[00:00:00] Speaker 02:
Good morning, Your Honors.

[00:00:02] Speaker 02:
May it please the Court.

[00:00:03] Speaker 02:
I'm Ashley Sands on behalf of plaintiff-appellant Air Doctor LLC, whom I will refer to as Air Doctor today.

[00:00:10] Speaker 02:
Air Doctor submits that the District Court abused its discretion in finding that Air Doctor failed to comply with federal rule of Civil Procedure 54C because Air Doctor did not identify a specific dollar figure for damages in its complaint, and therefore the District Court denied Air Doctor's request for damages in the form of defendant's profits.

[00:00:31] Speaker 02:
Rule 54C provides that a default judgment must not differ in kind from or exceed amount of what is demanded in the pleadings.

[00:00:41] Speaker 02:
In air doctor's complaint, as the Latam Act allows, air doctor requested damages including lost profits, air doctor's actual damages, or defendant's profits resulting from defendant's false advertising in an amount to be proven at trial, and accounting for defendant's profits and enhanced damages, attorney's fees, and costs.

[00:01:04] Speaker 02:
In the DJ motion, Air Doctor requested lost profits in the amount of $2,492,149, which is based on sales reports that it compiled from a third party.

[00:01:17] Speaker 01:
And that motion was served on the defendant?

[00:01:21] Speaker 02:
Yes, it was.

[00:01:23] Speaker 01:
Could the defendant have responded at that point?

[00:01:27] Speaker 02:
Yes, Your Honor.

[00:01:28] Speaker 01:
He could have?

[00:01:29] Speaker 01:
Yes.

[00:01:29] Speaker 01:
Even though she defaulted?

[00:01:30] Speaker 01:
Even though it defaulted?

[00:01:33] Speaker 02:
Obviously, that was the choice of the defendant to default in the case.

[00:01:36] Speaker 02:
The defendant was properly served with the complaint and with the default judgment.

[00:01:41] Speaker 01:
And what I'm asking is, when the defendant was served with the motion to assess damages, could the defendant at that point have responded, even though he had previously defaulted?

[00:01:57] Speaker 02:
Yes.

[00:01:57] Speaker 02:
He or she.

[00:01:59] Speaker 01:
Would anybody have to listen to them?

[00:02:00] Speaker 01:
They could have, but would anybody have to listen to them?

[00:02:03] Speaker 02:
Yes, Your Honor.

[00:02:03] Speaker 02:
Actually, the district court did provide for sufficient time for the defaulting party to appear and try to lift the default.

[00:02:14] Speaker 02:
But still, the defendant did not appear.

[00:02:17] Speaker 03:
I don't understand.

[00:02:18] Speaker 03:
So the district court was clearly concerned about this Rule 54 issue and asked you a bunch of times about it.

[00:02:25] Speaker 03:
And you had the opportunity to just amend the complaint, which you could have done just through e-service.

[00:02:30] Speaker 03:
I mean, you didn't have to go find them

[00:02:32] Speaker 03:
use, service, or process, or anything.

[00:02:34] Speaker 03:
Why didn't you just amend the complaint?

[00:02:36] Speaker 02:
Your Honor, because the precedent of this court, and actually, I mean, anecdotally, I am a IP attorney.

[00:02:46] Speaker 02:
And we file multiple cases, not just in the false advertising under 1125A, but we also file under 1114 trademark infringement cases.

[00:02:56] Speaker 02:
And in those cases, we never are able to ask for a sum certain at any time during the dependency of the action.

[00:03:05] Speaker 02:
Those claims allow for, and I understand, I will get back to why this makes sense here, but those claims allow for statutory damages that can run anywhere from $200 or $2,000 all the way up to $2 million per infringement.

[00:03:19] Speaker 02:
So it honestly defies logic for there to be some cases where there can be any sort of

[00:03:26] Speaker 02:
range of actual damages that are not defined.

[00:03:32] Speaker 03:
But in the default, don't you need to have some proof of those at some point?

[00:03:36] Speaker 03:
I mean, to get the default judgment of damages, at some point, don't you have to offer proof?

