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ERIE CONDUIT CORP. v. METROPOLITAN ASPHALT PAVING

March 9, 1983

ERIE CONDUIT CORPORATION, Plaintiff,
v.
METROPOLITAN ASPHALT PAVING ASSOCIATION, ET AL., Defendants



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

 McLAUGHLIN, District Judge

 Erie Conduit Corporation ("Erie") instituted this action on March 14, 1977 pursuant to 15 U.S.C. §§ 15 and 26 (Clayton Act), charging a conspiracy in violation of 15 U.S.C. §§ 1 and 2 (Sherman Act). Defendants have jointly moved to dismiss the complaint for (1) failure to prosecute, (2) failure to produce evidence of damages, and (3) failure to comply with the Order of this Court dated November 20, 1981. Defendants have also moved for summary judgment pursuant to Fed. R. Civ. P. 56 or, in the alternative, for an order pursuant to Fed. R. Civ. P. 37 precluding Erie from introducing evidence of damages at trial. Because virtually identical motions were denied by Judge Mishler prior to the transfer of the case to this Court, Judge Mishler's previous rulings stand as law of the case, and defendants' renewed motions must be denied.

 BACKGROUND

 Late in 1980, defendants jointly moved to dismiss the complaint for failure to prosecute and for failure to produce any evidence of damages. In the alternative, defendants sought an order pursuant to Fed. R. Civ. P. 37 precluding plaintiff from producing evidence of damages at trial. Judge Mishler denied defendants' motions in all respects, stating that "the question of the legal sufficiency of evidence of damage is reserved until after the plaintiff has presented its evidence and rested." Memorandum of Decision and Order, p. 2 (January 8, 1981).

 Defendants, upon receiving Judge Mishler's Order, immediately moved to reargue their motions or, in the alternative, to certify an interlocutory appeal to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1292(b). In support of their motions, defendants claimed, inter alia, that Judge Mishler had "overlooked completely" the cases of Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062 (2d Cir. 1979), and Chira v. Lockheed Aircraft Corp., 634 F.2d 664 (2d Cir. 1980). *fn1" Esbitt Affidavit at p. 2 (January 28, 1981).

 On February 20, 1981, Judge Mishler denied "defendants' motions to reargue their prior motions to dismiss (or for summary judgment) and, in the alternative, for leave to appeal to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1292 (b) . . . ." Memorandum of Decision and Order, p. 1 (February 20, 1981). *fn2"

 Defendants subsequently requested that Judge Mishler refer the case to a United States Magistrate for a report and recommendation on the issue of "whether the proof of plaintiff's alleged damages is sufficient to create a factual issue warranting a trial." Richard L. Gold Letter to Judge Mishler (July 23, 1981). Judge Mishler denied the defendants' request stating that the issue of "whether plaintiff can make out a prima facie case on the issues of causal relation and damages will await the presentation of the plaintiff's case at trial and not before." Judge Mishler Letter to All Parties (July 27, 1981).

 Shortly after this series of orders by Judge Mishler, the case was transferred to this Court. In an effort to further narrow the issues for trial, the Court issued the following order:

 
On or before December 14, 1981, plaintiff is ordered to disclose to defendants the identity of its expert witness on the issue of damages. At the same time, plaintiff is ordered to file with this Court and to produce to defendants a comprehensive report setting forth each of its damage theories, a brief statement of the facts and opinions relevant to plaintiff's damage theories, and a summary of the grounds for each opinion.

 Order (November 20, 1981).

 Plaintiff subsequently named Frank L. Holloway as its expert witness on the issue of damages and furnished defendants and the Court with a copy of Holloway's report. Patrick M. Wall Letter to Judge McLaughlin (December 14, 1981). Upon receipt of the Holloway report and after conducting a portion of the deposition of Holloway, Messrs. Honig and Esbitt filed the instant motions. Mr. Gold joined in those motions. Oral argument on the "Honig-Esbitt" motions was heard on May 18, 1982. The Court reserved decision on the motions and further ordered that "counsel for the plaintiff submit a memorandum of law on whether a 'reasonably competent construction company' analysis constitutes sufficient evidence of damages in this case . . . ." Order (May 18, 1982). Plaintiff filed its memorandum of law on September 23, 1982, and Messrs. Honig and Esbitt filed "replies" on October 12, 1982. Plaintiff's "sur-reply" was filed on October 29, 1982.

 DISCUSSION

 "Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single lawsuit." 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478 at 788 (1981). These rules reflect "the respect that one judge or court owes the ...


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