LLC v. Ameriprise Financial, Inc., Defendant. (2026)

ORDER

INTRODUCTION

At the beginning of the second day of trial in this matter, Defendant Ameriprise Financial, Inc. (Ameriprise) renewed its motion in limine to preclude Plaintiff GreenLeaf Benefit Advisors, LLC (GreenLeaf) from offering undisclosed and inadmissible evidence of the amount, value, or calculation of its claimed damages. Specifically, Ameriprise asked the Court to reconsider its earlier denial of the motion, arguing it was prejudiced by GreenLeaf's disclosure at trial of an entirely new damages computation that was also substantively inadmissible because it was based upon an impermissible measure of damages. Based on the Court's prior rulings, the evidence at trial, and GreenLeaf's proffers, the Court granted Ameriprise's renewed motion on the record and excluded GreenLeaf's improperly disclosed, inadmissible evidence on damages.

Ameriprise then moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a), arguing that, as a matter of law, GreenLeaf could not prevail on its unjust enrichment claim because it had no admissible evidence of damages. Because no reasonable jury could determine GreenLeaf's damages based on the evidence to be admitted at trial, the Court orally granted Ameriprise's motion for judgment and informed the parties it would issue its written order fully explaining its ruling. This is that order.

FACTS

I. Pre-trial Litigation

GreenLeaf is a benefits advisory firm led by partners Ted Roofener and Robin Schmerler. Dkt. No. 97 at 16, 27-31; Dkt. No. 194. Ameriprise is a publicly-traded financial services firm headquartered in Minneapolis, Minnesota. Dkt. No. 4. In January 2023, Roofener sent Brent Sabin, Ameriprise's former Senior Vice President of Benefits & HR Operations, a proposal to perform benefits advisory work related to Ameriprise's employee insurance benefits. Roofener Decl. ¶ 2, Dkt. No. 102. The January Proposal suggested GreenLeaf conduct a request for proposals (RFP) to procure competitive bids for Ameriprise's life, accidental death and dismemberment, and long-term disability insurance. Dkt. No. 97-1 at 14. GreenLeaf offered to fund its services “by building a commission into the plan rates [i.e. the premiums] and through [s]upplemental [c]ompensation” to be “paid from an insurance carrier's general assets.” Id. The January Proposal further suggested that GreenLeaf would be eligible for such supplemental compensation by being designated Ameriprise's “Agent of Record.” Id. at 3, 14. Ameriprise did not accept the January Proposal. Roofener Decl. ¶ 3.

In May 2023, Jeff Klegon, Ameriprise's Vice President of Health & Wellness Benefits, emailed Roofener and indicated that Ameriprise was “comfortable moving forward with indicating GreenLeaf as the advisor/broker of record” and inquired as to whether there was any contractual document that he needed to review or sign. Dkt. No. 102-1 at 9-10. Roofener responded, providing Klegon with an Updated Proposal and a template Advisor of Record letter for Klegon to execute. Id. at 7-8. He also responded to Klegon's question about a signed contract, stating “I don't need any sort of signature, but an email response is fine. I always like to confirm we are on the same page about everything.” Id. at 7-8. In his Updated Proposal Roofener described GreenLeaf's compensation as: “GreenLeaf and Ameriprise will establish a mutually agreeable compensation arrangement which will likely involve supplemental compensation and/or commission arrangements.” Dkt. No. 102-2 at 9. When Klegon requested more details on this compensation structure, Roofener sent a third proposal (the Final Proposal) that included a separate “Compensation” section:

GreenLeaf shall not charge a fee to Ameriprise for any of the services outlined in the proposal. To fund these services, GreenLeaf shall establish commissions as outlined below:

• Not to exceed 1% Basic Life Insurance and Long-Term Disability

• Not to exceed 2% Optional Life, Dependent Life, VAD&D

During Phase 1, GreenLeaf may negotiate commissions and/or Supplemental Compensation to be added to the plan. However, no compensation shall be added to the plan that increases rates for Ameriprise or its employees. During the RFP process, the commissions will be part of the bidding process. Ameriprise recognizes that there is a significant amount of work in phases 1 and 2. Any compensation established in the bid process would not begin being paid to GreenLeaf until 2025. As such, Ameriprise will not prohibit GreenLeaf from collecting commissions through the rate guarantee period negotiated during the RFP.

Dkt. No. 102-3.

Klegon responded to the Final Proposal, stating that he was “aligned with the added [compensation] section/text” and that he would sign the Advisor of Record letter GreenLeaf had provided. Dkt. No. 102-1 at 3. Klegon issued the signed Advisor of Record letter effective June 1, 2023. Dkt. No. 102-4. The letter authorized GreenLeaf to “research alternative [insurance] plan designs and negotiate rates on behalf of [Ameriprise].” Id. The letter also enabled GreenLeaf to seek “supplemental” compensation and fees based on then-existing contracts between Ameriprise and its current insurance carriers, stating GreenLeaf “shall be eligible to receive earned commission, supplemental or bonus commission, and implementation, audit, or communication allowances.” Id.

GreenLeaf began its engagement by evaluating Ameriprise's then-current insurance coverage with MetLife, Roofener Decl. ¶ 11; Trial Transcript 57-72 (Tr.), Dkt. No. 221. After this evaluation, GreenLeaf began the RFP Process, during which it prepared and issued the RFP. Dkt. No. 104-1; Roofener Decl. ¶ 11; Tr. 73-90. The first round of the RFP included bids from six insurance carriers: MetLife, The Hartford, Lincoln Financial, New York Life, Prudential, and Unum. Dkt. No. 104-1 at 5; Tr. 90, 101. GreenLeaf compiled the responses from these first-round bids and communicated the results to Ameriprise. Dkt. No. 104-1; Tr. 102. Ameriprise then narrowed the list to three finalists—MetLife, The Hartford, and Unum. Tr.108-09, 236. GreenLeaf returned to these finalists, asked them to present their best and final bids, and presented those bids to Ameriprise. Dkt. No. 104-2; Tr. 108-09, 118-24, 236. Each finalist's overall estimated premium was lower than the current premiums being paid to MetLife. Dkt. No. 104-2; Tr. 236. Prior to engaging GreenLeaf to conduct the RFP, Ameriprise had been told by MetLife that renewal of its contract in 2025 would result in a premium increase, not a premium decrease. Tr. 57.

Following the completion of GreenLeaf's RFP, Klegon emailed Sabin and Sabin's boss, Kelli Hunter, to present the results of the RFP and recommend that Ameriprise accept The Hartford's insurance bid. Tr. 237-38. Hunter and Sabin concurred in Klegon's recommendation. Sabin and Klegon then met with Ameriprise's Chief Executive Officer and Chief Financial Officer to discuss the results of GreenLeaf's RFP and recommend that Ameriprise switch its employee insurance benefits to The Hartford, rather than renew with MetLife. Dkt. No. 104-6; Tr. 243-44. As a result of that discussion, leadership from Ameriprise's Enterprise Procurement and Finance departments learned of GreenLeaf's RFP and expressed concerns about the process. Dkt. No. 104-9 at 2; Tr. 253-54. Some of these concerns were raised at a meeting between GreenLeaf and Ameriprise's Enterprise Procurement department on May 30, 2024. Dkt. No. 104-11; Dkt. No. 97 at 87; Tr. 132. To resolve some of these concerns, GreenLeaf signed a nondisclosure agreement (NDA) and spoke with Ameriprise again on June 4, 2024. Dkt. No. 97-21; Dkt. No. 93-8 at 3-4. During the conversation, Roofener felt like [Ameriprise] was using this as “some sort of pretext to try and get rid of [GreenLeaf].” Dkt. No. 97 at 185. However, GreenLeaf continued to work to alleviate Ameriprise's concerns. That same day, Sabin and Klegon were told to “not respond or correspond with [GreenLeaf] until further notice” and that Roofener's emails demonstrated that Ameriprise was not on the hook to pay GreenLeaf anything for the RFP. Tr. 252.