[00:03:41] Speaker 02:
Yes, but proof.

[00:03:43] Speaker 02:
So I mean, even in the cases that we've cited to our brief, and I will admit that really there's only one precedential published opinion, but there are multiple

[00:03:56] Speaker 02:
opinions that have relied on that opinion and have discussed this issue, and we have to come, you know, to court with some sort of... Well, I mean, certainly there is nothing in the federal rules that requires you to allege an amount of damages.

[00:04:08] Speaker 01:
No.

[00:04:09] Speaker 01:
Not a specific amount.

[00:04:10] Speaker 01:
Not in Rule 54C or anywhere else?

[00:04:13] Speaker 02:
No.

[00:04:13] Speaker 01:
There is no indication in the... Well, I think Judge Freeland's just asking you a practical question, which is why you filed this motion.

[00:04:21] Speaker 01:
You did have a set of allegations about why the damages were X amount.

[00:04:26] Speaker 01:
Why didn't you just put that in a new complaint?

[00:04:29] Speaker 02:
Well, because also that was at the point of default judgment.

[00:04:31] Speaker 02:
So essentially, you'd be starting the case all over again at the point of default.

[00:04:34] Speaker 01:
So your understanding is that if you did that, it would lift the default?

[00:04:38] Speaker 01:
Was that the problem?

[00:04:39] Speaker 01:
Yes, and we would have to begin the case.

[00:04:42] Speaker 01:
Because I've looked for case law about this, and I don't think it's really necessarily clear whether that would lift the default.

[00:04:48] Speaker 01:
But one thing, under the federal rules, you wouldn't even have to serve that because

[00:04:52] Speaker 01:
You only have to reserve a new complaint if it's alleging a new claim, and that wouldn't be alleging a new claim.

[00:05:02] Speaker 01:
I don't know.

[00:05:04] Speaker 01:
On the other hand, I don't know what difference it would make, because what you did serve on them provided exactly the notice that a new complaint would have provided.

[00:05:13] Speaker 00:
So if I can just kind of walk through.

[00:05:15] Speaker 00:
So you would file a complaint in a case like this.

[00:05:18] Speaker 00:
If you want the defendant's profits, obviously you don't have any way of knowing what those are before you file the lawsuit.

[00:05:23] Speaker 00:
Yes, sir.

[00:05:24] Speaker 00:
Then they default.

[00:05:25] Speaker 00:
An order of default gets entered.

[00:05:26] Speaker 00:
Then under Rule 5 at that point, they're not entitled to notice of anything, right?

[00:05:30] Speaker 02:
Yes, Your Honor.

[00:05:31] Speaker 00:
OK.

[00:05:31] Speaker 00:
So what I'm getting from what you said before is that the reason you didn't go back and amend the complaint is you kind of got blindsided by this.

[00:05:40] Speaker 00:
I mean, is that fair inference?

[00:05:42] Speaker 02:
Yes, Your Honor, but also I think that what the case law supports is not attacking you.

[00:05:47] Speaker 02:
No, no, no.

[00:05:49] Speaker 03:
I don't think you could say you're blindsided because the district court asked you 100 times about this.

[00:05:53] Speaker 02:
And we did respond to the district court and provided.

[00:05:56] Speaker 00:
So here's where I was going.

[00:05:59] Speaker 00:
So let's say that you had taken a strong hint from the district judge to amend, and then you file a new complaint that's got this thing, but you're not required to serve anybody on it.

[00:06:10] Speaker 00:
Did anybody ever explain what purpose that would have served?

[00:06:14] Speaker 00:
It just seems like kind of empty formalism to me.

[00:06:17] Speaker 02:
Yes, frankly, I agree.

[00:06:19] Speaker 02:
And actually, Your Honor,

[00:06:22] Speaker 03:
Rather than suggesting that we file a new complaint, he suggested that I appeal because he'd like to know whether or not the... But when you said earlier to Judge Berzon that you did serve the document in which you requested the amount of damages in default.

[00:06:39] Speaker 02:
Yes.

