United States District Court, N.D. Illinois, Eastern Division
September 1, 2005.
PEARLE VISION, INC., a Delaware Corporation, and PEARLE, INC., a Delaware Corporation, Plaintiff,
VICTOR ROMM, individually, VICTOR ROMM d/b/a ROMM & COMPANY, INC., VICTOR ROMM d/b/a ROMM VISION ENTERPRISES, INC., VICTOR ROMM d/b/a EYES 2000 LTD., ROMM & COMPANY, INC., an Illinois Corporation, ROMM VISION ENTERPRISES, INC., an Illinois Corporation, and EYES 2000 LTD., an Illinois Corporation, Defendants.
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
Pearle Vision, Inc. and Pearle, Inc., (together, "Pearle
Vision") move for dismissal of defendants' Counterclaim for want
of prosecution and an order of default in favor of Pearle Vision
under Local Rule 41.1. For the following reasons, the court finds
that defendants' counterclaim should be dismissed.
Pearle Vision filed suit to terminate four Pearle Vision
franchises and to recover the lease premises. Defendants
counterclaimed, alleging, in general that their franchises were
wrongfully terminated. On September 30, 2004, this court granted
the Emergency Motion of Pearle Vision, Inc. and Pearle, Inc. for
a Preliminary Injunction which, among other things, awarded
Pearle Vision immediate possession of the premises upon which defendants
operated their franchises and instructed defendants not to
infringe upon Pearle Vision's trademarks or otherwise hold
themselves out as a present or former franchisee of Pearle
On February 15, 2005, defendants' attorneys were granted leave
to withdraw for lack of cooperation. In the Order granting them
leave, the court directed defendant Romm to appear individually
with new counsel for the corporate entities for the next status
hearing, which was set for March 8, 2005. Romm failed to appear
for that status hearing, however, and no counsel appeared on
behalf of the corporate entities. The court set the next status
hearing for March 29, 2005.
On March 29, 2005, Romm appeared and informed the court that he
planned to retain a new attorney. The court set the next status
hearing for April 18, 2005 and warned Romm that he should retain
a new attorney by that date. Despite the court's warning, on
April 18, 2005, Romm once again failed to appear for a scheduled
status hearing and no counsel filed an appearance on his behalf
or on behalf of any of the corporate entities. The court set
another status hearing for May 17, 2005.
On May 13, 2005, Pearle Vision filed their Motion for Dismissal
for Want of Prosecution and Order of Default. On May 17, 2005,
Pearle Vision also filed a Motion for Summary Judgment. At the
May 17, 2005 status hearing, the court entered a briefing
schedule on the Motions allowing defendants until June 16, 2005
to file responses. Defendants failed to file a response by June
Instead, on June 23, 2005, a full week after the court's stated
deadline for filing responses, Gregory J. Ellis filed an
appearance on behalf of Romm and the corporate entities and filed
a motion for an extension of time to respond to the Motions. On
July 13, 2005, the court entered another briefing schedule on the Motions allowing
defendants until July 27, 2005 to file and serve responses to the
Motions and allowing Pearle Vision until August 10, 2005 to file
replies. Again, defendants failed to file a response.
Thus, on August 24, 2005, the court ordered defendants to
respond by August 30, 2005, to the Motions or suffer dismissal of
their counterclaim. Defendants still failed to respond.
Under Federal Rule of Civil Procedure 41 and Northern District
of Illinois Local Rule 41.1, the court may dismiss an action or
counterclaim for failure to prosecute or to comply with the rules
of the court's orders. Dismissal of a case "is one of the tools
available to district courts `to achieve the orderly and
expeditious disposition of cases.'" Williams v. Chic. Bd. Of
Educ., 155 F.3d 853, 857 (7th Cir. 1998) (quoting Link v.
Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1389 (1962)).
Because dismissal is such a harsh sanction, it "should be used
`only in extreme situations, when there is a clear record of
delay or contumacious conduct, or when other less drastic
sanctions have proven unavailing.'" Id. (quoting Dunphy v.
McKee, 134 F.3d 1297, 1299 (7th Cir. 1998) (citations omitted)).