The following day, June 5, Ameriprise leadership decided to end its relationship with GreenLeaf without compensation. Dkt. No. 104-20 at 3-4; Tr. 254-55. Sabin objected to terminating GreenLeaf without providing some compensation, arguing “I do believe they provided value that we would not be able to achieve solely in-house and we do intend to take advantage of that.” Dkt. No. 104-20 at 2-3; Tr. 259. On June 7, 2024, Ameriprise revoked GreenLeaf's status as its advisor of record. Dkt. No. 93-9; Tr. 162.

Ameriprise then conducted its own RFP. See Dkt. No 104-21. Ameriprise's RFP solicited bids from eight insurance carriers: MetLife, Prudential, Lincoln Financial, The Hartford, Unum, New York Life, Voya, and Securion. Dkt. No. 97-27 at 3. Ameriprise's RFP yielded MetLife as the lowest bidder. Id. Ameriprise accepted the MetLife bid, which resulted in substantial savings for Ameriprise compared as to both its then-current MetLife coverage and the final bids from GreenLeaf's RFP. Id. at 3-4.

A. The Complaint

In July 2024, GreenLeaf sued Ameriprise in New Jersey state court. Compl., Dkt. No. 1-2. Ameriprise timely removed the case to the United States District Court for the District of New Jersey, Notice of Removal, Dkt. No. 1, and the case was transferred to this court on March 11, 2025. Order, Dkt. No. 32 (Transfer Order). GreenLeaf brought claims for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) unjust enrichment; (4) quantum meruit; (5) conversion; (6) trade secret misappropriation; (7) fraudulent inducement; and (8) negligent misrepresentation. Compl. ¶ 122-68.

B. Summary Judgment

Ameriprise moved for summary judgment on all eight counts, Dkt. No. 89, and GreenLeaf cross-moved for summary judgment on Counts 1 through 4. Dkt. No. 94. On June 26, 2026, this Court granted in part Ameriprise's motion for summary judgment, leaving GreenLeaf's unjust enrichment claim as the only surviving claim. The Court found that a genuine and material factual dispute existed as to whether Ameriprise received a benefit from GreenLeaf's services, whether Ameriprise appreciated and knowingly accepted that benefit, whether Ameriprise retained this benefit, and whether, under the circumstances, it was inequitable for Ameriprise to retain that benefit without paying for it. Id. at 20-21. Accordingly, GreenLeaf's unjust enrichment claim survived.

C. Expert Opinion

Alongside its motion for summary judgment, Ameriprise moved to exclude the testimony of GreenLeaf's sole damages expert, Mark Parisi. Dkt. No. 81. Parisi opined that GreenLeaf sustained between $1,508,357 and $1,556,111 in lost commissions and supplemental compensation due to Ameriprise's alleged breach of contract. Dkt. No. 86 at 5, 15. These commissions and supplemental compensation were to be paid by the insurance carriers rather than Ameriprise. Id. at 13-14.

The Court granted Ameriprise's motion to exclude Parisi's testimony for two reasons. First, Parisi's opinion was expressly limited to damages on GreenLeaf's breach-of-contract claim, which did not survive summary judgment. Id. at 28. Second, Parisi's calculated damages were speculative and irrelevant. Id. at 28-29. Parisi calculated GreenLeaf's damages using revenue GreenLeaf would have received based on two bids that GreenLeaf acknowledged Ameriprise never accepted, nor had any obligation to accept under the Final Proposal. Id. at 28-29; Dkt. No. 86 at 5. For these reasons, the Court concluded, even if GreenLeaf's breach-of-contract claim had survived summary judgment, Parisi's damages opinion would “not assist the trier of fact in resolving a fact or claim in issue,” and excluded it under Federal Rule of Evidence 702(a). Dkt. 153 at 29. Following summary judgment and the exclusion of Parisi's opinion, GreenLeaf did not amend its initial disclosures or its discovery responses, or seek leave to disclose a new expert opinion on damages.

D. Jury Trial Request

Faced with an excluded contract damages calculation, but a surviving unjust-enrichment claim, the Court ordered the parties to submit memoranda of points and authorities as to whether GreenLeaf's unjust enrichment claim was triable by a jury. Id. at 21 n.6; Dkt. No. 154. GreenLeaf argued that its unjust enrichment claim “must be tried to a jury.” Dkt. No. 157. Applying the Seventh Amendment analysis recognized by the Supreme Court in Tull v. United States, 481 U.S. 412, 417-18 (1987), GreenLeaf asserted that its unjust enrichment claim was most analogous to the cause of action for indebitatus assumpsit, in which a party attempts, “to recover the fair market value of goods or services conferred on the defendant.” Id. at 13-15 (quoting U.S. v. Applied Pharmacy Consultants, Inc., 182 F.3d 603, 606 (8th Cir. 1999)). As to its remedy, GreenLeaf asserted it sought a purely legal remedy—“the value of the benefits received by Ameriprise through [Greenleaf's] RFP”—rather than the “type of restitutionary relief that has previously been found equitable, such as disgorgement of improperly obtained profits.” Id. at 5, 15-17. Based on these arguments, the Court found GreenLeaf had a right to a jury trial on its legal claim for damages that it had described as the value of the services (i.e. the RFP) provided. The Court determined therefore that the proper measure of damages to be submitted to the jury was the “reasonable (i.e. market) value of the RFP services [GreenLeaf] rendered.” Dkt. No. 159.

E. Pre-Trial Motions in Limine

Ten days before trial, Ameriprise moved in limine ¹ to preclude GreenLeaf from offering any evidence regarding the amount, value, or calculation of its claimed damages that had not been disclosed in accordance with Federal Rules of Civil Procedure 26(a)(1)(A), (a)(3)(A), and (e)(1)(A). Dkt. Nos. 168, 169. In the alternative, Ameriprise moved in limine to limit all evidence concerning damages to that which was relevant to determining the reasonable market value of the RFP services rendered by GreenLeaf. Dkt. Nos. 171, 172. The Court reserved its ruling on both motions until after hearing oral arguments before jury selection on the first day of trial. Dkt. No. 215.

