MALCOLM KING, Plaintiff, v. LINK WILD SAFARIS, LLC, Defendant.
Case: 3:19-cv-00705-slc
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
January 25, 2021
Document #: 34
19-cv-705-slc
This lawsuit arises out of a contract between the parties for the hunting of North Baja Desert Bighorn Sheep. Plaintiff Malcolm King has sued defendant Link Wild Safaris, LLC (LWS) for misrepresentation (intentional, negligent and strict liability), breach of contract, breach of the duty of good faith and fair dealing, and unjust enrichment under Wisconsin law and violations of the Wisconsin Deceptive Trade Practices Act (DTPA),
For the reasons below, I am granting both of King‘s motions to strike and I am granting his motion for summary judgment as to one of his breach of contract claims and his
MOTIONS TO STRIKE
I. Demaske and Black Declarations
In support of its response to King‘s motion for partial summary judgment, LWS filed declarations from Jeff Demaske and Bradford T. Black. Dkts. 23-24. Both witnesses aver that they obtained a permit in 2019 for hunting North Baja Desert Bighorn Sheep in an area located roughly four hours north of the airport in Lareto, Baja California Sur state, Mexico. LWS presented this evidence to contradict the opinion of King‘s expert witness, Raymond Lee, that no such sheep are located in that area and that no permit has been issued for the hunting of one since 1990. See dkt. 19.
Prior to filing Demaske‘s and Black‘s declarations on December 11, 2020, LWS had not disclosed either individual as a fact or expert witness. The parties’ initial disclosures under
LWS contends that it was not required to supplement its
LWS faults King for not following up on the information or deposing the witnesses. King is not to blame here. LWS does not explain why it waited so long to disclose the two facts witnesses whom it is relying on to contradict Lee‘s unequivocal expert opinion, which had been filed more than seven months previously, in May 2020. Discovery closed in this case on October 2, 2020, and dispositive motions were due November 20, 2020. Contrary to LWS‘s assertion, King did not have weeks to follow up on the new information because the
II. Link Declaration
LWS argues that Link testified both as a representative of LWS and individually that he is personally aware of multiple successful hunts for the North Baja Desert Bighorn Sheep in the area around Loreto. In his declaration, Link avers that he is an experienced big game hunter and has “personal knowledge” of multiple hunters, including Black and Demaske, who successfully hunted North Baja Desert Bighorn Sheep in the area located roughly four hours north of the airport in Lareto, Baja California Sur, Mexico. Dkt. 22. However, in the
MOTION FOR PARTIAL SUMMARY JUDGMENT
From the parties proposed findings of fact, I find the following facts to be material and undisputed.
Undisputed Facts
Plaintiff Malcolm King is a citizen of the United Kingdom. Defendant Link Wild Safaris, LLC (LWS) is a Wisconsin limited liability company with its principal place of business in Minong, Wisconsin. All of LWS‘s members are Wisconsin citizens, making LWS a citizen of Wisconsin.
In 2018, King was interested in hunting a North Baja Desert Bighorn Sheep, which is also known as Ovis canadensis cremnobates. King was put into contact with LWS and its owner, Jay Link, through Anton Tonchev and Hunt Europe, a company owned by Tonchev and LWS. LWS is a well-known, profitable, and prestigious professional hunting outfitter that is staffed and owned by hunters who appreciate the distinction between specific subspecies of animals and their value to hunters.
In an April 12, 2018 email to Tonchev, Link set out the details of the hunt that LWS was offering to sell King: “We have the hunt all sorted out for Malcom [sic] King to Hunt the ‘Cermnosates’ [sic] North Baja Desert Sheep Sub-Species.” Tonchev forwarded this email to
King and LWS entered into a written contract prepared by LWS.3 LWS agreed to provide King a hunt for the North Baja Desert Bighorn Sheep on the Baja Peninsula in Mexico, starting on April 20, 2018. Specifically, the contract states that King would fly to Loreto, Baja California Sur, Mexico, and then be driven north four hours from the airport to the hunt unit. The contract provided that LWS would coordinate all aspects of the hunt, including but not limited to providing professional guide services, transportation, field trophy preparation, and accommodations. King paid LWS $51,000 for the hunt.