[00:06:40] Speaker 03:
You said you served it, but really you just mean you filed it, right?

[00:06:43] Speaker 02:
Well, no.

[00:06:43] Speaker 02:
We actually did.

[00:06:44] Speaker 02:
So there was alternative methods of service that were provided for for the pendency of the action by the district court, and so we did actually

[00:06:52] Speaker 02:
proceed with serving them with a copy of the default judgment motion.

[00:06:56] Speaker 03:
But by e-service or how?

[00:06:58] Speaker 02:
No, well, so we did serve it through e-service, but we also used the alternative methods that were granted in the request for alternative service.

[00:07:09] Speaker 02:
Which was what?

[00:07:10] Speaker 02:
So there was, through their Amazon storefront, there was via an email address that was connected to their Amazon storefront.

[00:07:16] Speaker 02:
Um, and then there was, uh, one was essentially a posting on a website that is providing like a physical address or anything like that.

[00:07:24] Speaker 00:
No.

[00:07:24] Speaker 00:
Yeah.

[00:07:24] Speaker 03:
But are you saying that if you had amended the complaint, you wouldn't have had to do those same things?

[00:07:30] Speaker 02:
I would have.

[00:07:31] Speaker 02:
You would have had, and then we would have been starting over for the same results essentially.

[00:07:35] Speaker 02:
And you're saying that you would have, you didn't have to this time either.

[00:07:40] Speaker 01:
You did it.

[00:07:42] Speaker 00:
There's a difference between doing something and having to do something, right?

[00:07:44] Speaker 00:
So you did all of this stuff.

[00:07:46] Speaker 00:
But under rule, whatever it is, five, you didn't have to.

[00:07:50] Speaker 00:
You didn't have to serve the motion for default judgment on them, right?

[00:07:53] Speaker 00:
Because the rule says that once a party is defaulted, they're not entitled to notice anymore.

[00:07:58] Speaker 02:
Right.

[00:07:59] Speaker 00:
I'm not challenging you for doing it.

[00:08:00] Speaker 00:
I think it's a good thing that you did it.

[00:08:01] Speaker 00:
I mean, I have cases like this all the time.

[00:08:03] Speaker 00:
And I routinely tell them, send the thing, because sometimes that's what wakes the person up.

[00:08:09] Speaker 00:
But under the rules, is there any requirement that you had to serve the default judgment motion on them once they had actually defaulted?

[00:08:17] Speaker 02:
No, Your Honor.

[00:08:18] Speaker 00:
OK.

[00:08:21] Speaker 03:
If we were to disagree with you, and we thought that Rule 54 says you can't.

[00:08:27] Speaker 03:
We agreed with the district court.

[00:08:28] Speaker 03:
Rule 54 says you can't get an amount of damages unless you ask for it in a complaint.

[00:08:32] Speaker 03:
Let's just say hypothetically we decided that.

[00:08:35] Speaker 03:
Would you want an opportunity now to amend your complaint?

[00:08:39] Speaker 02:
Yes, Your Honor, but I think that it's clear from the case law that as long as you're giving the defendant a notice of the type of damages that they can expect, and particularly in a case like this one,

[00:08:51] Speaker 02:
where you're allowed to seek profits on a default.

[00:08:55] Speaker 02:
And you're taking that from Henry.

[00:08:57] Speaker 02:
Yes, I'm taking that from Henry.

[00:08:59] Speaker 03:
But in Henry, there at least was an amount that was within an order of magnitude of the amount that was granted.

[00:09:04] Speaker 03:
Here, you have no information.

[00:09:06] Speaker 03:
If we're talking millions, billions, we have no idea.

[00:09:08] Speaker 02:
Right, but in the case, well, first, in Henry, that was because there was a specific amount paid out.

[00:09:13] Speaker 02:
So why should a plaintiff be prejudiced as a result of what their actual claim is?

[00:09:18] Speaker 02:
So in that situation, there was a claim

[00:09:21] Speaker 02:
where the plaintiff had paid the defendant for stamps that turned out to be counterfeit.

[00:09:27] Speaker 02:
So part of the damages claim included that amount that was paid out.