The morning of trial, the Court delivered a statement to focus the parties’ arguments. Dkt. No. 224. The Court reiterated that the proper measure of damages on GreenLeaf's unjust enrichment claim was the reasonable market value of the services it had rendered to Ameriprise. Id. at 1-2. The Court reminded the parties that this remedy is what GreenLeaf had argued established its right to a jury trial under the Seventh Amendment. As such, GreenLeaf could not now argue it was entitled to an equitable remedy of disgorgement (e.g. the value that Ameriprise derived from the RFP), as distinct from legal damages for the fair market value of an RFP. Id. at 3.

At oral argument, the Court first addressed Ameriprise's alternative motion in limine seeking to limit all damages evidence to that which tended to establish the reasonable market value of the services GreenLeaf provided to Ameriprise. Motion Hearing (Mot. Hr.), Dkt. No. 226 at 1-8. GreenLeaf's counsel objected to the Court's determination that this was the proper measure of damages, arguing that GreenLeaf's expected commissions from insurers were indicative of the value of its RFP services. Id. at 4-6. The Court granted Ameriprise's motion, concluding that evidence of the amount of GreenLeaf's commissions was irrelevant for two reasons: (1) it constituted (by GreenLeaf's own expert's analysis) an expectation damage, a breach of contract measure of damages that did not apply in this case; and (2) these commissions did not measure the market value of the RFP services, but rather measured the value—to the successful RFP bidder—of gaining Ameriprise's insurance business.² Id. at 7-8; Dkt. No. 217 at 6.

Following this exclusion, the Court inquired as to whether GreenLeaf had any evidence to put on at trial to establish the market value of its RFP. Mot. Hr. 8 (“Do you have evidence to put into the record – or at the trial, I should say, of the market value of the RFP?”). GreenLeaf's counsel responded that it had “the amounts on the bids,” “the historical pricing,” and testimony from GreenLeaf's principals about the value of these services. Id. at 8. The Court also asked GreenLeaf to articulate the damages amount it was going to present to the jury. Id. at 9 (“What is the amount that you are going to claim as damages to the jury? Do you have a specific figure or are you giving a range?”). GreenLeaf's counsel could not provide a specific number but stated it would be able to determine this range in the next few minutes. Id. (“I would ask that I go back ․ to ․ discuss with my clients based on the rulings this morning ․ to give you specifics.”).

Next, the Court addressed Ameriprise's motion to preclude all untimely disclosed damages evidence. Id. at 9-23. Ameriprise argued that GreenLeaf failed to identify any damages witnesses or a computation of damages in its original Rule 26 disclosures, failed to provide any calculation of its alleged damages in its discovery responses,³ and failed to supplement or amend its disclosures or discovery responses to provide such a calculation. Id. at 9-13. Ameriprise argued it was severely prejudiced if required to defend against a damages theory and computation first disclosed to them “on the eve of trial.” Id. at 14-15. GreenLeaf argued Ameriprise had ample opportunity to compel discovery if it had an issue with GreenLeaf's disclosures. Further, GreenLeaf argued, Ameriprise was not prejudiced because the “numbers have been talked about,” and the witnesses who will testify have been deposed. Id. at 17-19. Based on these arguments, the Court denied Ameriprise's motion to exclude GreenLeaf's undisclosed damages evidence on the grounds that GreenLeaf had arguably disclosed its category of damages, the parties had sufficient time and opportunity to depose GreenLeaf's witnesses and inquire about compensation, and, according to GreenLeaf, the “numbers [had] been talked about.” Mot. Hr. 19; Dkt. No. 217 at 2-3.

After the jury was impaneled but before testimony was taken, the Court again asked GreenLeaf to articulate the damages amount it planned to present to the jury. Dkt. No. 230 at 3-4. GreenLeaf responded that it would ask for damages in a range between $1.5 and $2.5 million. Id. (“[I]t will be 1.5 to 2.5 million.”).

II. Trial Testimony 4

A. Agnes Nines

Agnes Nines had worked in the insurance benefits industry for over 40 years, during which she was involved in hundreds of RFPs. Nines is the practice leader for life, disability, and leave of absence benefits at GreenLeaf, Tr. 51, and was the lead consultant assigned to the Ameriprise team. Id. at 51-53, 74. In that role she evaluated Ameriprise's then-current coverage with MetLife and oversaw GreenLeaf's RFP. Id. at 57-58, 166. According to Nines, her review of MetLife's then-current coverage took between 20 to 25 percent of her time for two months and “at least 50 percent” of her time during the two and half weeks following receipt of initial RFP bids. Id. at 72, 101, 179. She also acknowledged that before working for GreenLeaf she had conducted RFPs for a flat fee. Id. at 177. In this case, GreenLeaf expected to be compensated by commissions paid to GreenLeaf from the successful bidder in the RFP, not Ameriprise. Id. at 165, 178-79, 203-04. Nines was not asked and did not testify to her salary at GreenLeaf or an hourly rate for her services there.

B. Jeff Klegon

Jeff Klegon is the Vice President of Health and Well-being Benefits at Ameriprise. Id. at 213. He testified that GreenLeaf was engaged to evaluate Ameriprise's current life insurance rates and conduct an RFP. Id. at 215-16. He understood GreenLeaf was to be compensated by one of the insurance carriers (i.e. the winning bidder). Id. at 271-72. GreenLeaf's work would not directly impact Ameriprise's total insurance costs. Id. at 225.

C. Brent Sabin

Brent Sabin is the former Senior Vice President of Benefits and HR Operations at Ameriprise. Id. at 231. He testified that GreenLeaf's work for Ameriprise spanned approximately one year. Id. at 235. He described the scope of their RFP services, which included soliciting bids and facilitating finalist meetings. Id. at 235-36.

III. Renewed Motion in Limine

On the morning of the second day of trial, Ameriprise's counsel asked the Court to reconsider its denial of the motion in limine to exclude any evidence related to GreenLeaf's damages computation disclosed for the first time the day before. Id. at 146. Ameriprise had heard GreenLeaf's damages computation of $1.5 to $2.5 million for “the very first time” after “the jury was already in place,” which, it argued, is a direct violation of Rule 26 and unduly prejudicial. Id. at 146-49. Had that number “ever been disclosed in a timely fashion,” Ameriprise argued, “discovery would have taken a very different route.” Id. at 147. Ameriprise would have deposed all witnesses who would testify to this computation and would have retained an expert witness to opine on the typical cost for a third-party benefit consultant to conduct an RFP. Id. GreenLeaf opposed Ameriprise's request for reconsideration, reiterating that it had disclosed that Roofener and Nines would testify “to the benefit resulting from GreenLeaf services,” including how GreenLeaf priced its RFPs based on commissions. Id. at 150. Based on the arguments, the Court granted Ameriprise's renewed motion in limine, excluding GreenLeaf's damages figure of $1.5 to $2.5 million. Id. at 276.

Ameriprise then moved for judgment as a matter of law under Rule 50(a)(1)(A) of the Federal Rules of Civil Procedure, arguing there was no competent, admissible evidence GreenLeaf could present to establish its damages. Id. at 293-95. The Court asked GreenLeaf's counsel to identify any evidence of damages it could offer that (1) had been properly disclosed and (2) was admissible on the proper measure of damages—the reasonable (i.e. market) value of an RFP. Id. at 282-83. GreenLeaf made an offer of proof to introduce (1) Parisi's previously excluded damages report; (2) Roofener's testimony on the time and labor required to carry out the RFP, the difficulty of the RFP, and the result of the RFP; (3) evidence of the commissions and supplemental compensation that GreenLeaf had received from MetLife during the RFP,⁵ and would have received from MetLife resulting from Ameriprise's RFP; and (4) evidence of Ameriprise's premium savings as a result of its RFP. Id. at 283-296.

