King, Malcolm v. Link Wild Safaris, LLC
3:19-cv-00705
W.D. Wis.Jan 25, 2021Background
- King (U.K. citizen) contracted with Link Wild Safaris, LLC (LWS) for a hunt specifically for the North Baja Desert Bighorn Sheep (Ovis canadensis cremnobates) on the Baja Peninsula; the contract described the hunt area as a ~4-hour drive north of the Loreto airport.
- King paid for the hunt (contract price $51,000) and incurred total hunt/travel/gratuity expenses of $65,772.59.
- On April 22, 2018, after being transported only ~35–40 minutes south of Loreto by LWS’s guide, King shot a ram later identified as the South Baja Desert Bighorn Sheep (weemsi).
- Expert zoologist Raymond Lee opined that cremnobates do not inhabit the area described in the contract and that permits to hunt cremnobates have not been issued for decades.
- LWS attempted to submit late declarations (Demaske and Black) and a declaration by Jay Link asserting contrary factual claims; the court struck Demaske/Black as untimely under Rule 26 and struck paragraph 2 of Link’s declaration as inadmissible hearsay.
- The court granted King’s motion for partial summary judgment on breach of contract (for failing to take him to the area where cremnobates could be hunted) and on his claim under Wisconsin’s Deceptive Trade Practices Act (Wis. Stat. § 100.18), awarding $65,772.59 and attorney’s fees/costs (amount to be determined). Remaining claims (misrepresentation, breach of good faith, unjust enrichment, and additional damages) proceed to trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Demaske and Black declarations | LWS's late witness statements are untimely and prejudicial; should be struck | LWS says the witnesses were identified via the 30(b)(6) deposition and no supplementation was required | Court struck both declarations under Rule 37(c)(1) as untimely and not harmless |
| Admissibility of Link ¶2 (personal knowledge) | Paragraph 2 improperly asserts Link’s personal knowledge of other hunters’ kills | LWS contends Link has personal knowledge from his experience | Court struck ¶2 as based on inadmissible hearsay (Link learned facts from others) |
| Breach of contract — whether LWS breached by failing to provide opportunity to hunt cremnobates | King: contract promised hunt in specific area where cremnobates would be available; LWS took him to area where species cannot be found, so breach and damages follow | LWS: contract did not guarantee a successful kill; King knew location and hunted there, so any right was waived | Court: no reasonable jury could dispute that LWS failed to take King to the contract-specified area where he could hunt cremnobates; summary judgment for King on this ground |
| Wisconsin DTPA (Wis. Stat. §100.18) — whether representation was false and caused pecuniary loss | King: LWS represented he could hunt cremnobates in the four-hour-north area; that representation was false and caused $65,772.59 in loss | LWS: disputes falsity (offered late declarations and Link statement) | Court: with late evidence excluded and Lee’s uncontroverted opinion, the representation was false and caused pecuniary loss; summary judgment for King on §100.18 |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (genuine-dispute standard for summary judgment)
- Hammel v. Eau Galle Cheese Factory, 407 F.3d 852 (7th Cir. 2005) (Rule 37(c)(1) exclusionary sanction is mandatory unless justified or harmless)
- Bunn v. Khoury Enterprises, Inc., 753 F.3d 676 (7th Cir. 2014) (definition of material fact for summary judgment)
- Novell v. Migliaccio, 309 Wis.2d 132 (2008) (elements of a claim under Wis. Stat. § 100.18)
- Sonday v. Dave Kohel Agency, Inc., 293 Wis.2d 458 (2006) (contract interpretation—give reasonable meaning to each provision)