Defendants' conduct compels this court to reach the conclusion
that their counterclaim should be dismissed for failure to
prosecute. Defendants have failed to appear for status hearings
or to respond to Pearle Vision's dispositive motions even after
the court twice extended defendants' time for filing responses.
While a new attorney ultimately filed an appearance on behalf of
Romm and the corporate defendants, the attorney has done nothing
further to prosecute defendants' counterclaim. Defendants were
warned that a failure to respond would result in the dismissal of
their counterclaim. Defendants have delayed and flagrantly
disregarded this court's orders and have, by these actions,
demonstrated their disinterest in their case.
Therefore, for the reasons discussed above, we order
defendants' case dismissed with prejudice.
For the reasons stated above, Pearle Vision's Motion for
Dismissal for Want of Prosecution (#52) is granted. MEMORANDUM OPINION AND ORDER
Plaintiffs, Pearle Vision, Inc. and Pearle, Inc. (together,
"Pearle Vision"), allege in Counts I-VIII of their nine-count
Second Amended Complaint that defendants, Victor Romm ("Romm"),
individually, Victor Romm d/b/a Romm Vision Enterprises, Inc.,
Victor Romm d/b/a Eyes 2000, Ltd., Romm & Company, Inc., Romm
Vision Enterprises, Inc., and Eyes 2000, Ltd., breached four
Franchise Agreements under which they franchised Pearle Vision
optical stores thereby forfeiting their rights to operate the
franchises or to occupy the premises upon which they are located.
Count IX, which is not a subject of this motion, alleges a
violation of the Lanham Act (15 U.S.C. §§ 1051-1127) and the
common law of the State of Illinois due to defendants' unauthorized use of the "Pearle" and "Pearle Vision" names and
marks. Pearle Vision moves for summary judgment on Counts I-VIII.
For the reasons stated below, the motion is granted.
Pearle Vision also moves for summary judgment on defendants'
counterclaim which alleges, in general, that their franchises
were wrongfully terminated. Since the court orders dismissal of
defendants' counterclaim for want of prosecution in a companion
order entered today, the court need not address Pearle Vision's
motion for summary judgment on defendants' counterclaim.
SUMMARY JUDGMENT STANDARDS
Summary judgment obviates the need for a trial where there is
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
To determine whether any genuine fact issue exists, the court
must pierce the pleadings and assess the proof as presented in
depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Fed R. Civ. P. 56(c)
Advisory Committee's notes. The party seeking summary judgment
bears the initial burden of proving there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In response, the nonmoving
party cannot rest on bare pleadings alone but must use the
evidentiary tools listed above to designate specific material
facts showing that there is a genuine issue for trial. Id. at
324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir.
2000). A material fact must be outcome determinative under the
governing law. Insolia, 216 F.3d at 598-99. Although a bare
contention that an issue of fact exists is insufficient to create
a factual dispute, Bellaver v. Quanex Corp., 200 F.3d 485, 492
(7th Cir. 2000), the court must construe all facts in a light
most favorable to the nonmoving party as well as view all
reasonable inferences in that party's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
The United States District Court Rules for the Northern
District of Illinois, Local Rule 56.1(3), however, requires a
party opposing a motion for summary judgment to serve and file a
concise response to the movant's statement of material facts, as
well as a statement of any additional facts that require the
denial of summary judgment. Local Rule 56.1(b)(3)(B) specifically
provides that "[a]ll material facts set forth in the statement
required of the moving party will be deemed to be admitted unless
controverted by the statement of the opposing party." Thus, where
a party fails to a concise opposing response statement, the court
properly "departs from its usual posture of construing facts and
inferences favorably to the non-moving party and accepts as true
all material facts contained in the moving party's supporting
statement." Brasic v. Heinemann's Inc., 121 F.3d 281 (7th Cir.
1997); Smith on Behalf of Smith v. Severn, 129 F.3d 419 (7th
Cir. 1997); Stewart v. McGinnis, 5 F.3d 1031 (7th Cir. 1993).
Pearle Vision owns, franchises and leases retail optical
stores. (Def. L.R. 56.1 ¶ 1.) Beginning in 1997, Pearle Vision
entered into four separate Franchise Agreements with Romm and the
various corporations he formed to operate the Pearle Vision
optical store franchises in Villa Park, Geneva, Elk Grove Village
and Elgin. (Id. ¶ 6-9.)