The Court orally granted Ameriprise's motion for judgment as a matter of law and terminated the trial.

ANALYSIS

I. Ameriprise's Renewed Motion in Limine No. 1

Ameriprise's motion for judgment as a matter of law arose from the Court's decision to grant Ameriprise's motion in limine to exclude GreenLeaf's damages computation disclosed for the first time during trial. Therefore, to understand the Court's ruling on Ameriprise's JMOL it is first necessary to understand its ruling on the motion in limine.

A. Violations of Rule 26

Pursuant to Federal Rule of Civil Procedure 26, parties must disclose, inter alia, “a computation of each category of damages claimed,” and “make available for inspection and copying” any documents or other evidentiary material upon which this computation is based.” Fed. R. Civ. P. 26(a)(1)(A)(iii). Rule 26(e)(1)(A) further requires a party to supplement or correct its disclosures and discovery responses “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect.”

Neither in its initial disclosures nor at any time prior to trial did GreenLeaf disclose the “$1.5 to $2.5” million damages calculation that it sought to present to the jury at trial; nor had it ever disclosed how it arrived at this calculation. During discovery, Ameriprise served an interrogatory that asked for a calculation of “all damages” GreenLeaf allegedly “suffered as a result of any action or inaction of Ameriprise.” Dkt. No. 180-1 at 10. GreenLeaf objected to this interrogatory as “premature” and reiterated the categories of damages it was seeking:

compensatory damages, incidental damages, and consequential damages based on the lost value of the work performed by GreenLeaf for Ameriprise as part of the request for proposal process, together with revenue derived as the Advisor of Record for Ameriprise and other commissions as well as the anticipated value resulting from the potential reputational damage GreenLeaf has sustained as a result of Ameriprise's actions.

Id. at 10-11. During discovery Ameriprise also requested GreenLeaf produce all documents establishing GreenLeaf's damages. Id. at 23. GreenLeaf objected to this request as “premature” and stated that it was “not in possession of responsive documents.” Id. Over the next two years of litigation, GreenLeaf did not supplement either response.

GreenLeaf instead relied on its damages expert, Parisi, to provide a computation of its expectancy damages under its breach-of-contract theory. Dkt. No. 153 at 28 (“GreenLeaf does not dispute that Mr. Parisi's expert testimony is limited to damages on its breach-of-contract claim.”). When the Court excluded Parisi's testimony, GreenLeaf was left with no disclosed computation of its claimed unjust enrichment damages and little to no evidence upon which such a computation could be based.⁶ In short, prior to trial, GreenLeaf never disclosed a computation of damages for the unjust enrichment claim it pursued at trial. Thus, its disclosures were incomplete in a material respect. See Fed. R. Civ. P. 26(e)(1)(A).

This deficiency became even more apparent following the Court's August 2026 Jury Trial Order. Dkt. No. 159. In its Order, the Court held that the appropriate measure of damages in a jury trial on GreenLeaf's unjust enrichment claim was the reasonable market value of the RFP services GreenLeaf provided to Ameriprise—not GreenLeaf's expectancy, not disgorgement, and not recovery of specifically identified funds. Dkt. No. 159 at 4. Faced with this clearly defined measure of damages, GreenLeaf still did not supplement its disclosures or its discovery responses to provide a computation of this measure of damages or state how it intended to prove its damages. It was not until a jury was impaneled and GreenLeaf was ordered to do so that GreenLeaf disclosed its “$1.5 to $2.5” million damages computation. Dkt. No. 230 at 3. Even then, the Court had to repeatedly question GreenLeaf on the basis for said computation:

COURT: The problem – I'll be candid. [Ameriprise's] motion is well taken. They are in a position of having to respond to $2.5 million, or [a] 1.5 to 2.5 million dollar damage figure that they haven't heard before, and so far I have let that go forward. But how is Mr. Roofener going to put that evidence in? ․

The commissions are not coming in to prove that. I understand, you have preserved that issue, and you are more than welcome to bring that to the Eighth Circuit. But the question now is, is Mr. Roofener just going to get on the stand and say, I would charge $1.5 million to Ameriprise to run an RFP? ․

Tr. 150-53. Greenleaf's failure to timely disclose its computation of unjust-enrichment damages and its subsequent failure to supplement its disclosures and discovery response to reflect this computation violated Rule 26(a)(1)(A)(iii) and Rule 26(e)(1)(A).

B. Exclusion under Rule 37(c)(1)

The consequences of a party's failure to abide by its disclosure and supplementation obligations under Rule 26(a) or (e) can be severe. “When a party fails to provide information or identify a witness in compliance with Rule 26(a) or (e), the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case.” Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (citing Fed. R. Civ. P. 37(c)(1); Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1008 (8th Cir. 1998) (“[F]ailure to disclose in a timely manner is equivalent to failure to disclose.”)). Pursuant to Federal Rule of Civil Procedure 37(c)(1), the court may exclude undisclosed or belatedly disclosed information or testimony “as a self-executing sanction unless the party's failure to comply is substantially justified or harmless.” See id. (citing Fed. R. Civ. P. 37(c)(1)).

The Eighth Circuit has identified four factors that courts should consider in deciding whether a failure to comply is substantially justified or harmless: (1) the importance of the excluded material; (2) the reason for noncompliance; (3) the potential surprise and prejudice to the opposing party if the material is used at trial; and (4) the degree to which the use of the material would disrupt the order and efficiency of trial. Academy Bank, N.A. v. AmGuard Ins. Co., 116 F.4th 768, 783 (8th Cir. 2024). Courts also may consider the availability of a continuance to cure any prejudice to the opposing party. Id. (citing Carmody v. Kan. City Bd. of Police Comm'rs, 713 F.3d 401, 405 (8th Cir. 2013)).

GreenLeaf's late disclosure was neither substantially justified nor harmless. First, it is undisputed that GreenLeaf's damages computation was critically important to both parties’ cases. But “[n]othing in the language of Rule 37(c)(1) suggests that if the untimely disclosed evidence is ‘crucial,’ a lesser sanction than exclusion should follow, and that has not been the view or uniform practice of the Eighth Circuit Court of Appeals.” Petrone v. Werner Enters., Inc., Nos. 8:11-cv-401, 8:12-cv-307, 2023 WL 144225, at *12 (D. Neb. Jan. 10, 2023), affirmed by Petrone v. Werner Enters., Inc., 105 F.4th 1043 (8th Cir. 2024). Rather, exclusion of such evidence is the default sanction under Rule 37(c)(1). Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d 698, 705 (8th Cir. 2018).

