Rubicon Global Ventures, Inc. v. Chongqing Zongshen Group Import/Export Corp.Rubicon Global Ventures, Inc. v. Chongqing Zongshen Group Import/Export Corp.
OPINION AND ORDER
This matter comes before the Court on remand from the Ninth Circuit to make a factual determination of Plaintiffs’ damages in Docket Nos. 3:05-cv-01809 (“Rubicon I”), 3:09-cv-00818 (“Rubicon II"), and 3:09-cv-01397 (“Rubicon III”). Also before the Court is Defendants’ Motion to Preclude Entry of Default Judgment on Plaintiffs’ Claims [303], After considering the information and evidence presented at the hearing, I find Plaintiffs’ sufficiently proved damages in the amount of $916,650. For the reasons stated below, however, I GRANT Defendants’ Motion and preclude the entry of default judgment in this consolidated action. Plaintiffs are, therefore, awarded no damages.
BACKGROUND
The history of this consolidated action is long and tortuous. In 2004, Defendants allegedly approached Plaintiffs about establishing a joint venture in which Plaintiffs would market and sell Defendants’ motorbikes in the United States. Plaintiffs eventually incorporated and ordered three containers of the motorbikes from Defendants. Plaintiffs received the first two containers, but the third was seized by United States Customs and Border Protection because the motorbikes failed to meet relevant emission standards. Plaintiffs claim that Defendants falsified the emissions testing records and misrepresented that the motorbikes were legal to sell in the United States. Additionally, Plaintiffs claim the motorbikes they did receive had numerous mechanical issues. Plaintiffs stored the motorbikes and eventually sold them to a wholesaler for a discounted price.
Based on these factual allegations, Plaintiffs eventually filed five civil actions, of which only three remain {Rubicon I, Rubicon II, and Rubicon III). This Court originally entered default judgments in all three cases but then vacated those judgments based on improper service and issues with personal jurisdiction. Plaintiffs appealed the orders vacating the default judgments, and the Ninth Circuit held
DISCUSSION
I. Defendants’ Participation in the Hearing
Prior to the evidentiary hearing on October 18, I had to decide whether Defendants should be allowed to participate in the hearing at all. Even though there is disagreement regarding a defaulting party’s right to notice of a damages hearing, courts generally agree that a defaulting party has “the right to participate in such a hearing.” B. Finberg, Annotation, Defaulting Defendant’s Right to Notice and Hearing as to Determination of Amount of Damages,
Plaintiffs argued that Defendants should not participate in the hearing because allowing them to do so would encourage parties “to sit on their hands, knowing that far down the road they can appear and be afforded full participation.” Additionally, Plaintiffs claimed that Henry was distinguishable because there, the court entered default as a discovery sanction, whereas here, Defendants’ default was due to their complete lack of response..
These arguments are unconvincing. First, Defendants were not awarded “full participation” as Plaintiffs suggested. Rather, in accordance with the rule above, Defendants were limited to cross-examining Plaintiffs’ witnesses and presenting their own evidence on the issue of damages only. They were not allowed to present evidence on the issue of liability because all factual allegations from the Complaints were established as true upon entry of default. See Geddes v. United Fin. Grp.,
In any event, I am confident I would have reached the same conclusion on damages even without Defendants’ participation in the hearing. At the hearing and in their Daubert Motion, Defendants’ questioned the experts’ qualifications to testify as to Plaintiffs’ economic damages and the overall reliability of the experts’ opinions. These issues were not novel; they were precisely the questions I would have raised at the hearing even if Defendants were not present. Thus, in the end, my decision to allow Defendants to participate did not impact my damages calculation.
II. Plaintiffs’ Damages
After default is entered against an unresponsive party, the court may enter a default judgment and award damages in favor of the plaintiff. Fed. R. Civ. P. 65(b) (West 2016). The judgment may not be entered without a hearing, however, “unless the amount claimed is a liquidated sum or capable of mathematical calculation.” Davis v. Fendler,
In this case, Plaintiffs seek compensatory damages for lost profits ($45,-485,576) and lost investment (approximately $505,550) and argue those damages should be trebled under federal and state RICO statutes. Plaintiffs also seek an award of punitive damages. I will address each type of damages in turn.