Relying on LWS‘s statements and the contract between the parties, King arrived in Loreto on April 19, 2018. He was met at the airport by Rolando Armando Alonzo Puc, the hunting guide selected and contracted by LWS. Puc drove King for approximately 35 to 40 minutes and then told King that they had arrived at the hunting camp. King questioned Puc about whether they were at the correct location, because King understood from the contract that the drive to the hunting area was supposed to be four hours north of the Loreto airport. Puc said that they were at the correct location.
Approximately six weeks after the hunt, King submitted documentation regarding his hunts for consideration for the Weatherby Hunting and Conservation Award, including information about what he believed to be a successful hunt of the North Baja Desert Bighorn Sheep. On June 2, 2018, the Weatherby Foundation‘s Chairman, Rex Baker, responded and stated “Please send the North Baja Desert Sheep permit from April 2018 showing the location of the kill and the Latin name as it has been illegal to hunt this specie[s] for many years.” King provided the GPS coordinates near where he killed the ram. Baker informed King that he could not have killed the North Baja Desert Bighorn Sheep, which has the Latin name Ovis canadensis cremnobates, in that area.
By letter dated June 5, 2018, LWS confirmed that the animal that King killed was a different subspecies of sheep, the South Baja Desert Bighorn Sheep, Ovis canadensis weemsi:
I am writing this letter as confirmation that Link‘s Wild Safaris and Hunt Europe did indeed recently contract a hunt for Mr. Malcolm King for what we believed to be a Northern Baja Desert Sheep (cremnobates). With all good intentions, it is now clear
that there was a miscommunication and misunderstanding with the contracted outfitter and it does appear that Mr. Malcolm [King] unintentionally harvested a Southern Baja Desert Sheep (weemsi). On behalf of Link‘s Wild Safaris and Hunt Europe we apologize for the miscommunication and confusion regarding this hunt. There was no malice or misrepresentation intended and we regret that the incorrect species was harvested.
Raymond Lee, a zoologist and biologist who for nearly four decades has studied the particular sheep species at issue in this litigation, opines that the North Baja Desert Bighorn Sheep cannot be found anywhere near the area where LWS took King or in the area described in the contract (four hours north of Loreto by vehicle). Lee also opines that permits for hunting these sheep have not been issued since 1990. See dkt. 15-2.
The South Baja Desert Bighorn Sheep has no value to King because he had already hunted that subspecies. Link and LWS were aware that King already successfully hunted the South Baja sheep.
King spent a total of $65,772.59 on the hunt, travel costs, and gratuity. According to King, the only suitable replacement for the North Baja Desert Bighorn Sheep, which cannot currently be hunted, is the Severtsov Argali sheep in Uzbekistan, which costs more than $100,000 to hunt.
OPINION
I. Summary Judgment Standard
Summary judgment is appropriate only if the moving party—in this case, King—can demonstrate “that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
II. Breach of Contract Claim
“Under Wisconsin law, a claim for breach of contract has three elements: (1) a contract between the parties that creates obligations flowing from the defendant to the plaintiff; (2) failure of the defendant to do what it undertook to do; and (3) damages.” BMO Harris N.A. v. Rivers Transp., Inc., No. 17-CV-777-JDP, 2018 WL 4953004, *2 (W.D. Wis. Oct. 12, 2018) (citing Brew City Redevelopment Grp., LLC v. The Ferchill Grp., 2006 WI App 39, ¶ 11, 289 Wis. 2d 795, 714 N.W.2d 582). King argues that LWS breached its obligations to provide him with a successful hunt of the North Baja Desert Bighorn Sheep when it transported him to an area
LWS contends that King contracted for one thing: a hunt for the Northern Baja Desert Bighorn Sheep four hours north of the airport in Loreto, Baja California Sur, Mexico. As LWS points out, the contract does not promise King a “successful” hunt or kill, and King has failed to present any evidence from which a reasonable jury would infer that LWS guaranteed a successful hunt. King counters that the contract‘s inclusion of “field trophy preparation” would be superfluous had LWS not intended to guarantee the killing of an animal. See Sonday v. Dave Kohel Agency, Inc., 2006 WI 92, ¶ 21, 293 Wis. 2d 458, 471, 718 N.W.2d 631, 637 (“We interpret a contract to give ‘reasonable meaning to each provision and without rendering any portion superfluous.‘“). King also asserts that if LWS had not intended to guarantee a successful hunt, then it would have explicitly disclaimed such a guarantee. However, King cites no authority for this last proposition.
