 15 U.S.C.A. § 1117 (a). These deductible costs include materials, shipping, customs and duties, among others. On March 4, 2020, Imburgia submitted his initial report, which asserted that Armadillo failed to prove any deductible costs. Imburgia opined that Armadillo’s disclosures were insufficient to prove deductible costs because “the company has not provided any supporting Dockets.Justia.com documentation to validate these costs.” (Dkt. #195, Exhibit 7 at ¶ 34). After that report, Armadillo produced further evidence and expert testimony identifying deductible costs. Imburgia did not supplement his original report. Armadillo moved to exclude Imburgia’s testimony (Dkt. #195). In response, Gibson provided Imburgia’s sworn declaration as an exhibit (Dkt. #221, Exhibit 1). On February 2, 2021, Armadillo moved to strike Imburgia’s unsworn 1 declaration as an improper and untimely supplementation (Dkt. #315). On February 16, 2021, Gibson responded (Dkt. #320). On February 23, 2021, Armadillo replied (Dkt. #324). On March 2, 2021, Gibson filed its Sur-Reply (Dkt. #327). Separately, on March 18, 2021, the Court denied Armadillo’s Daubert motion (Dkt. #333). LEGAL STANDARD The Court may grant leave to disclose a supplemental expert report after the deadline in the scheduling order has expired for good cause. Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990). To determine whether good cause exists, the Court considers (1) the explanation for the failure to [submit a complete report on time]; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice. Russell v. Wal-Mart Stores, No: 1:06-CV-408, 2007 WL 9725186, at *2 (E.D. Tex. Jun. 7, 2007) (citing Geiserman, 893 F.2d at 791). ANALYSIS Armadillo asks this Court to strike Imburgia’s declaration as an improper and untimely supplementat that provides new opinions. Gibson responds that Imburgia’s declaration is not a supplement because Imburgia has not changed his opinion. 1 Although Armadillo represents Imburgia’s declaration as unsworn, upon review it appears to be sworn (See Dkt. #221, Exhibit 1 at p. 12). 2 This dispute is now moot. Gibson offered Imburgia’s declaration only in opposition of Armadillo’s Daubert motion (Dkt. #320 at p. 6 (Arguing that Imburgia’s “declaration is permissible to counter Defendant’s argument in the Daubert Motion”)). There is no indication that Gibson intends to rely on Imburgia’s declaration at trial (See Dkt. #320, #327). On March 18, 2021, the Court separately denied Armadillo’s Daubert motion (Dkt. #333). The Court did not cite or otherwise rely on the disputed declaration (See Dkt. #333). As such, the Court no longer needs to determine whether Imburgia’s declaration was a proper exhibit to Gibson’s response. CONCLUSION It is therefore ORDERED that Armadillo Distribution Enterprises, Inc.’s Motion to Strike the Unsworn Declaration of Basil Imburgia (Dkt. #315) is hereby DENIED as moot. SIGNED this 20th day of April, 2021. ___________________________________ AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE 3
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