Impact Marketing International, LLC v. Big O Tires, LLC, 2:10-cv-01809

Impact Marketing International, LLC and Big O Tires, LLC are in a breach of contract dispute over a 2008 contract for selling peeler discount cards in Las Vegas.
An addendum in May 2009 superseded the Contract and included a liquidated damages provision known as the Buyout Schedule.
In November 2009, Sullivan left Big O; Ed Boyd took over Las Vegas stores and Big O cancelled the Addendum shortly thereafter.
Impact filed suit in state court for breach of contract and related claims; Big O removed the case to federal court and counterclaimed for trademark-related claims.
The court previously granted summary judgment on breach of the covenant of good faith and fair dealing; remaining claims included breach of contract and counterclaims.
Defendant moved in limine on four issues; the court granted in part and denied in part.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Rule 36 admissions conclusive?	Impact's admissions show Buyout Schedule secures performance.	Buyout Schedule is a penalty and should be treated as liquidated damages.	Motion denied.
Admissibility of Exhibit A to Hearne Affidavit?	Exhibit A reflects Impact's damages and should be admissible as business records.	Exhibit A is hearsay and not a business record; prepared for litigation.	Exhibit A is inadmissible hearsay; excluded.
Hearne's testimony on damages allowed?	Hearne, as managing member, has knowledge of profits and damages and can testify to them as lay opinion.	Such testimony is speculative and should be excluded as improper lay or expert evidence.	Testimony on damages admitted; denial of preclusion.
Cap on actual damages beyond one year lost profits?	Disclosures and pleadings put Big O on notice of multi-year damages beyond one year.	Damages should be limited to one year per disclosures to avoid prejudice.	Motion denied; plaintiff may seek more than one year.

Mason v. Fakhimi, 865 P.2d 333 (Nev. 1993) (liquidated damages generally valid; penalty only if challenged as such)
Paddack v. Dave Christensen, Inc., 745 F.2d 1254 (9th Cir. 1984) (documents prepared for litigation lack trustworthiness as business records)
Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041 (9th Cir. 1999) (courts wary of self-serving documents offered as business records)
Hawthorne Partners v. AT&T Tech., Inc., 831 F. Supp. 1398 (N.D. Ill. 1993) (discusses limits of in limine and evidentiary rulings during trial)
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993) (lay witnesses may testify on damages based on familiarity with the business)
Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 401 F.3d 901 (8th Cir. 2005) (damages must be proven with reasonable certainty; not exactitude required)
U.S. Salt, Inc. v. Broken Arrow, 563 F.3d 168 (8th Cir. 2009) (discusses evidentiary standards for damages and future losses)