A. Future Lost Profits
i. The Governing Standard
In order to recover damages for future lost profits, a party must establish
Even though the reasonable certainty standard for proving lost profits is well-established under Oregon law, applying it in this ease raises additional issues. First, the standard uses admittedly ambiguous phrasing that leaves open what is actually required. A party must prove lost profits with certainty but only to a degree that is reasonable; in other words, proof that is to some degree uncertain. Oregon courts have explained that the word “certainty” is a misnomer and actually means something closer to probability. See, e.g., Cont’l Plants Corp. v. Measured Mktg. Serv., Inc.,
More importantly, there is a question as to whether the standard for demonstrating lost profits differs in situations of default. Although neither Oregon courts nor the Ninth Circuit applying Oregon law has directly addressed this issue, other federal appellate courts sitting in diversity have noted that in situations of default, a party must still prove its actual damages to a reasonable degree of certainty. See, e.g., Everyday Learning Corp. v. Larson,
There are also no principled reasons to deviate from the general standard of proving lost profits simply because a party has defaulted. Due process concerns weigh against finding a more lenient standard and the difficulty of proving damages weighs against one that is overly stringent. To be sure, courts have applied a number of “modifying principles” to avoid the “overly rigid application of the ‘reasonable certainty’ requirement.” Mid-Am. Tablewares, Inc. v. Mogi Trading Co.,
ii. Plaintiffs’ Failure to Prove Lost Profits
In this case, Plaintiffs have failed to prove their future lost profits with reasonable certainty. Plaintiffs rely principally on numbers and projections from their 2004 business plan (the “Plan”). There are two problems with this evidence: the first concerns assumptions the Plan did take into account and the second concerns risk factors the Plan did not take into account.
The Plan makes several aggressive assumptions in regard to Plaintiffs’ projected business growth that appear lofty at best, and impossible at worst. Specifically, over a five-year period, the Plan projects an increase in the markets served from 2 to 140, an increase in dealership agreements from 2 to 280, and an increase in units sold from 236 to 73,600. On the basis of these assumptions, the company stood to grow from an initial investment of $1.5 million to an overall value of approximately $600 million. To prove the validity of the Plan’s assumptions, Plaintiffs offered expert testimony from William Rucker. Mr. Rucker is the manager and founder of Texas Environment Technology (“TET”), a full-service emissions testing laboratory. He was also CEO and president of American Iro-nhorse, a niche, high-end motorcycle manufacturing company that experienced growth of $200 million in just over eight years.
Mr. Rucker opined that the Plan’s assumptions were reasonable, and even conservative. His conclusions, however, are problematic. First, even though he might have been qualified to comment on the validity of the Plan’s assumptions,
Moreover, Defendant’s expert, Sharif Farhat, testified that the Plan’s assumptions were highly unreasonable. Mr. Farhat is the Vice President of Expert Analytical Services at Urban Science Applications, a consulting and software development company. He has performed hundreds of analyses on the financial performance of different motor vehicle dealer networks and has served as an expert on dealer networks in numerous state and federal cases. Mr. Farhat testified that the Plan’s predictions were highly speculative and that he was unaware of any company in the relevant industry achieving similar results in the last 20 to 30 years. He also challenged Mr. Rucker’s statements regarding the ease of signing up dealers, underlining several challenges that new companies face in establishing a robust dealer network. These competing statements reinforced the problems with Mr. Rucker’s opinions and prevented Plaintiffs from adequately proving that the Plan’s assumptions were reasonable.
Even if Mr. Rucker’s testimony was sufficient to prove the assumptions were rear sonable, it does not follow that Plaintiffs would have proved their lost profits with reasonable certainty. In fact, determining whether the Plan’s assumptions for gross profitability were reasonable is several steps removed from proving Plaintiffs’ future lost profits. Mr. Rucker did not provide any analysis on the price of each individual unit, Plaintiffs’ expenses, or other risk factors that would have affected Plaintiffs’ expected profits. In fact, Mr. Rucker admitted that he was in no position to provide opinion on Plaintiffs’ economic damages at all.