Second, GreenLeaf did not provide a compelling reason for its noncompliance. The Court's ruling on summary judgment dismissed GreenLeaf's breach-of-contract claim and excluded its damages expert, Parisi. Dkt. No. 153 at 14-20, 28-29. This ruling necessarily changed the damages landscape. But at that time, GreenLeaf did not request a continuance of the discovery or trial deadlines nor supplement its disclosures or its discovery responses to provide a new damages computation. On the eve of trial, GreenLeaf defended its failure to supplement by arguing that it would “rely on testimony of its representatives to establish damages, all of whom were already disclosed as fact witnesses.” Dkt. No. 202 at 6-7. The problem with this response is two-fold. First, GreenLeaf waited to disclose its intent to rely on its fact witnesses until close to 5:00 pm the Thursday before trial. Dkt. No. 202. And even then, GreenLeaf failed to disclose any actual damages computation until after the jury was impaneled and it was ordered to do so by the Court. Dkt. No. 230 at 3; see Tr. 146-47. At that point, the time for calculating damages and disclosing the basis for this calculation had long passed. See US Salt, Inc. v. Broken Arrow Inc., No. 07-1988, 2008 WL 2277602, at *4 (D. Minn. May 30, 2008) (quoting Multimatic, Inc. v. Faurecia Interior Sys. USA, Inc., No.05-60120, 2007 WL 627874, at *7 (E.D. Mich. Feb. 26, 2007) (dismissing a claim because a party failed to disclose an estimate or calculation of its damages until summary judgment)). Accordingly, there is no substantial justification for GreenLeaf's failure to disclose its damages computation.

Third, it would have been highly prejudicial to Ameriprise if GreenLeaf had been allowed to introduce previously undisclosed evidence to prove its damages. Again, GreenLeaf withheld its “$1.5 to $ 2.5 million” computation—itself almost a million dollars more than the breach-of-contract damages calculated by Parisi—until midway through the first day of trial. See Tr. 146-47; Dkt. No. 86 at 5. More problematic, GreenLeaf did not disclose the basis for this multi-million-dollar range until ordered to do so by the Court. Dkt. No. 230 at 3. Ameriprise had no opportunity to retain an expert to opine on the reasonableness of this damages model or otherwise discover potential rebuttal evidence. Had Ameriprise been afforded the opportunity to develop such evidence, it claims, it would have presented expert testimony on the market price for an RFP of this nature. Simply put, Ameriprise would have been significantly prejudiced had it been required to extemporaneously defend itself against this previously undisclosed damages model.⁷ See Vanderberg, 906 F.3d at 704 (affirming the district court's exclusion of previously undisclosed evidence because the defendant would have been significantly prejudiced by its inclusion); US Salt, Inc., 2008 WL 2277602, at *4-5 (finding it highly prejudicial to defendant if undisclosed evidence that was presented “unexpectedly on the eve of trial” was allowed at trial given that defendant did not have a “full opportunity to test the reliability of this evidence through discovery and expert analysis”); Lewis v. City of Burnsville, No. 19-117, 2020 WL 3496990, at *4 (D. Minn. Jun. 29, 2020) (“[I]f Plaintiff intends to ask the jury for a specific dollar amount of such damages at trial—or to suggest any figures, or possible ranges—Plaintiff is required to provide it to Defendants along with the basis for that figure.”).

Fourth, GreenLeaf's untimely disclosure was not harmless with respect to the Court's trial schedule. See Wegener, 527 F.3d at 693. In fact, GreenLeaf's untimely disclosure did disrupt the order and efficiency of the trial. It caused delays throughout the trial as the Court repeatedly had to prompt GreenLeaf to fully articulate its undisclosed damages computation, the theory on which it was based and the evidentiary support underlying it. See Dkt. No. 230 at 3-4; Tr. 146-61, 275-98. A continuance of the trial was not realistic or practical as it would have imposed a substantial burden on the court and the parties. Admitting the delayed damages computation would have prolonged the litigation, required reopening discovery, and granting a continuance of several months for Ameriprise to find and retain an expert witness to opine on the reasonable market value of GreenLeaf's RFP services. This continuance would have greatly disrupted the court's trial calendar and caused the parties further delay and expense.

Under these circumstances, the only appropriate sanction was the exclusion of all evidence or testimony supporting GreenLeaf's alleged $1.5 to $2.5 million unjust enrichment damages. See Petrone, 105 F.4th at 1057-58 (affirming the district court's decision to exclude an untimely disclosed expert report even though it was “required for Plaintiff to prove damages”); Carmody, 713 F.3d at 405-06 (affirming the district court's decision to strike affidavits regarding plaintiffs’ damages computation even when “tantamount to dismissal”); Mgmt. Reg., Inc. v. A.W. Cos., No. 0:17-cv-5009, 2020 WL 6121450, at *6 (D. Minn. Jul. 29, 2020) (concluding that a party's failure to identify any documents on which its damages claims were based justified the preclusion under Rule 37(c)(1) of any documentary proof in support of this damages claim); Grandoe Corp. v. Gander Mountain Co., No. 11-cv-0947, 2013 WL 3353927, at *1 (D. Minn. Jul. 3, 2013) (noting that the court precluded plaintiff from introducing evidence of over $600,000 in incidental damages that was inexplicably not disclosed during discovery); US Salt, Inc., 2008 WL 2277602, at *4-5 (excluding all evidence of an untimely disclosed damages claim even though this amounted to dismissal with prejudice).

Accordingly, the court prohibited GreenLeaf from introducing evidence or testimony in support of its previously undisclosed claim that the reasonable market value of its RFP services is between $1.5 and $2.5 million.

C. Evidence of Expected Commissions and Supplemental Compensation

Even if GreenLeaf had properly disclosed its late-breaking damages computation and/or even if the court had not excluded it under Rule 37(c)(1), the evidence was inadmissible for another, perhaps more fundamental, reason.

Independent of the exclusion of this evidence pursuant to Rule 37(c)(1), GreenLeaf's proposed damages computation was contrary to the proper measure of damages in this case—the reasonable market value of the RFP services it provided to Ameriprise. GreenLeaf's evidence for that computation was inadmissible to prove the value of GreenLeaf's services.

1. Measure of Damages

To begin, the parties acknowledge that, under Minnesota law, “[t]he measure of relief for an unjust enrichment claim ‘is based on what [Ameriprise] allegedly has received, not on what [GreenLeaf] has lost.’ ” Herlache v. Rucks, 990 N.W.2d 443, 450 (Minn. 2023) (quoting Georgopolis v. George, 54 N.W.2d 137, 142 (Minn. 1952)). In other words, it is “the benefit that [Ameriprise received that] is the measure of relief for an unjust enrichment claim.” Id. Thus, the commissions GreenLeaf expected to receive from the winning bidder in the RFP cannot be the measure of relief on GreenLeaf's unjust enrichment claim because those commissions measure what GreenLeaf lost, not what Ameriprise received. The Court excluded evidence of these commissions. Dkt. No. 217 at 3-7.

GreenLeaf, in pressing this computation of its damages, argued that this commission structure is standard in the industry; thus, it asserted, the commissions do measure the value to Ameriprise of its services. Tr. 151-53, 157-59. There are several flaws in this argument. First and foremost, the commissions the winning bidder in the RFP was willing to pay GreenLeaf does not measure the value to Ameriprise of the RFP services it got, they measure what GreenLeaf lost. To the extent the commissions measure the value of what anyone received, they measure the value to the insurance carrier of winning Ameriprise's book of business in the RFP process. The commissions are not a proper measure of relief for unjust enrichment under Minnesota law as they do not measure what the enriched party—Ameriprise—received.

