Cottam v. Global Emerging Capital Group, LLC
- Lorna Schofield
- 1:16-cv-04584
- U.S. District Court · Southern District of New York
- 3
In Cottam v. Global Emerging Capital Group, Judge Schofield ordered pro se Plaintiff John Cottam to submit sworn statements on damages and waiver before trial.
Plaintiff John Cottam, who was representing himself, had to provide the required sworn witness statements and supporting documents by February 15, 2021. The defendants and the scheduled bench trial were also affected by the court’s limits on trial testimony.
What happened
In Cottam v. Global Emerging Capital Group, a bench trial on damages and the defendants’ waiver defense was scheduled for March 8, 2021. John Cottam had not filed the sworn testimony the court previously required.
The court ordered Cottam to file by February 15 a sworn statement for each witness he intended to use to prove damages or dispute waiver. Statements about damages had to explain the amount sought, how it was calculated, and the documents supporting it.
Judge Schofield also explained that Cottam’s failure to provide evidence would prevent him from receiving monetary relief, but would not automatically establish the defendants’ waiver defense. The order directed the clerk to serve it on Cottam, who was representing himself.
The detailed version
- Cottam v. Global Emerging Capital Group, LLC · No. 1:16-cv-04584
- Lorna Schofield
- Jan. 26, 2021
Background
The court stated that a bench trial on damages and the affirmative defense of waiver was scheduled to begin on March 8, 2021. In an earlier order, the court had directed the parties to file direct testimony as sworn affidavits by January 22, 2021. Plaintiff John Cottam made no such filing.
The court said the trial would be limited to cross-examination of witnesses for whom the parties had submitted direct testimony in sworn affidavits.
Damages and Waiver
The court explained that under New York law, a plaintiff seeking breach-of-contract damages must prove that the damages were caused by the defendant’s breach to a reasonable degree of certainty. Cottam therefore had to submit evidence of his damages. The court warned that failing to do so would result in an order awarding no monetary relief.
The court separately explained that waiver means voluntarily and intentionally giving up a known right. The defendant asserting waiver had the burden to provide evidence from which an intent to give up the right could reasonably be inferred. Cottam’s failure to submit evidence on waiver would not automatically establish the defense. However, if Cottam intended to call a witness, including himself, to show that he did not intend to give up a known right, he had to submit that witness’s sworn written testimony. If the defendants submitted undisputed evidence of waiver, Cottam would not succeed on his claim.
Order
Judge Lorna G. Schofield ordered Cottam to file by February 15, 2021, a sworn written statement for each witness he intended to use to prove damages, even if the only witness was Cottam himself. Each statement had to describe the damages sought, the calculation or other basis for the amount, and the documentary or other evidence supporting the amount. Necessary documents had to be attached, numbered sequentially as plaintiff’s exhibits, and identified in the testimony by exhibit number, along with an explanation of what each document was, what portion the testimony relied on, and what the document said and proved.
The court also ordered Cottam to file by February 15 a sworn written statement for any witness he intended to use to dispute waiver. The order directed the Clerk of Court to serve a copy on Cottam, who was proceeding without a lawyer. This opinion is an evidentiary and trial-related order; it does not state a final decision on damages or waiver.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.