Specifically, on or about June 2, 1997, Pearle Vision entered
into a Franchise Agreement with Romm Vision Enterprises, Inc.,
for the Pearle Vision store located at 1749 Randall Road, Geneva,
Kane County, Illinois (the "Geneva store"). (Id. ¶ 7.) Romm
Vision Enterprises, Inc. was an Illinois corporation, but it was
involuntarily dissolved by the Illinois Secretary of State on
October 1, 2003. (Id.) Romm, the president of Romm Vision
Enterprises, Inc., continued to operate the Geneva store in his
individual capacity after the dissolution of Romm Vision Enterprises, Inc. (Id.)
On September 21, 1998, Romm Vision Enterprises, Inc., entered
into a Lease with Geneva Christina, L.L.C., the landlord for the
premises at the Geneva store. (Second Amend. Compl., Count IV, ¶
24, 25.) Pearle Vision is a guarantor of that Lease, and is
obligated to make payments not made by Romm Vision Enterprises,
Inc. or Romm. (Id.) The Rider to the Lease Agreement signed by
the franchisee, Geneva Christina, L.L.C., and Pearle Vision give
Pearle Vision the right, at its option, to assume the balance of
the term of the Lease on termination of the Geneva Franchise
Agreement. (Id.) Pearle Vision exercised that option in a
letter to the landlord dated June 29, 2004. (Id.)
On or about April 2, 1998, Pearle Vision entered into a
Franchise Agreement with Romm and Romm Vision Enterprises, Inc.,
for the Pearle Vision store located at 914 Elk Grove Town Center,
Elk Grove, Cook County, Illinois ("the Elk Grove store"). (Def.
L.R. 56.1 ¶ 8.) Romm personally guaranteed the performance of all
obligations of the former franchisee, Romm Vision Enterprises,
Inc., through a personal guaranty made part of and incorporated
into the Elk Grove Franchise Agreement. (Id.)
On January 14, 1998, Romm entered into a Lease with Elk Grove
Town Center, L.L.C., the landlord for the premises of the Elk
Grove store. (Second Amend. Compl., Count VI, ¶ 25, 26)
Attachment J-1 to the Franchise Agreement, which was also signed
by the landlord, gives Pearle Vision the right, at its option, to
assume the balance of the term upon the termination of the
Franchise Agreement. (Id.) Pearle Vision exercised that option
in a letter sent to the landlord on June 29, 2004. Paragraph 34A
of the Franchise Agreement gave Pearle Vision the right to assume
the third-party lease from the franchisee. (Id.)
On about August 27, 2001, Pearle Vision entered into a
Franchise Agreement with Romm & Company, Inc., for the Pearle Vision store located at 351 West
North Avenue, Villa Park, DuPage County, Illinois ("the Villa
Park Store"). (Def. L.R. 56.1 ¶ 6.) Romm personally guaranteed
the performance of all the obligations of the former franchisee,
Romm & Company, Inc. (Id.)
Pearle Vision is the owner of a leasehold interest in the
property at the Villa Park Store. (Second Amend. Compl., Count
II, ¶ 24, 25.) Pearle Vision and Romm & Company, Inc. entered
into a Sublease effective as of September 1, 2001 for the Pearle
Vision store located on the property. (Id.) Paragraph 10 of the
Sublease states that Pearle Vision may terminate the Sublease
immediately if the subtenant is in default under the Villa Park
Franchise Agreement and fails to cure the default within ten days
after notice from Pearle Vision. (Id.)
On or about April 7, 2003, Pearle Vision entered into a
Franchise Agreement with Eyes 2000, Ltd., for the Pearle Vision
store located at 320-328 Randall Road, Elgin, DuPage County,
Illinois ("the Elgin store"). (Def. L.R. 56.1 ¶ 9.) Romm
personally guaranteed the performance of all obligations of the
former franchisee, Romm & Company, Inc., through a personal
guaranty made part of and incorporated into the Elgin Agreement.
On August 25, 2002, Eyes 2000 Ltd., entered into a Lease with
Greco/Reggi Randall, L.L.C., for the premises of the Elgin store.