[00:09:31] Speaker 02:
Here, that's just the facts are different.

[00:09:34] Speaker 02:
There is no amount that was paid from plaintiff to defendant, so that could not be included as part of the claim.

[00:09:39] Speaker 03:
But what do you think the purpose of Rule 54C is when it says this thing about not awarding more than it was requested?

[00:09:46] Speaker 02:
If you actually go into the case law with regard to the purpose is to ensure that a defendant is put on notice of the damages being sought against it so he can make a calculated decision as to whether or not it is in his best interest to answer.

[00:10:00] Speaker 02:
So essentially by saying that a plaintiff who has no idea what the damages would possibly be in terms of a certain sum,

[00:10:08] Speaker 02:
has to put a certain sum in order to get in the complaint in the beginning of the action when it has no idea that this defendant is going to default.

[00:10:15] Speaker 03:
I understand that you maybe can't when you file the original complaint.

[00:10:19] Speaker 03:
But then you don't know yet.

[00:10:20] Speaker 03:
There's no requirement that you put an amount in a complaint.

[00:10:23] Speaker 03:
But once you have the situation of a defaulting defendant and rule 54 is about notice to the defendant and there's nothing in dollar amount in the complaint,

[00:10:32] Speaker 03:
I'm not sure you don't have to amend.

[00:10:34] Speaker 03:
It's a penalty for having a defaulting defendant.

[00:10:36] Speaker 03:
But you have to have an amount at some point with proof.

[00:10:39] Speaker 03:
So what is the problem with amending?

[00:10:42] Speaker 02:
Well, so for example, in Henry, so right, we had the $71,000 that was in the complaint.

[00:10:51] Speaker 02:
And that was as a result of the money that the plaintiff paid to the defendant.

[00:10:56] Speaker 02:
In addition, he said,

[00:10:58] Speaker 02:
and other damages to be proven at trial, which is the same thing that we put in our complaint.

[00:11:04] Speaker 02:
And the court ended up awarding in Henry, the plaintiff, over $130,000 more than what was requested.

[00:11:15] Speaker 02:
So how is, I guess that doesn't square to me with, if the rule.

[00:11:19] Speaker 02:
And you don't dispute that you do have to prove up the amount.

[00:11:23] Speaker 02:
No, I don't dispute that.

[00:11:25] Speaker 02:
And we eventually, you know,

[00:11:27] Speaker 02:
What then happens is that the plaintiff is essentially then it's to their detriment because, for example, my client had to go and purchase a program that analyzes Amazon data in order to get some sort of information in order to prove up those damages.

[00:11:44] Speaker 02:
So then we would have had to amend and refile the complaint and essentially start over.

[00:11:49] Speaker 02:
I know we wouldn't have necessarily had to give

[00:11:51] Speaker 02:
notice to the defendant, but that still seems like a waste of judicial resources when we did actually put... What do you think starting over would have involved?

[00:11:59] Speaker 02:
Well, we would have... Fine, we would have had to amend the complaint, refile, and then go through the process of redoing a motion for default judgment.

[00:12:10] Speaker 03:
Could you just have filed the same thing, though?

[00:12:12] Speaker 02:
Sure, but I don't think that that, practically, maybe I could.

[00:12:15] Speaker 02:
But I don't think that the law requires that I do that.

[00:12:18] Speaker 03:
Well, I guess that's the question.

[00:12:19] Speaker 03:
What does Rule 54 require?

[00:12:20] Speaker 03:
So if we were to agree with you, my old question was if we disagree.

[00:12:24] Speaker 03:
If we do agree with you, do you need a remand to determine the amount of damages at that point?

[00:12:30] Speaker 03:
Because the district court has to find the amount of damages.

[00:12:32] Speaker 03:
And that didn't happen because the district court didn't think you could get them.

[00:12:35] Speaker 02:
he did find briefly that we could get them and that he changed his mind.

[00:12:40] Speaker 02:
But then he pulled that back, right.

[00:12:44] Speaker 02:
So I think he would have to make it a determination that either he agrees with our number or he doesn't and that we would have to perhaps litigate that.