Furthermore, the Plan and Mr. Rucker’s assessment also fail to account for several important risk factors that are essential to consider when determining a party’s likely future profits. These risk factors include inexperienced management teams, the lack of proven market acceptance for a particular product, and a general high rate of failure for new businesses. Mr. Farhat testified, for example, that Plaintiffs’ proposed leadership team did not have the necessary expertise in the powersports industry to establish a dealer network the size of that projected in the Plan. Additionally, Defendants’ other expert, Jay Sickler, referenced a 75 percent failure rate for new businesses and testified that the rate is higher for venture capital startup companies than those that are closely held.
Essentially, the Plan predicted a cold-fusion-type scenario in which Plaintiffs’ would be able to sell high-quality goods at low cost while achieving a high profit margin. Plaintiffs presented insufficient evidence, however, that the assumptions upon which the scenario depended were reasonable independent of the Plan. Furthermore, the Plan failed to account for several factors that would potentially—and even probably—reduce the amount of profits that Plaintiffs stood to make. In short, the Plan’s predicted scenario was highly speculative. As such, Plaintiffs have failed to meet their burden of proving future lost profits with reasonable certainty.
B. Lost Investment
Plaintiffs were also required to prove damages for their lost investment with reasonable certainty. Parker v. Harris Pine Mills,
Plaintiffs’ damages claim for lost investment is relatively straightforward: investors provided capital for the joint venture, Plaintiffs expended that capital in furtherance of the venture, and as a result of Defendants’ conduct, Plaintiffs were unable to recover such capital. The amount invested in the company, and the amount being claimed as damages, is $505,550. As proof of this amount, Plaintiffs provided charts and account information listing each individual investor and the amount that he or she invested in the company. Plaintiffs’ witness Todd Silberman verified this investment amount and testified that the money was spent entirely on Plaintiffs’ operating costs. Importantly, because liability was established upon entry of default, Plaintiffs did not need to prove Defendants’ conduct was the cause of their inability to recover the expended capital.
Defendants’ presented no contrary evidence that the initial investment amount was less than what Plaintiffs claimed. They merely argued that because Plaintiffs had not provided “detailed support” of the amounts expended, Plaintiffs had not met their burden of establishing damages of lost capital. I disagree. Although Plaintiffs did not provide documentary evidence of their exact expenditures, Mr. Silberman’s uncontroverted live testimony was sufficient to show that the entire amount of initial investment had been lost. Absent any evidence to the contrary, this testimony, along with the documentary evidence described above, was sufficient to prove Plaintiffs’ damages for lost capital to a reasonable degree of certainty.
C. Treble Damages Under RICO
Under RICO, the measure of civil damages is “the harm caused by the predicate acts constituting an illegal pattern.” Ticor Title Ins. Co. v. Florida,
For the same reasons discussed above, Plaintiffs have failed to establish by “competent proof’ that they are entitled to damages for future lost profits. Plaintiffs are entitled, however, to damages for their lost investment in the amount of $305,550. Because liability has been established by virtue of default, these damages are deemed to be “caused by the predicate acts constituting an illegal pattern” and should be trebled. As such, Plaintiffs would be entitled to a damages award of $916,650, absent the insufficiency issues discussed more fully below.
