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DUNKIN' DONUTS INCORPORATED v. N.A.S.T. INC.

United States District Court, N.D. Illinois, Eastern Division


November 9, 2005.

DUNKIN' DONUTS INCORPORATED, Plaintiff,
v.
N.A.S.T., INC., et al., Defendants.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM ORDER

Counsel for Dunkin' Donuts Incorporated ("Dunkin' Donuts") have just tendered their final submission in support of their Fed. P. Civ. P. 56 motion for summary judgment on the remaining counterclaims in this action, including as part of that submission a motion for leave to exceed the 15-page limitation on briefs that this District Court's LR 5.2 (b) imposes (as tendered, the text of Dunkin' Donuts' reply memorandum, exclusive of its table of contents, runs 16 pages). Although this Court does not recall having ever denied leave to file an oversized brief and it will not do so here, in this instance it is constrained to comment a bit on counsel's filing.

Interestingly (and surprisingly given its purpose), LR 5.2 (b) sets its standards only in terms of type size and line spacing, even though a choice of fonts can make a great deal of difference in terms of cramming extra content into a specified number of pages.*fn1 Thus even if Dunkin' Donuts' memorandum had conformed strictly to the LR, the 16 pages of that document would have occupied over 23 pages if typed in this order's font.

  But the memorandum dos not conform to the LR in at least one respect. As its page 5 (Ex. 2 to this order) clearly shows, its footnotes are not in 11-point type as required. As for the text of the memorandum, it appears to be in the required 12-point type, while the line spacing appears to satisfy the 1-1/2 space requirement.

  What inspires any lawyer to consider such techniques? Is it because of some concern that if a conventionally prepared brief ran over 20 pages the judge would deny leave to file? If not, then why do it? And if so, that makes the effort problematic.

  In any event, this Court has not been unaware of the true real-world length of Dunkin' Donuts' memorandum. It nonetheless grants leave to file the oversized brief, but with this message to counsel for Dunkin' Donuts. EXHIBIT 1

  Counsel for Dunkin' Donuts Incorporated ("Dunkin' Donuts") have just tendered their final submission in support of their Fed.R.Civ.P. 56 motion for summary judgment on the remaining counterclaims in this action, including as part of that submission a motion for leave to exceed the 15-page limitation on briefs that this District Court's LR 5.2(b) imposes (as tendered, the text of Dunkin' Donuts' reply memorandum, exclusive of its table of contents, runs 16 pages). Although this Court does not recall having ever denied leave to file an oversized brief and it will not do so here, in this instance it is constrained to comment a bit on counsel's filing.

 

First paragraph: Line spacing 1-1/2 Times New Roman font 12 point
Second paragraph: Line spacing 1-1/2 Courier font 12 point
  EXHIBIT 1 specified shop address. Exs. 1 A-D ¶¶ 1.A, 1.0, 1.1. As a result, Cherian suffered absolutely no damages with respect to his desire to remodel or relocate any of his shops.*fn2 Id.

  Cherian offers absolutely no support regarding his related claim that unidentified "[p]otential buyers, lenders and investors knew from the pending litigation that Dunkin was seeking to terminate the franchised business." Opp. at 10. Nonetheless, Cherian is correct that, in the event the Court were to enforce the termination for good cause shown, "he had no business to sell." Opp. at 10. In any event, Cherian's only "proof" that he was prevented from selling his shops improperly discloses the content of "settlement discussions" that are inadmissible under Rule 408. Cherian Aff. ¶ 22; Fed.R.Evid. 408. However, to the extent that he has "opened the door" to such settlement discussions, his own Affidavit directly contradicts his false claim that "efforts by Cherian to sell the business to a third-party would have been futile." Opp. at 10. See also Cherian Aff. ¶ 22 ("During settlement discussion, I sought approval from Dunkin for a sale of my business, but Dunkin would not approve a transfer except for an amount and under conditions that were unacceptable to me.") (emphasis added). Thus, by Cherian's own admission, Dunkin' did offer him an opportunity to sell the shops, but he voluntarily declined to sell them because he did not like the specific terms proposed. Id. It is thus undeniably false that Dunkin' "prevented Cherian from being able to relocate, remodel or sell his business" or otherwise caused him any damages. Opp. at 10.

  Cherian has done nothing but speculate about unsubstantiated "pie in the sky" projections regarding "profits that his business would have earned `but for' Dunkin's breach." Opp. at 10. Contrary to the Seventh Circuit's guidance, Cherian has "just dreamed" his damages, rather than proving them. MindGames, Inc. v. Western Publ'g Co., 218 F.3d 652, 658 (7th Cir. 2000). Indeed, instead of citing evidence, reliable data, or mathematical calculations, Cherian is content to rest on self-serving conjecture pulled completely out of thin air:

If I had been able to go forward with my relocation plans, gross sales at the satellite shops would have increased at least an additional 25 to 50 percent over the ordinary annual market increases. If I had been able to only remodel and not relocate, gross sales at the satellite shops would have increased at least 15 to 25 percent over the ordinary annual market increases.
20051109

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