(Second Amend. Compl., Count VIII, ¶ 25.) Pearle Vision
guaranteed all payments under that Lease. (Id.) The franchisee
has the right to assign the Lease to Pearle Vision without the
landlord's consent, and the Elgin Franchise Agreement states that
upon termination Pearle Vision has the right to assume the
third-party Lease. (Id.)
Each of the four Franchise Agreements contained identical
default provisions. (Def. L.R. 56.1 ¶ 10.) Paragraph 32A of the
Franchise Agreements provides that, if not cured within 30 days
of a Notice of Termination, the occurrence of any of the
following defaults will cause the Agreement to terminate:
"Franchisee fails to comply with the provisions of
this Agreement relating to . . .
(k) Recordkeeping, Reporting, Audits, . . .
(m) Franchisee Insurance and Indemnification, . . .
(o) Payments; [or]
(ii) Franchisee fails to maintain and operate the Franchise
Business in accordance with this Agreement and the standards and
specifications prescribed by [Pearle Vision].
(iii) Franchisee fails to pay when due any amount owed [Pearle
Vision] (or any amount guaranteed by [Pearle Vision] on
Franchisee's behalf), its Affiliates or any other person or
entity in connection with the operation of the Franchise
(v) Franchisee fails to comply with any other agreement to
which [Pearle Vision] or its Affiliates and Franchisee (or any
Owner of Franchisee) are parties, including but not limited to
other franchise agreements to which Franchisee (or any Owner of
Franchisee) is a party with [Pearle Vision]; [or]
(vi) Franchisee fails to comply with the TPDA [Third-Party
Dispensing Agreement] if such agreement is a part hereof."
In addition, Paragraph 32B provides that the Franchise
Agreements would terminate without an opportunity to cure if
there were two or more defaults within a twelve month period.
From September 2003 through May 2004 when Pearle Vision
terminated defendants' franchises, defendants committed multiple
violations of the Franchise Agreements. In particular, Paragraph
13 required defendants to submit to Pearle Vision monthly reports
detailing gross revenues for the preceding month, while
paragraphs 13 and 14 required defendants to pay Pearle Vision a
Royalty and an Advertising Contribution based on a specified
percentage of monthly gross revenues. (Id. ¶ 11, 13.) From
September 2003 through May 2004, Romm failed to submit to Pearle
Vision the monthly reports and failed to pay Pearle Vision its
percentage of the franchises' gross revenue. (Id. ¶ 13-16.) On
January 28, 2004, Pearle Vision's Director of Franchise Financial
Services, Chiquita Adams ("Adams"), sent Romm a letter in which
she demanded immediate submission of the monthly gross revenue
reports for each of the four franchises for September through
December 2003, as well as payment for the franchises' respective
Royalty and Advertising contributions for those months. (Id. ¶
16.) Defendants failed to cure the defaults. (Id. ¶ 13-16.)
On November 11, 2003, Pearle Vision received notice from Geneva
Christina L.L.C. ("Landlord"), the landlord for defendants'
Geneva store. (Id. ¶ 21.) Pearle Vision paid the November 2003
rent on behalf of defendants' Geneva franchise. On November 20,
2003, Pearle Vision notified Romm that he was in default of
Paragraph 32 A(3) of his Franchise Agreement.
On November 26, 2003, Pearle Vision received notice from Romm's
liability insurer that his insurance on all four franchises had
been cancelled for non-payment of the premiums. (Id. ¶ 18.)
Paragraph 24 of the Franchise Agreements required Romm to
maintain liability insurance in specified amounts. (Id.) On
December 2, 2003, Pearle Vision served Romm with a Notice of
Default under the Franchise Agreements for his failure to
maintain liability insurance and, pursuant to the Franchise
Agreements, gave him thirty days to cure the default. (Id.)
Pearle Vision maintained an inventory purchase program through
which franchisees placed orders for items to stock on the shelves
and to fulfill specific requests by individual customers. (Id.
¶ 24, 25.) Romm acknowledges placing multiple orders through
Pearle Vision's inventory program, receiving the ordered
products, and then failing to pay Pearle Vision for the products
in violation of the Franchise Agreements. (Id.)