D. Punitive Damages
Plaintiffs also seek punitive damages in connection with their fraud and ORICO claims. In Oregon, a party may recover punitive damages in a civil action if it proves by clear and convincing evidence that “the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others.” Or. Rev. Stat. Ann. § 31.730(1) (West 2016). “[M]alice has been held to mean the intentional doing of [an] injurious act without justification or excuse. Johannesen v. Salem Hosp.,
Plaintiffs argue that Defendants’ malice has been established by virtue of the default. In situations of default only factual allegations relating to liability are binding upon the defaulting party. Alan Neuman Prods., Inc. v. Albright,
Although Plaintiffs provide some evidence to, support a finding of malice, it is not enough to satisfy the clear and convincing standard. Plaintiffs provided evidence that Michael Johnson, an independent contractor for Texas Environmental Technology (“TET”), pled guilty to submitting false applications for motorcycle certifications to the Environmental Protection Agency (“EPA”). Mr. Rucker also testified that even' though Mr. Johnson claimed to have certified Defendants’ products, TET had no record of this testing, meaning the reports Defendants submitted to the EPA were false. Admittedly, this evidence is consistent with a scenario in which Defendants deliberately defrauded the government by obtaining false EPA certifications. On its own, however, it is insufficient to make such scenario “highly probable.”
The evidence submitted proved that Mr. Johnson—not defendants—engaged in fraudulent activity against the government. Indeed, it is only by inference that one arrives at the conclusion that Defendants intentionally sought to defraud the government or Plaintiffs. To be clear, the fact that the fake certificates were submitted to the government would not prevent Plaintiffs from establishing a claim for punitive damages based on a fraudulent representation that the motorbikes were EPA-compliant. Plaintiffs must still provide sufficient evidence, however, to show that Defendants’ intentional participation in the “injurious act” was highly probable and not merely possible or plausible. Plaintiffs fell short of this relatively high standard and thus their claim for punitive damages fails.
Even if malice was established by virtue of the default, it is not clear that Plaintiffs would have been entitled to an award of punitive damages. Plaintiffs did not allege an amount in connection with their punitive damages claim, instead directing the court to award an amount that was “significant.” Even though there is no fixed standard for determining the amount of punitive damages, the factors the court must consider seem to assume the existence of at least a claimed number. See Or. Uniform Civil Jury Instructions No. 75.02 (2015) (“The amount of punitive damages you award may not exceed $_[prayer], [which is the amount requested by the plaintiff].” (emphasis added)). Furthermore, as discussed more below, there are significant sufficiency problems with Plaintiffs underlying claims that ultimately preclude an award of punitive damages.
III. Defendants’ Motion to Preclude Entry of Default Judgment
Even though Plaintiffs have adequately proven damages in the amount of $916,650, the question of whether they are entitled
A. Procedural Arguments
i. Challenging the Sufficient of Pleadings After an Entry of Default Generally
In general, facts that are not supported by the pleadings cannot properly form the basis of a default judgment. Alan Neuman Prods., Inc. v. Albright,
Relying on these arguments, Defendants challenge the legal sufficiency of Plaintiffs’ claims, despite the Court’s previous entry of default. Plaintiffs respond, in part, by arguing that a defendant can only chahenge the sufficiency of pleadings after default on appeal. Nothing in the above opinions, however, explicitly limits their application to cases on appeal. Furthermore, if insufficient claims cannot form the basis of a default judgment, a party should be able to challenge such claims regardless of whether the case is on appeal or remand. Thus, Defendants are not categorically precluded from making their sufficiency arguments at this stage of the litigation.
ii. Rule of Mandate and Law of the Case Doctrines
Even though a party may generally raise sufficiency arguments following an entry of default, its ability to do so might be limited by the rule of mandate or law of the case doctrines. In other words, a party can only make insufficiency arguments on remand if the appellate court’s mandate or law of the case does not otherwise preclude it from doing so.