[00:12:53] Speaker 03:
Because we would review that eventually for a clear error or maybe abusive discretion, but we don't have the discretion to set that amount ourselves at this point, right?

[00:13:04] Speaker 01:
Another practical question is, what good is a judgment against these people that you absolutely can't find?

[00:13:10] Speaker 02:
Well, so actually, that is a practical question.

[00:13:12] Speaker 02:
Actually, it is possible because they were selling on Amazon.

[00:13:19] Speaker 02:
If there is money in their Amazon account,

[00:13:23] Speaker 02:
we would technically be entitled to that to the extent we went through the process of serving this on Amazon and requesting that.

[00:13:30] Speaker 02:
So it is possible.

[00:13:31] Speaker 02:
Obviously, we're not usually not able to recover the full amount, but there is some damage that we are able to recover.

[00:13:38] Speaker 03:
But you don't need a complaint with an amount for that.

[00:13:40] Speaker 03:
You only need the default judgment.

[00:13:42] Speaker 02:
Right.

[00:13:46] Speaker 01:
Any other questions?

[00:13:48] Speaker 01:
I have one more question.

[00:13:49] Speaker 01:
You seem entirely convinced that if you filed a complaint,

[00:13:53] Speaker 01:
a new complaint, even one that doesn't have to be served under Rule 5, that would lift the default.

[00:13:59] Speaker 01:
And the defendant could, at that point, answer.

[00:14:03] Speaker 01:
Where do you get that from?

[00:14:06] Speaker 02:
I'm not sure I see how it's possible that I wouldn't have to do that, because I am amending a complaint.

[00:14:11] Speaker 02:
So I would have to serve an amended complaint.

[00:14:14] Speaker 01:
No, you don't.

[00:14:14] Speaker 01:
Under Rule 5, you'd only have to file the amended complaint if it states a new claim.

[00:14:18] Speaker 00:
Because the defendant's already been served with process.

[00:14:20] Speaker 03:
I think all you'd have to do is file it in the court.

[00:14:22] Speaker 02:
But then, if that's the case, then practically, how does that square with the fact that the complaint is supposed to provide the defendant with notice?

[00:14:30] Speaker 02:
If I can amend the complaint and just add a number now, and I'm not even going to serve that a defendant, then how does that square with Rule 54C, which requires the defendant has notice?

[00:14:39] Speaker 03:
They can look at the court docket.

[00:14:40] Speaker 03:
I guess.

[00:14:40] Speaker 03:
I mean, I don't know.

[00:14:41] Speaker 03:
Rule 54C says this thing.

[00:14:44] Speaker 02:
Right, but what the courts have interpreted that to mean is that because they're, so for example, in a, and I'll just make an analogy myself, if you have a contract case, right, whatever the number in the contract is, then that's easy, right?

[00:14:57] Speaker 02:
I know what I've lost as a result of this contract.

[00:15:00] Speaker 02:
I can stick that number

[00:15:01] Speaker 02:
in the complaint and that is where that's what we're looking for.

[00:15:05] Speaker 02:
But in a lot of cases, particularly in my experience in Lanham Act cases, you're looking for things like statutory damages, defendants' profits, things that are not readily ascertainable in the beginning of a case.

[00:15:18] Speaker 02:
And if the whole idea is to give a defendant notice, and I'm telling them, well, actually, I'm entitled to elect statutory damages at any point during the case.

[00:15:29] Speaker 02:
And then even then, the court has discretion towards statutory damages in a trademark case of anywhere between $2,000 and $2 million.

[00:15:37] Speaker 02:
How am I giving them notice on whether or not?

[00:15:39] Speaker 02:
And if some certainty is required, then aren't I incentivizing defendants to not show up, to not

[00:15:47] Speaker 02:
you know, to actually default if I don't have the ability to put in a some certain.

[00:15:51] Speaker 00:
Well, Rule 54 doesn't say anything about a some certain.

[00:15:54] Speaker 00:
It just says, can't exceed an amount.

[00:15:56] Speaker 00:
Now, so your complaint said, we want damages in an amount to be proven.