But even assuming these commissions are at all probative of the value to Ameriprise of the RFP services it obtained from GreenLeaf, this evidence would be (and was) excluded under Fed. R. Evid. 403. Dtk. No. 217 at 3-7. Evidence of GreenLeaf's commission introduced either as a proxy for, or indicator of, the market value of the RFP services that Ameriprise received would have confused the jury as to the proper measure of relief under Minnesota law.

Within the restriction that unjust enrichment damages must measure what Ameriprise received rather than what GreenLeaf lost, a court applying Minnesota law has broad discretion to shape its remedy to do justice in the specific facts of each case. Id. at 451. Indeed, the Minnesota Supreme Court has expressly cautioned “against restricting the broad scope of the unjust enrichment remedy, given that the whole point of the action [is] ‘to relieve against the too narrow procedure of law.’ ” Id. (quoting Seastrand v. D.A. Foley & Co., 175 N.W. 117, 119 (Minn. 1919)). Courts in Minnesota have exercised this discretion to choose a remedy that fits the circumstances of the case. Those remedies may include disgorgement of profits, id.; Nelson v. Tripp, 118 N.W.2d 805, 808 (Minn. 1962) (“[A]n equitable remedy to compel one unjustly enriched at the expense of another [is] to disgorge․”), or payment for the value of the services provided to the unjustly enriched party. See In re Petition for Distribution of Attorney's Fees between Stowman Law Firm, P.A., 870 N.W.2d 755, 759 n.2, 761 (Minn. 2015); Holman v. CPT Corp., 457 N.W.2d 740, 745 (Minn. Ct. App. 1990) (noting that “a party may recover the reasonable value of his services” under an unjust enrichment claim); Toretta v. Lachinski, No. A12-0779, 2013 WL 491523, at *10 (Minn. Ct. App. Feb. 11, 2013) (affirming district court's decision to award the plaintiff damages for unjust enrichment based on the value of the services that the plaintiff provided).

This Court did precisely what Minnesota law requires—it fashioned the unjust enrichment remedy to the specific circumstance of this case. In this case, GreenLeaf demanded a jury trial, which necessarily determined the nature of the remedy it could seek. See Tull, 481 U.S. at 417-18 (articulating the two-step inquiry to determine whether a party enjoys a right to a jury trial under the Seventh Amendment).⁸ Arguing that its case must be tried to a jury, GreenLeaf expressly defined the nature of, and remedy for, its unjust enrichment claim. GreenLeaf argued its unjust enrichment claim was most analogous to the common law cause of action for indebitatus assumspit. Dkt. No. 157 at 13-15. GreenLeaf, quoting Eighth Circuit precedent, argued in its brief:

[U]njust enrichment is most analogous to a cause of action for indebitatus assumpsit. This cause of action allowed for recovery in a case in which there was no express contract, ‘but rather simply a claim for money had and received, or goods sold and delivered, under which you were attempting to recover the fair market value of goods or services conferred on the defendant.’ U.S. v. Applied Pharmacy Consultants, Inc., 182 F.3d 603, 606 (8th Cir. 1999); see Boydstun v. Hackney Land Credit Co., 145 Minn. 392, 393 (Minn. 1920) (describing a demand for payment for services rendered as being ‘substantially the form of a common count in indebitatus assumpsit for services rendered.’).

Id. at 13 (emphasis supplied). Because GreenLeaf had provided services to Ameriprise for which it had not been paid, the Court found GreenLeaf's analogy appropriate. Dkt. No. 159 at 4.

GreenLeaf further argued that the remedy it sought was the recovery of legal damages “for the value of the services received by Ameriprise.” Dkt. No. 157 at 15, 17 (“[I]t is a simple claim to recover general monetary damages.”). GreenLeaf's services were the RFP process it undertook. Recovering the market value of those services is what made this case analogous to an action of indebitatus assumpsit. Moreover, GreenLeaf expressly disavowed any type of restitutionary relief, such as disgorgement, id. at 17, or the recovery of specific funds, such as its “calculated commission amounts,” id. at 16. Based on these arguments, the Court found GreenLeaf had a right to a jury trial and held that the appropriate measure of damages was the “reasonable (i.e. market) value of the RFP services rendered.” Dkt. No. 159 at 4-6.

2. Relevance of Commissions and Supplemental Compensation

Despite these rulings, GreenLeaf attempted at trial to establish the reasonable market value of its services with evidence of the amount of its expected commissions and supplemental compensation, as well as evidence of Ameriprise's premium savings. Mot. Hr. 19 (“This scenario was based on commissions.”); Tr. 153 (“[GreenLeaf] work[s] on a commission basis for RFPs. And that's what [Roofener's] testimony is going to be.”), 287-88 (addressing premium savings), 290 (“I would like to offer that as proof of ․ supplemental compensation ․ I would also offer into evidence the commissions that were agreed to that we've discussed.”). As indicated, the commission evidence is directed to a category of damages—what GreenLeaf lost rather than what Ameriprise received—that is not recoverable in an unjust enrichment action under Minnesota law. It was therefore irrelevant and inadmissible under Federal Rules of Evidence 401 and 402. See Fair Isaac Corp. v. Fed. Ins. Co., No. 16-cv-1054, 2024 WL 2302330, at *1 (D. Minn. May 21, 2024); United States v. Cameron-Ehlen Grp., Inc., No. 13-cv-3003, 2023 WL 36174, at *5 (D. Minn. Jan. 4, 2023). But even if marginally relevant, the evidence was inadmissible because “its probative value [was] substantially outweighed by a danger of unfair prejudice, confusing the issues, [and] misleading the jury.” Fed. R. Evid. 403.

GreenLeaf also sought to introduce evidence that its RFP reduced Ameriprise's insurance premium payments (i.e., premium savings), either directly or as a result of a netting out GreenLeaf's expected commission. Dkt. No. 203 at 8; Tr. 287-88. But evidence of Ameriprise's premium savings—and recovering that amount—is a remedy of disgorgement. Ameriprise would be required to disgorge all or a portion of its premium savings garnered as a result of GreenLeaf's RFP. In demanding a jury trial rather than a bench trial, GreenLeaf expressly stated it was not seeking “the type of restitutionary relief that has previously been found equitable, such as disgorgement of improperly obtained profits.” Dkt. No. 157 at 17. Evidence proving the amount of Ameriprise's allegedly ill-gotten gains in the form of premiums saved is disgorgement; not legal damages. The evidence was irrelevant to establishing the reasonable market value of GreenLeaf's services and therefore inadmissible. Fed. R. Evid. 401; Fed. R. Evid. 402. As with GreenLeaf's lost commissions, even if Ameriprise's premium savings were at all probative of the value to Ameriprise of GreenLeaf's RFP, the evidence would be (and was) excluded under Federal Rule of Evidence 403.