In Paragraph 39 of the Franchise Agreements, Romm and Pearle
Vision agreed to provide products and professional services to
third-party managed vision care programs in accordance with a
Third-Party Dispensing Agreement ("TPDA"), which was attached to
and incorporated into each of the Franchise Agreements. (Id. ¶
19, 20.) The TPDA itself incorporated a Third-Party Provider Agreement ("TPPA"). (Id.) In October 2003, Cole
Managed Vision, which administered the TPDA and TPPA on behalf of
Pearle, performed an audit of defendants' practices under the
TPDA and TPPA. (Id.) The audit examined a sample of the claims
submitted by defendants under the TPDA and TPPA, and the audit
revealed that approximately 95% of the submitted claims contained
errors or false statements. (Id.) The false statements ranged
from the wrong price being charged for products and services, to
inaccurate portions of the member's payments having been
submitted to Cole Managed Vision, to the failure to provide the
charged product or service. (Id.) These false statements
violated the TPDA and TPPA, and thus, on September 29, 2003, Cole
Managed Vision informed Romm that the TPDA and TPPA for the
Geneva franchise would be terminated on December 31, 2003.
(Id.) Romm failed to cure the non-conforming practices that
were set out in detail in the Default Notices resulting in the
termination of the TPDA and TPPA incorporated into the four
On May 4, 2004, Pearle Vision served defendants with Notices of
Default for all four franchises based on their failure to submit
monthly revenue reports as required by Paragraphs 13D and
32A(i)(k) of the Franchise Agreements and their failure to pay
Pearle Vision amounts owing for products and services provided to
defendants, as well as the Royalty and Advertising Contribution
Payments required under paragraphs 13 and 14, and for rent on the
Villa Park Store. (Id. ¶ 12.) Pursuant to the Franchise
Agreements, Pearle Vision gave defendants thirty days to cure the
defaults. (Id. ¶ 12.) Defendants failed to cure the defaults
and thus, Pearle Vision terminated all four franchises. (Id. ¶
I. Breach of Franchise Agreements
In counts I, III, V, and VII of the Complaint, Pearle Vision
alleges that defendants committed multiple material violations of the four Franchise
Agreements that entitle Pearle Vision to terminate the
franchises. Pearle Vision bases its right to cancel the Franchise
Agreements not only on defendants' failure to cure their defaults
in a timely fashion once they received notice, but also on the
repeated violations committed by defendants within a 12-month
The facts bearing on Pearle Vision's motion are uncontested.
Defendants failed to serve and file a response to Pearle Vision's
statement of material facts, a statement of their own setting
forth any additional facts supporting a denial of summary
judgment, or even a brief opposing Pearle Vision's motion for
summary judgment. Accordingly, pursuant to Local Rule
56.1(b)(3)(B), the court deems admitted all facts set forth in
Pearle Vision's Statement of Undisputed Material Facts and draws
all reasonable inferences therefrom in Pearle Vision's favor.
Brasic v. Heinemann's Inc., 121 F.3d 281 (7th Cir. 1997);
Smith on Behalf of Smith v. Severn, 129 F.3d 419 (7th Cir.
1997); Stewart v. McGinnis, 5 F.3d 1031 (7th Cir. 1993).
The Franchise Agreements' identical default provisions
authorize Pearle Vision to terminate the franchises for failure
to comply with any provision of the Franchise Agreements, any
agreement contained therein, or any agreement to which Pearle
Vision is a party. (Def. L.R. 56.1 ¶ 32A.) The Illinois Franchise
Disclosure Act, however, requires a franchisor to show "good
cause" before terminating a franchise. Nevertheless, "good cause"
is similarly defined, so far as it relates to this case, as
either "the failure of the franchisee to comply with any lawful
provisions of the franchise or other agreement and to cure such
default after being given notice thereof and a reasonable
opportunity to cure such default, which in no event need be more
than 30 days," or, "without the requirement of notice and an
opportunity to cure, situations in which the franchisee . . .
repeatedly fails to comply with the lawful provisions of the
franchise or other agreement." 815 ILCS 705/19(b), (c)(4).