In this case, Plaintiffs argue that both doctrines preclude Defendants from making their sufficiency arguments at this stage of the litigation. Specifically, Plaintiffs point to the Ninth Circuit’s Mandate from the second appeal (the “Mandate”) and a 2013 Order from Judge Haggerty (the “2013 Order”) as establishing the sufficiency of Plaintiffs’ claims and precluding consideration of Defendants’ Motion. I will address each of Plaintiffs’ arguments in turn.
a) Rule of Mandate
When a case is on remand, an inferior court is bound by the appellate court’s mandate and “must carry it into execution.” Vizcaino v. U.S. Dist. Court for W. Dist. of Wash.,
In Hash v. United States, for example, the district court construed the circuit court’s mandate as requiring a determination of “just compensation” but precluding additional consideration of the defendant’s liability. No. CV-99-324-S-MHW,
In its Mandate and accompanying Memorandum, the Ninth Circuit does not explicitly discuss whether this Court may consider Defendants’ sufficiency argument on remand. Instead, the Ninth Circuit simply directs this Court to vacate the default judgment and factually determine Plaintiffs’ damages. Moreover, unlike in Hash, there is nothing to suggest that the sufficiency of Plaintiffs’ claims was impliedly disposed of on appeal or that considering such argument on remand would contravene the spirit of the Mandate.
b) Law of the Case
As already noted, “a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.” Thomas,
Even if an issue has been decided, a court can deviate from the law of the case under certain circumstances. First, if the previous decision or judgment has been vacated on appeal, it can no longer be part of the law of the case. See Johnson v. Bd. of Educ. of Chicago,
Here, Plaintiffs argue that the 2013 Order is the law of the case and precludes Defendants from making their insufficiency argument at this stage of the litigation. In its 2013 Order, this Court did not explicitly address the sufficiency of Plaintiffs’ claims. There is a plausible argument, however, that the Court ruled on the sufficiency of Plaintiffs’ claims “by necessary implication.” As already discussed, insufficient claims cannot serve as the basis for a valid default judgment. Therefore, in reinstating the default judgment, this Court impliedly decided that Plaintiffs’ claims were sufficient.
Even assuming arguendo that the 2013 Order established Plaintiffs’ claims as sufficiently pled, the decision is not necessarily the law of the case. In its Mandate, the Ninth Circuit directed, in part, that the default judgments resulting from the 2013 Order be vacated because of this Court’s failure to hold a hearing on damages. As such, this Court’s decision to reinstate the default judgments—and by implication this Court’s decision on the sufficiency of Plaintiffs’ claims—can no longer be a part of the law of the case. Thus, even if this Court impliedly decided that Plaintiffs’ claims were sufficient in its 2013 Order, the decision is not the law of the case because the judgments from which the decision derived were vacated by the Ninth Circuit.
In summary, the law of the case does not constrain me from considering Defendants’ Motion. By necessary implication of its 2013 Order, this Court previously decided Plaintiffs’ claims were sufficient, but the Court’s decision was subsequently vacated by the Ninth Circuit and is no longer the law of the case. Thus, with the exception of Plaintiffs’ ORICO claims which were dismissed by the 2010 Order, I am free to rule on the sufficiency of Plaintiffs’ claims at this stage in the litigation.
B. Substantive Arguments
Since I cannot enter a default judgment on the basis of insufficient claims, I must decide whether Plaintiffs’ claims satisfy the relevant pleading requirements. As previously noted, the current action contains four claims: RICO, ORICO, fraud, and contract. I will discuss the sufficiency of each type of claim in turn.
i. Federal RICO Claim
The parties focused most of their attention on the sufficiency of Plaintiffs’ RICO claim. Although the relevant complaints fail to cite specific provisions of the statute, Plaintiffs appear to allege violations to §§ 1962(c) and 1962(d) of RICO. Under § 1962(c), it is unlawful for a person associated with any enterprise engaged in interstate commerce to conduct the enterprise’s affairs “through a pattern of racketeering.” 18 U.S.C.A. § 1962(c) (West 2016). To state a claim under this section, “a plaintiff must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sanford v. MemberWorks, Inc.,
a) Enterprise
Under RICO, “enterprise” includes “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals asso-
Defendants argue that Plaintiffs’ Complaints, fail to satisfy the distinctiveness requirement and each element of an associated-in-fact enterprise. Defendants’ argument regarding distinctiveness is incorrect. Even though an enterprise involving a corporation and its subsidiaries does not satisfy distinctiveness, a corporate officer/employee conducting the affairs of the corporation through illegal activity does. See Cedric Kushner Promotions, Ltd. v. King,
Even though the Complaints sufficiently allege distinctiveness, they fail to adequately allege the elements of an associated-in-fact enterprise. Plaintiffs allege that Defendants had the common purpose of making money off the sale of illegal motorbikes in the United States. They fail to specify, however, the ways in which individual defendants furthered that purpose. See Odom,
Plaintiffs also fail to allege a “vehicle for the commission of two or more predicate crimes,” as is required to show an ongoing organization. Odom,
Finally, Plaintiffs’ Complaints fail to sufficiently allege that Defendants’ activities were continuous. The continuity requirement “focuses on whether the associates’ behavior was ongoing rather than isolated activity.” Id. at 552-53. Although Plaintiffs allude to activity that occurred in 2004 and into 2005, they do not allege specific facts to show Defendants’ alleged conduct was sufficiently continuous. These vague allegations, although indications of continuity, are insufficient to satisfy the heightened pleading standard under Rule 9(b). Due to these deficiencies, Plaintiffs have failed to adequately allege an enterprise as part of their RICO claim.
b) Racketeering Activity
Section 1961 of RICO provides an extensive list of conduct that is considered racketeering activity. 18 U.S.C.A.
c) Pattern
Finally, to properly state a federal RICO claim under § 1962(c), a plaintiff must allege that the racketeering activity discussed above amounted to a pattern. Odom,
Plaintiffs correctly assert that continuity is a “fluid” concept. Thus, it is difficult to say exactly how long the activity must occur in order to constitute a substantial period of time. Although the time frame and specific interactions are vague, Plaintiffs suggest that their relationship with Defendants began in the spring of 2004 and lasted until sometime in 2005. Giving Plaintiffs the benefit of the doubt, this means that the allegedly fraudulent activity lasted at least eight to nine months. Even though acts “extending over a few weeks or months” do not generally satisfy the requirement, H.J. Inc.,
Of particular interest is the case of Medallion Television Enters., Inc. v. SelecTV of Cal., Inc.,
On a more practical note, Congress’s principal concern in enacting RICO was to get at “long-term criminal conduct.” H.J. Inc.,
ii.Oregon RICO Claim
As already discussed above, this Court’s 2010 Order dismissing Plaintiffs’ ORICO claim remains in effect. In any event, Plaintiffs’ ORICO claim suffers in large part from the same deficiencies as their RICO claim and is therefore insufficiently pled. See Pincetich v. Jeanfreau,
iii.Common Law Fraud Claims
Plaintiffs’ fraud claim also fails under Rule 9(b) because they fail to provide the who, what and when of the alleged misconduct. See Vess v. Ciba-Geigy Corp. USA,
First, Plaintiffs fail to identify the particular acts of fraud that each defendant committed. See Zing Toys, Inc. v. Zuru, LLC, No. 3:10-cv-863-MO,
The Complaints also fail to sufficiently allege the “when” of the alleged fraud. In their Complaints, Plaintiffs allege “April” or “spring” of 2004 as the time when Defendants’ agents approached and encouraged Plaintiffs to invest in the motorbikes. Regardless of whether “April” or “spring” are sufficiently definite for purposes of Rule 9(b), the timing seemingly only refers to the initial interactions between the parties. All other interactions, including those that were allegedly fraudulent, occurred sometime in 2004 or 2005. The vagueness of Plaintiffs’ complaints regarding these dates and when the fraud actually occurred prevents them from satisfying the heightened pleading requirement of Rule 9(b).