In short, GreenLeaf demanded a jury trial, expressly restricting itself to a legal damages remedy measured by the market value of an RFP. It could not have its cake and eat it too; it could not demand a jury trial, then seek a remedy in equity. It could not introduce irrelevant and prejudicial evidence as a backdoor way of obtaining either its excluded breach-of-contract damages or disgorgement.

For these reasons, the Court granted Ameriprise's renewed motion in limine and excluded all evidence related to GreenLeaf's irrelevant and improperly disclosed damages computation.

II. Judgment as a Matter of Law

Following the exclusion of GreenLeaf's damages evidence, Ameriprise moved for judgment as a matter of law (JMOL). Tr. 293-94. The Court granted Ameriprise's JMOL motion.

A. Rule 50(a) Standard

“If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue,” the court may grant a motion for JMOL against the party on a claim that, “under the controlling law, can be maintained ․ only with a favorable finding on that issue.” Fed. R. Civ. P. 50(a)(1). In applying this standard, courts must “draw all reasonable inferences in favor of the nonmoving party without making credibility assessments or weighing the evidence.” Arabian Agriculture Servs. Co. v. Chief Indus., Inc., 309 F.3d 479, 482 (8th Cir. 2002) (quotation omitted). “A reasonable inference is one ‘which may be drawn from the evidence without resort to speculation.’ ” Id. (quoting Fought v. Hayes Wheels Int'l, Inc., 101 F.3d 1275, 1277 (8th Cir. 1996) (quotation omitted)). Accordingly, JMOL is warranted if the record “contains no proof beyond speculation to support a verdict.” Id. (quotation omitted); Schooley v. Orkin Extermination, Co., 502 F.3d 759, 764 (8th Cir. 2007) (“Judgment as a matter of law is only appropriate where the evidence adduced at trial is entirely insufficient to support the verdict.”); see also e.g., SL Montevideo Tech., Inc. v. Eaton Aerospace, LLC, 491 F.3d 350, 354-55 (8th Cir. 2007) (affirming district court's pre-verdict grant of JMOL); Sip-Top, Inc. v. Ekco Grp., Inc., 86 F.3d 827, 830 (8th Cir. 1996) (same).

B. Fully Heard

Prior to granting a motion for JMOL, a party must be “fully heard” on a dispositive issue. See Fed. R. Civ. P. 50(a)(1). While it is typical to wait until a party has concluded its case-in-chief to ensure that a party has been fully heard, the Rule expressly states that a JMOL motion “may be heard at any time before the case is submitted to the jury.” Fed. R. Civ. P. 50(a)(2) (emphasis added). In fact, the Eighth Circuit has held that courts have authority to enter JMOL after opening statements if this statement embraces “all operative facts expected to be proven at trial” and yet are “insufficient to sustain a claim for relief.” Morfeld v. Kehm, 803 F.2d 1452, 1454 (8th Cir. 1986); Knapp v. Wabash R.R. Co., 375 F.2d 983 (8th Cir. 1967).

The propriety of granting a JMOL motion does not hinge on when the JMOL is granted, but rather on whether a party has been “fully heard” on an essential issue prior to its granting. See e.g., Falco Lime, Inc. v. Tide Towing Co., 29 F.3d 362, 365-66 (8th Cir. 1994) (affirming grant of JMOL prior to the close of the plaintiff's case-in-chief after plaintiff's own witness made admissions under oath that resolved any questions of fact); Greene v. Potter, 557 F.3d 765, 768, 772 (7th Cir. 2009) (affirming a grant of JMOL prior to the close of the plaintiff's case-in-chief when the plaintiff's own testimony conclusively disproved her own case); Echeverria v. Chevron USA Inc., 391 F.3d 607, 611-12 (5th Cir. 2004) (reversing a grant of JMOL prior to the close of the plaintiff's case-in-chief because the plaintiff was not offered a reasonable opportunity to be fully heard through the admission of testimony and other relevant evidence); Jackson v. Quanex Corp., 191 F.3d 647, 657 (6th Cir. 1999) (same). This is consistent with the Advisory Committee's explanation that early action by the court in entering JMOL “is appropriate when economy and expedition will be served,” but not before “a party has completed a presentation on a fact essential to [its] case.” Fed. R. Civ. P. 50(a) advisory committee notes to 1991 amendment.

1. Unjust Enrichment Claim

To establish an unjust enrichment claim under Minnesota law, GreenLeaf must demonstrate: “(1) a benefit conferred; (2) the defendant's appreciation and knowing acceptance of the benefit; and (3) the defendant's acceptance and retention of the benefit under such circumstances that it would be inequitable for him to retain it without paying it.” Cambria Co. v. Disney Worldwide Servs., Inc., No. 22-cv-459, 2025 WL 786509, at *5 (D. Minn. Mar. 12, 2025) (quoting Christensen L. Off., PLLC v. Nguoambe, No. A17-1917, 2018 WL 2293423, at *6 (Minn. Ct. App. May 21, 2018)); see also Herlache, 990 N.W.2d at 450 (“Unjust enrichment is an equitable remedy that allows a plaintiff to recover a benefit conferred upon a defendant when retention of the benefit is not legally justifiable.”). When seeking to recover under unjust enrichment, the plaintiff must establish the value of “what the person allegedly enriched has received.” Id. (quoting Georgopolis, 54 N.W.2d at 147). Where, as here, the plaintiff requests a legal remedy, the plaintiff must establish the reasonable market value of the services it rendered. See Toretta, 2013 WL 491523, at *10-11. If a reasonable jury does not have “a legally sufficient evidentiary basis” to determine a plaintiff's damages, JMOL is appropriate. Fed. R. Civ. P. 50(a)(1).

Because GreenLeaf had no admissible evidence of damages, judgment as a matter of law was proper.

2. Apprised of the importance of damages

GreenLeaf was fully heard on the issue of damages. First, GreenLeaf was repeatedly apprised of the need to prove the reasonable market value of the RFP it performed for Ameriprise. At the summary judgment hearing, the Court asked GreenLeaf how it intended to prove damages under its unjust enrichment theory. Dkt. No. 220 at 75. The importance of this issue came to the fore again when Ameriprise filed its motions in limine seeking to exclude all of GreenLeaf's undisclosed damages, or in the alternative, to confine GreenLeaf to evidence relevant to the proper measure of damages at trial. Dkt. No. 169; Dkt. No. 171. During oral arguments on these motions, the Court repeatedly asked GreenLeaf to articulate its damages computation, the basis for this computation, and what evidence it would use to establish this computation. See Mot. Hr. at 8 (“[T]he question at this point now is do you have ․ Do you have evidence to put into the record – or at trial, I should say, of the market value of the RFP?”), 9 (“What is the amount that you are going to claim as damages to the jury? Do you have a specific figure or are you giving a range?”), 18 (“The troubling issue or the difficult issue is your – your client is going to testify presumably that they do a flat-fee arrangement or charge for RFP services in some range, and they don't know what's coming․”); Tr. 153 (“Does [Roofener] have any testimony that they've ever priced an RFP ․ for these amounts?”). The Court's line of questioning made clear, if it was not so already, the dipositive nature of GreenLeaf's damages issue.

