United States District Court, W.D. Missouri, Southern Division
ORDER (1) ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION; AND (2) ENTERING JUDGMENT IN FAVOR OF PLAINTIFFS
ORTRIE D. SMITH, Senior District Judge.
On December 9, 2013, the Court referred this case to the Honorable David P. Rush, United States Magistrate Judge, for purposes of conducting a hearing on damages and making a Report and Recommendation. On December 11, 2013, the hearing on damages was held. On July 7, 2014, Judge Rush entered his Report and Recommendation (Doc. # 135). No response was filed to the Report and Recommendation and the time for doing so has passed. After conducting a de novo review, the Court hereby adopts the Report and Recommendation in its entirety. Accordingly, the Court finds the following:
1. Tracker Marine, LLC is a limited liability company organized and existing under the laws of the State of Missouri, with its principal place of business in Springfield, Missouri.
2. Mako Marine International, LLC f/k/a Mako Marine International, Inc. is a limited liability company organized and existing under the laws of the State of Delaware with its principal place of business in Springfield, Missouri.
3. At all relevant times hereto, Defendant Sunset Marine was a corporation organized and existing under the laws of the Commonwealth of Puerto Rico. and, at all relevant times hereto, was the owner, operator, and president of Sunset Marine.
5. Defendant Perea is a married individual, the spouse of Nieto, residing in San Juan, Puerto Rico.
6. Jurisdiction and venue are proper in this Court.
7. Tracker Marine filed its Complaint on July 12, 2011, against Sunset Marine and the Nietos.
8. Sunset Marine and the Nietos failed to comply with discovery practice and refused to comply with multiple Orders of this Court. Days prior to the original trial setting, Sunset Marine filed for bankruptcy protection.
9. Sunset Marine is the Chapter 11 Debtor in In re Sunset Marine of PR, Inc., Case No. 12-090983 (MCF), United States Bankruptcy Court for the District of Puerto Rico (the "Sunset Bankruptcy Action"), and, on July 24, 2013, the automatic stay was modified in the Sunset Bankruptcy Action to permit the instant case to proceed to "final, firm and unappealable judgment."
10. Tracker Marine filed its Motion for Sanctions for Defendants' ongoing discovery violations, which the Court granted in part and permitted Tracker Marine to renew at the end of the case.
11. Tracker Marine filed its First Amended Complaint on November 18, 2013.
12. Sunset Marine and the Nietos again failed to comply with this Court's Orders, including an Order for the individuals to respond fully to Tracker Marine's outstanding discovery requests by date certain and for all Defendants to retain local counsel.
13. On December 2, 2013, this Court struck Defendants' pleadings as sanctions; namely, the Defendants' Answer, Affirmative Defenses, and Counterclaims alleged and filed against Tracker Marine and in response to Tracker Marine's Complaint.
14. Tracker Marine is the manufacturer of various models of boats, boat packages, motors, trailers, and marine accessories.
15. Sunset Marine is an entity formerly authorized to purchase and re-sell to first-use retail customers one or more boats, boat packages, or other Tracker products specifically authorized by Tracker.
16. In 2005, Tracker and Sunset Marine first entered into a Dealer Agreement, which appointed Sunset Marine as an independent, non-exclusive Dealer authorized to purchase certain model year Tracker products for resale to first-use retail purchasers.
17. Tracker and Sunset Marine maintained the dealership relationship for the model years 2006, 2007, 2008, and 2009.
18. Dealer Agreements between Tracker and an authorized dealer for the next model year programs typically were executed in August of the preceding calendar year with a term to end in July of the model year.
19. By mutual agreement and delay, the 2008 model year Dealer Agreement was fully executed by the parties on May ...