[00:16:02] Speaker 00:
You didn't ask for damages greater than an amount to be proven.

[00:16:04] Speaker 00:
You proved them, right?

[00:16:05] Speaker 00:
I mean, I... Right.

[00:16:06] Speaker 02:
So... Yeah.

[00:16:07] Speaker 02:
And also, like you said, it didn't say a some certain.

[00:16:11] Speaker 02:
The district court hung its hat on the fact that what was missing from our complaint was a some certain.

[00:16:18] Speaker 02:
what the holding was.

[00:16:19] Speaker 02:
It wasn't necessarily that it was more or less than what we put in the complaint.

[00:16:24] Speaker 02:
It was simply that we did not put us uncertain.

[00:16:29] Speaker 03:
Wouldn't your approach disincentivize people to ever put an amount in a complaint?

[00:16:35] Speaker 02:
Well, no, because, I mean, frankly, in all of the cases that we've cited to, and again, I understand that there is only one presidential opinion, in all the cases that we've cited to,

[00:16:46] Speaker 02:
um, where there was a some certain available for those claims that was put in.

[00:16:52] Speaker 02:
But then there was also additional language that on your reason on your reasoning, there'd be no need to.

[00:16:58] Speaker 03:
There's no no benefit of putting it in.

[00:17:00] Speaker 02:
Well, if I don't have it, then I insert.

[00:17:03] Speaker 02:
I think that the problem is that there are different claims.

[00:17:05] Speaker 02:
And with what we're dealing with here,

[00:17:07] Speaker 02:
There are some where that is available to you.

[00:17:09] Speaker 03:
Do you think Rule 54C should be interpreted differently depending on the type of claim?

[00:17:12] Speaker 02:
No, not necessarily.

[00:17:13] Speaker 02:
But I think that what Rule 54C requires is that you give them notice of the type of damages and the amount.

[00:17:20] Speaker 02:
Now, if an amount is allowed under a statutory range, then why isn't, or if an amount is allowed in terms of profits, who better than defendant to know what their profits are?

[00:17:32] Speaker 03:
But it could be like harm to reputation or something that would actually be in the plaintiff's

[00:17:38] Speaker 03:
I mean, there are lots of kinds of damages, so it's not always in the defendants.

[00:17:41] Speaker 03:
I mean, should Rule 54 be interpreted differently depending on the type of claim and who has the knowledge?

[00:17:45] Speaker 02:
No, I mean, I don't think so.

[00:17:47] Speaker 02:
I think it should be interpreted that a sum certain is not required for damages.

[00:17:53] Speaker 02:
What I was saying, basically, is that there are some cases where a sum can be included in the complaint.

[00:18:01] Speaker 02:
But what the law says is that if you ask for additional

[00:18:07] Speaker 02:
damages on top of what that sum is, and you define what those are, that should be sufficient.

[00:18:12] Speaker 01:
And if you don't have... The provision in Rule 54C that says that you can't get damages in excess of what's alleged in the complaint.

[00:18:24] Speaker 01:
On your approach, would apply when an amount is alleged.

[00:18:30] Speaker 01:
In other words, let's take the Henry case.

[00:18:33] Speaker 01:
If there hadn't been the additional language that it just alleged $78,000 or whatever, then they couldn't have gotten more than $78,000.

[00:18:40] Speaker 02:
Sure.

[00:18:41] Speaker 02:
If they didn't put in any additional request.

[00:18:44] Speaker 01:
So the question is what's the function of that?

[00:18:47] Speaker 01:
It's sort of not sandbagging.

[00:18:49] Speaker 01:
I mean, once you tell them that it's a certain amount, it has to be that amount, not more than that.

[00:18:53] Speaker 01:
But if you don't tell them, then there is.

[00:18:55] Speaker 02:
Well, it's not that you're not telling them.

[00:18:58] Speaker 02:
in certain cases where there's, like I said, statutory damage.

[00:19:02] Speaker 02:
I just think that that provides the best example, like in cases for statutory damages or in cases for profits.

[00:19:10] Speaker 02:
It's not that that's not giving them notice of what we would be entitled to.

[00:19:15] Speaker 02:
I'm either entitled to your profits, which you know what they are, or I'm entitled to statutory damages, which can range from $2,000 to $2 million.

[00:19:24] Speaker 02:
What if it's harmed to your reputation?

[00:19:27] Speaker 02:
What do you have to allege then?

[00:19:29] Speaker 02:
But well, then that has to be in an amount that would be proven at trial.

[00:19:35] Speaker 02:
I don't know how else you would allege that in a monetary amount.

[00:19:41] Speaker 03:
And the notice that Rule 54 is asking for is achieved how?

[00:19:46] Speaker 03:
Sorry?

[00:19:46] Speaker 03:
The notice that you acknowledge that Rule 54 is about notice.

[00:19:49] Speaker 03:
So how is that giving any notice?

[00:19:52] Speaker 02:
Well, I think that obviously damage to Goodwill and reputation, that is part of what would be permanent trial.

[00:20:05] Speaker 02:
But that's not the only thing that you're alleging.

[00:20:06] Speaker 02:
So even if you look at Henry, how would the defendant have known what the additional, I think it was,

[00:20:15] Speaker 02:
Sorry, and Henry, it was the 71,000 plus.

[00:20:18] Speaker 02:
It was like damages for pain and suffering.

[00:20:21] Speaker 02:
How is that quantifiable?

[00:20:22] Speaker 02:
And the court found that, sorry.

[00:20:24] Speaker 01:
One other question is under the discovery rules, you would have to estimate damages in initial disclosures pretty soon, early on in the case, right?

[00:20:39] Speaker 01:
So whatever problem you have in being able to do that, it's going to happen anyway, right?

[00:20:46] Speaker 01:
pre-discovery, you have to provide an estimate of damages.

[00:20:51] Speaker 02:
Sure, but even there, you still, it would still be, particularly like in a Lanham Act case, you're still talking about either profits or, and again, at any time during the case, you can elect statutory damages.

[00:21:07] Speaker 01:
But you'd have to come up with some number pretty early on.

[00:21:12] Speaker 02:
Sure, but I have to prove up that.

[00:21:13] Speaker 01:
I don't have any idea why the rules are written this way, but it doesn't have to be in the complaint, but under relatively recent amendments, it does have to be, it does have to be a number given pretty early on.

[00:21:28] Speaker 01:
So you would have had to do whatever research you did.

[00:21:31] Speaker 02:
Sure, and initial disclosures if I had, but then in that case, that wouldn't be a default, right?

[00:21:35] Speaker 02:
If I was exchanging initial disclosures.

[00:21:37] Speaker 01:
Oh, no, I understand that, but the question is in terms of the plaintiffs' problems.

[00:21:41] Speaker 01:
from, you do still have to come up with a number.

[00:21:44] Speaker 00:
Right.

[00:21:45] Speaker 00:
But as a practical matter, you end up, I mean, as cases get litigated in the district court, you can't always put a specific number in your initial rule 26 disclosures.

[00:21:52] Speaker 00:
You sometimes have to fix that as it goes, and you get more information, more discovery, right?

[00:21:56] Speaker 00:
That's pretty partial, of course.

[00:21:58] Speaker 02:
And you are allowed to amend your initial disclosures.

[00:22:00] Speaker 00:
Or 26E, you're allowed to do that up until close of discovery, pretty much.

[00:22:03] Speaker 02:
Right.

[00:22:04] Speaker 02:
So this is, I mean, this is obviously particularly with respect to a default.

[00:22:08] Speaker 02:
Judgment which does differ than when if the defendant showed up.

[00:22:11] Speaker 02:
We wouldn't have this problem.

[00:22:13] Speaker 02:
So that's I think the issue that you're basically you're putting a plaintiff at a disadvantage because they have to come up with a sum at the time that they File the complaint which is not certain no matter what Or you need to amend right okay?

[00:22:29] Speaker 03:
I think we I think we've covered the issue, so thank you very much for the helpful argument this case is submitted