In support of its motion for summary judgment, Pearle Vision
cites numerous discrete breaches of the Franchise Agreements
justifying its termination of defendants' franchises. The record
evidence shows that defendants breached the Franchise Agreements
by: failing to submit monthly reports detailing gross revenues
and failing to pay Pearle Vision its percentage of that revenue
as a Royalty and Advertising Contribution; failing to pay rent or
to reimburse Pearle Vision for payments made by Pearle Vision to
store landlords for defendants' rent; failure to maintain
liability insurance; failure to maintain an optometrist's
license; failure to pay for products and services purchased
through Pearle Vision's inventory program; overcharging
third-party managed vision care members for products and services
in violation of the TPDA and TPPA; and failure to deliver
products and services purchased by third-party managed vision
care members in violation of the TPDA and TPPA.
The record evidence further shows that after nearly all of
these violations Pearle Vision sent defendants a notice of
default. While defendants cured some of the defaults within the
thirty day grace period, they failed to cure the defaults based
on lack of reporting and lack of payment of amounts due to Pearle
Vision. Indeed, defendants not only failed to cure the defaults
within thirty days of receiving notice on January 28, 2004, but
they also failed to cure the defaults after receiving a second
notice on May 4, 2004. Both notices clearly and unequivocally
informed defendants of Pearle Vision's intent to terminate the
franchises if defendants failed to cure the defaults.
Furthermore, Pearle Vision relies on the alternative ground for
termination two or more violations within a 12-month period, a
ground that does not require notice or an opportunity to cure.
The court need not decide whether two violations within a
12-month period equates to "repeatedly" failing to comply with the agreement as required by
the Illinois Franchise Disclosure Act. As the Seventh Circuit
found in Original Great American Chocolate Chip Cookie Co., Inc.
v. River Valley Cookies, Ltd., 970 F.2d 273 (7th Cir. 1992),
"even if the agreement violated the Franchise Disclosure Act by
failing to specify some higher number, this would authorize the
court, not to strike the entire provision, but only to restrict
it to cases in which the franchisee's violations could fairly be
described as repeated-and here it should be pointed that there is
no 12-month limitation in the Act." Here, Pearle Vision has
clearly established a case of repeated violations.
The court is persuaded that there is no genuine issue of
material fact as to whether defendants repeatedly and materially
violated the four Franchise Agreements thereby justifying Pearle
Vision's termination of defendants' franchises. Accordingly,
Pearle Vision's motion for summary judgment on Counts I, III, V,
and VII is granted.
II. Termination and Assumption of Leases
In Counts II, IV, VI, and VIII Pearle Vision alleges that it is
entitled to terminate or assume the leases for the premises of
the four franchises operated by defendants and to take immediate
possession of those premises.
The Franchise Agreements and ancillary agreements between the
parties, give Pearle Vision the right to either terminate or
assume the leases held by defendants for the premises on which
the franchises are operated. Specifically, the rider to the lease
entered into between Geneva Christina L.L.C. and Romm
Enterprises, Inc. gives Pearle Vision the right to assume the
balance of the Lease on termination of the Geneva Franchise
Agreement. Paragraph 10 of the Sublease entered into between
Pearle Vision and Romm & Company for the premises of the Villa
Park store provides that Pearle Vision may terminate the Sublease
immediately if Romm & Company defaults under the Villa Park Franchise Agreement.
Attachment J-1 to the Elk Grove store gives Pearle Vision the
right to assume the balance of the lease entered in between Romm
and Elk Grove Town Center, L.L.C. upon the termination of the Elk
Grove Franchise Agreement. Paragraph 34A of the Elgin Franchise
Agreement provides that Pearle Vision has the right to assume the
Lease entered into between Eyes 2000 Ltd. and Greco/Reggi
Randall, L.L.C. for the premises of the Elgin store upon the
termination of the Elgin Franchise Agreement.
Having already found that Pearle Vision was justified in
terminating the Franchise Agreements governing defendants' four
franchises, the Court grants Pearle Vision's motion for summary
judgment on Counts II, IV, VIII and VII.
For the reasons stated above, Pearle Vision's motion for
summary judgment (#56) is granted. Pearle Vision is instructed to
submit to the court a proposed order clearly setting forth its
claim for damages.
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