“Contract language is construed according to its plain or ordinary meaning, consistent with ‘what a reasonable person would understand the words to mean under the circumstances.‘” Ash Park, LLC v. Alexander & Bishop, Ltd., 2015 WI 65, ¶ 37, 363 Wis. 2d 699, 713, 866 N.W.2d 679, 685; see also Tufail v. Midwest Hosp., LLC, 2013 WI 62, ¶ 26, 348 Wis. 2d 631, 642, 833 N.W.2d 586, 592 (“Where the terms of a contract are clear and unambiguous, we construe the contract according to its literal terms.“). Here, a reasonable person would not understand that the parties’ cursory contract guaranteed a kill. It provides for a 10-day hunt in
King fares better with his second argument regarding the location of the sheep. It is undisputed that the guide provided by LWS did not take King to the area identified in the contract. However, as LWS points out, King knew where the hunt was supposed to occur and admits that instead of driving four hours north, the guide took him 35-40 minutes south of the airport. Despite this knowledge, King hunted for several days in the area nearby and south of the airport. LWS contends that King‘s actions waived his contractual right for a hunt four hours north of the airport. Nolop v. Spettel, 267 Wis. 245, 249, 64 N.W.2d 859, 862 (1954) (“‘A waiver is the intentional relinquishment of a known right.‘“) (quoting Swedish American Nat‘l Bank of Minneapolis v. Koebernick, 136 Wis. 473, 479, 117 N.W. 1020, 1023 (1908)); C.G. Schmidt, Inc. v. Tiedke, 181 Wis. 2d 316, 321, 510 N.W.2d 756, 757-58 (Ct. App. 1993) (“[A] party to a contract can waive a condition that is for its benefit.“) (citing Godfrey v. Crawford, 23 Wis. 2d 44, 49, 126 N.W.2d 495, 497 (1964)).5 King does not contest this point in any meaningful way, but he correctly points out that there is no evidence that he voluntarily and intentionally waived his right to hunt a North Baja Desert Bighorn Sheep.
It is undisputed that the guide provided by LWS told King that he was in an area where the North Baja Desert Bighorn Sheep was located. This turned out to be false, as established by Lee‘s uncontroverted expert testimony, but King had no reason to know that the guide was incorrect, especially after questioning him on this very point and being assured that they were in the right spot.6 Therefore, LWS failed to provide King with the opportunity to hunt a North Baja Desert Bighorn Sheep because it took him to an area where the animal could not be found. Because no reasonable jury could find otherwise based on the undisputed facts, King is entitled to summary judgment as to his breach of contract claim on this ground.
To prevail on his claim under the Wisconsin Deceptive Trade Practices Act,
LWS‘s sole argument is that there is a dispute as to whether the representation that King could hunt a North Baja Desert Bighorn Sheep in the area four hours north of the Loreto airport was true, deceptive or misleading. As discussed above, King bases his claim on the expert report of Lee, who avers that it is not possible to hunt a North Baja Desert Bighorn Sheep in that area and that it was not even possible to obtain a permit to hunt this type of sheep at all in April 2018. Although LWS attempts to dispute this with the declarations of Black, Demaske and Link, I have excluded their statements. Because it is undisputed that LWS made a false representation that caused King pecuniary loss, King is entitled to summary judgment on his
Under
With respect to his breach of contract claim, King argues that he is entitled to the monetary damages he incurred as well as damages for the waste of his time, injury to his reputation, and interest. King has not presented evidence in support of his claim for these additional types of damages or itemized his losses in any way, so they must be resolved at trial.
ORDER
IT IS ORDERED that
- Plaintiff Malcolm King‘s motions to strike the declarations of Jeff Demaske and Bradford Black, dkt. 27, and paragraph two of the declaration of Jay Link, dkt. 28, are GRANTED.
- Plaintiff‘s motion for partial summary judgment, dkt. 12, is GRANTED as to his breach of contract and
§ 100.18 claims as provided in this opinion and as to his claim for monetary relief in the amount of $65,772.59 for the cost of the hunt, travel expenses, and gratuity. Plaintiff also is entitled to attorney‘s fees and costs in an amount to be determined.
Entered this 25th day of January, 2021.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge