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HOMES LAND AFFILIATES, LLC, Plaintiff, v. HOMES LOANS MAGAZINE, LLC, ROBERT KLEZMER, MARYANNE KLEZMER, WILLIAM KEELER, BONNIE KEELER, Defendants.

ORDER

DAVID BAKER, Magistrate Judge

This cause came on for consideration without oral argument on the following motion filed herein: MOTION: DEFENDANTS' MOTION TO STRIKE NESMITH REPORT (Doc. No. 37) FILED: September 2, 2008 -------------------------------------------------------- THEREON it is ORDERED that the motion is DENIED. Plaintiff's expert, Ted NeSmith prepared a Report (Doc. No. 29) opining as to the amount of Defendants' sales, as required in 15 U.S.C. § 1117 ("plaintiff shall be required to prove defendant's sales only") in support of Plaintiff's damages claim under the Lanham Act. Defendants move to strike the report because it "does nothing more than state a legal conclusion and does not assist the trier of fact." Doc. No. 37. Defendants have failed to attach Mr. NeSmith's Report. Their citation to Doc. No. 29 is merely to Plaintiff's "Notice" that the Report had been served, and does not contain a copy of the Report. Doc. No. 37 at 2.

Defendants have not challenged Mr. NeSmith's qualifications to serve as an expert.

Moreover, a financial or accounting expert's report calculating and opining about the extent of a plaintiff's damages, which in this case is measured by Defendants' sales, is generally accepted in support of a plaintiff's damages calculation; the expert's opinion about the size of the damages calculation does not bear on Plaintiff's burden to prove Defendants' liability for the underlying claim.

Accordingly, Defendants' Motion to Strike NeSmith Report (Doc. No. 37) is DENIED without prejudice to Defendants' ability to cross-examine Mr. NeSmith on the contents of the Report at trial.

DONE and ORDERED in Orlando, Florida.

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HOMES LAND AFFILIATES v. HOMES LOANS MAGAZINE
(Oct 1, 2008)