iv. Common Law Contract Claims
Finally, like their other claims, Plaintiffs’ contract claims also fail to satisfy the relevant pleading standard, this time Rule 8(a). In their Rubicon I Complaint, Plaintiffs assert three contract-based claims: breach of contract, breach of the covenant of good faith and fair dealing, and breach of the warranty of merchantability. Defendants argue these claims are insufficient because the pleadings fail to identify a specific contract, let alone the terms or conditions of any agreement. I agree with Defendants and conclude Plaintiffs have failed to properly plead their contract claims.,
Even if Plaintiffs adequately allege a contract, however, they fail to identify the terms of the agreement or the obligations Defendants failed to fulfill. Under their claim for breach of contract, for example, Plaintiffs merely assert that they “have performed all conditions precedent” without saying what those conditions actually were. The claims for breach of the implied warranty of merchantability and the breach of the covenant of good faith and fair dealing rely on similarly insufficient legal conclusions. Because the Rubicon I Complaint offers only “labels and conclusions” or “‘naked assertion[s]’ devoid of ‘further factual enhancement,’” Plaintiffs’ contract claims do not meet the pleading standard under Rule 8(a). Ashcroft v. Iqbal,
CONCLUSION
Plaintiffs sufficiently proved damages in the amount of $305,550, which, when trebled, would result in a damages award of $916,650. The claims asserted in its three operative Complaints, however, are insufficiently pled under the relevant pleading standards. As such, I GRANT Defendants’ Motion (303) and preclude the entry of default judgment in this consolidated action. Plaintiffs are awarded no damages but are given leave to amend their Complaints.
IT IS SO ORDERED.
Notes
. The parties looked to Oregon law for what needs to be shown to prove damages for lost profits and lost investment. Oregon law obviously supplies the standard for the state law claims, but for the RICO claim, federal law governs. Accordingly, damages under RICO, which can include lost profits, "must be established by competent proof, not based upon mere speculation or surmise.” Ticor Title Ins. Co. v. Florida,
.Plaintiffs rely principally on Domanus to argue that the standard for proving lost profit damages is "relaxed” in a default setting. This reliance, however, is misplaced. In Domanus, the Seventh Circuit noted that courts have “broad latitude in quantifying damages."
. Defendants submitted a Daubert Motion, in which they argued, in part, that Mr. Rucker was not qualified to provide expert opinion on Plaintiffs economic damages. Even if he was not qualified to opine as to Plaintiffs’ economic damages, he might have been qualified to comment on the reasonableness of the assumptions in the Plan. Because his opinions on the assumptions were otherwise unreliable, however, I need not decide the issue of whether he was qualified.
. See Magnetar Techs. Corp. v. Intamin, Ltd.,
. Even though Defendants' experts testified extensively as to these risk factors, several of them—e.g., the general failure rate of start-ups—are obvious, and the Court would have recognized the Plan’s failure to address them even without Defendants’ participation in the hearing.
. There is at least one Oregon case that suggests the correct standard for determining lost investment damages is a preponderance of the evidence. See SnB, Incorporation v. Ehlers,
. RICO and ORICO are "almost identical” and the state statute is interpreted consistently with the federal statute. Pincetich v. Jeanfreau,
. I use "malice” as shorthand for "malice or ... a recldess and outrageous indifference to a highly unreasonable risk of harm” as required by the Oregon statute on punitive damages.
. In Riley Hill, the Oregon Supreme Court held stated "when considering the issue of damages, be they general or punitive, the judge should instruct the jury that the proponent need only prove those damages by a preponderance.”
. This position is not inconsistent with Alan Neuman Prods.,
. Even though Hash is not controlling case-law, it is instructive. The defendant's procedural move there is similar to the one made by Defendants here. In Hash, the defendant moved for the district court to consider the defendant’s liability despite a mandate that instructed the court to simply determine just compensation. Hash,
. In Hash, the mandate said that the "owners' property interests were taken for public use, in accordance with the principles set for in the Presault cases.”
. In Lee v. E.I. Du Pont de Nemours and Company, the Fifth Circuit found "where further proceedings in the district court are specified in the mandate ... the district court is limited to holding such as are directed.”
. In this same order, .the Court also dismissed Plaintiffs' Federal RICO claims but only because the claims were barred by the statute of limitations. The Court explicitly declined to address the sufficiency of Plaintiffs' Federal RICO claims at that time.
. I recognize a potential issue dealing with proximate cause but fail to address the issue because the ORICO claim remains dismissed.