3. Afforded an opportunity to present evidence of damages

Second, GreenLeaf was afforded ample opportunity to present all admissible and relevant evidence bearing on the reasonable market value of the services it provided to Ameriprise. In response to Ameriprise's motions in limine, GreenLeaf identified what it intended to introduce to support its damages claim: testimony from Roofener and Nines,⁹ relevant evidence of its expected commissions, and Ameriprise's premium savings, Dkt. Nos 202, 203. During oral arguments on these motions, GreenLeaf reiterated that it would introduce evidence of the commissions it expected to receive from the insurance carrier. See e.g., Mot. Hr. 19 (“[M]y clients should be able to explain and articulate to the jury and to the Court how they get compensated․ This scenario was based on commissions.”).

After the Court excluded all evidence of expected commissions as irrelevant to the measure of damages at issue in the case, Mot. Hr. 6-8; Dkt. No. 217 at 3-6, GreenLeaf suggested it could still establish damages through testimony of Roofener and Nines regarding their historical pricing of these services. Mot. Hr. 8-9. There were several problems with this approach. First, as the Court had already concluded, GreenLeaf was prohibited from using undisclosed documentary evidence or testimony in support of its claim that the reasonable market value of the services GreenLeaf provided to Ameriprise was between $1.5 and $2.5 million. Therefore, to the extent that any of this pricing information—including flat fee structures—was previously undisclosed, it was inadmissible. Second, as GreenLeaf itself suggested, any such evidence would be highly speculative. “GreenLeaf does not do flat fee RFPS. They are strictly commission based. That's how they get compensated,” Mot. Hr. 20-21, and as such, Roofener could only testify that GreenLeaf “work[s] on a commission basis for RFPs.” Tr. 153, 150 (“You're going to hear from Roofener on things where he discusses how he prices commissions and how that factors in.”). Lastly, the Court permitted GreenLeaf to present all of Nines's testimony prior to granting Ameriprise's renewed motion in limine to exclude all undisclosed evidence. Nines did not testify to her hourly rate, the amount she had previously received as a flat fee for her RFP services performed for her prior employer, or how she would value the services she performed for Ameriprise. Her testimony, even if admissible in its entirety, provided no basis for a jury to find for GreenLeaf on the issue of damages.¹⁰

Furthermore, the Court permitted GreenLeaf's counsel to make a final offer of proof as to any admissible evidence of damages it could offer. Tr. 283-96. GreenLeaf identified Parisi's damages report, expected and paid supplemental compensation from MetLife, expected future commissions to be paid by an insurance carrier, Ameriprise's premium savings, and Roofener's testimony regarding commissions. Id. The Court had previously excluded all of this evidence as speculative, irrelevant, and not timely disclosed. Having no admissible evidence of damages—an essential element of its unjust enrichment claim to be tried to a jury—GreenLeaf could not prevail as a matter of law.

GreenLeaf's unjust enrichment claim could be maintained only with a favorable finding on the issue of damages. Because “a reasonable jury would not have a legally sufficient evidentiary basis to find for [GreenLeaf] on that issue,” Fed. R. Civ. P. 50(a)(1), Ameriprise's motion for judgement as a matter of law is GRANTED. The case is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

FOOTNOTES

1.   The parties filed several other motions in limine the details of which are not at issue here. See Dkt. Nos. 174, 177, 181, 183, 185, 187, 189.

2.   These commissions were to be paid by the successful bidder in the RFP process rather than Ameriprise. Dkt. No. 102-3; Tr. 271-72.

3.   During discovery, GreenLeaf responded to Ameriprise's discovery that its damages would be the subject of expert opinion. Mot. Hr. 13. Parisi, GreenLeaf's expert provided a damage computation that was expressly limited to GreenLeaf's breach of contract claim. Dkt. No. 86 at 5. As indicated, the Court later excluded Parisi's opinion.

5.   GreenLeaf was permitted to seek commissions and supplemental compensation from MetLife under the Final Proposal during the period before a new contract was signed with the successful RFP bidder.

6.   At summary judgment, GreenLeaf argued for the first time that it may be entitled to $9.2 million in damages based on the theory that Ameriprise ultimately saved this amount in reduced premiums. Dkt. No. 220 at 72-73. GreenLeaf asserted this amount as an unjust enrichment damages calculation. This statement does not cure GreenLeaf's failure to disclose a damages computation for several reasons. First, this computation was divorced from the evidence in the record. The Court had expressly rejected this damages computation stating that “enrichment has to be unjust, and there's certainly nothing unjust about [Ameriprise] retaining, as it were, a reduced premium.” Id. at 74. That is, after all, the purpose of an RFP. It therefore could not, as a matter of law, be unjust for Ameriprise to retain at least some portion of these reduced premiums. Id. Second, GreenLeaf admitted that this computation was based in part on Parisi's excluded expert report. Id. at 75 (noting that GreenLeaf would rely in part on Parisi's expert report to prove these damages). Most importantly, this damages computation is not the proper measure of damages available to GreenLeaf in a jury trial—the reasonable market value of the services provided to Ameriprise. Rather, it is a disgorgement remedy (i.e. Ameriprise must disgorge its premium savings) that GreenLeaf expressly eschewed in its argument for a jury trial as a matter of right. Dkt. No. 157 at 5, 15-17.

7.   At trial, GreenLeaf suggested there was no prejudice (or no late disclosure) because “these numbers have been talked about.” Mot. Hr. 19. That argument fails. First, as already noted, the damages range disclosed at trial was close to a million dollars higher than GreenLeaf's expert disclosure, when presumably numbers “were discussed.” Id.; Dkt. No. 86. Second, as GreenLeaf admitted, the numbers came from the commissions GreenLeaf typically receives, not as a measure of the market value of an RFP. Mot. Hr. 19-20.

8.   To decide whether a party enjoys a right to a jury trial on a specific claim, courts look to a party's right to a jury trial when the Constitution and the Seventh Amendment were adopted. In making this determination, courts engage in a two-step inquiry. Tull, 481 U.S. at 417-18. At step one, courts examine the nature of the action to assess whether it is analogous to 18th-century actions brought in the law courts of England prior to the merger of the courts of law and equity. Id. at 417. Second, courts consider the remedy sought to determine whether it is legal or equitable in nature. Id. at 417-18. Of the two inquiries, the second is the “more important.” Id. at 421.

9.   When pressed on what Roofener would testify to, GreenLeaf proffered that Roofener would testify that GreenLeaf prices their RFP services based on commissions the successful bidder in the RFP would pay to GreenLeaf. He claimed to never price an RFP on the basis of a flat fee or hourly rate. Mot. Hr. 19-20; Tr. 153-54.

10.   To the extent GreenLeaf intended to establish its damages through testimony regarding Roofener's hourly rate and the time he invested in the RFP, this evidence could not resurrect GreenLeaf's damages claim. As a threshold matter, this evidence could not be introduced to establish GreenLeaf's undisclosed damages computation of between $1.5 and $2.5 million. Moreover, GreenLeaf acknowledged that Roofener exclusively priced RFPs based on commissions. Mot. Hr. 19-20; Tr. 153-54. The jury would thus have been left to speculate as to how Roofener's hourly investment in the RFP informed its reasonable market value to Ameriprise.

DAVID T. SCHULTZ United States Magistrate Judge