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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13264
Non-Argument Calendar
____________________
VITAL PHARMACEUTICALS, INC.,
A Florida Corporation d.b.a. VPX Sports,
Plaintiff-Counter Defendant-Appellant,
versus
MONSTER ENERGY COMPANY,
A Delaware Corporation,
REIGN BEVERAGE COMPANY, LLC,
A Delaware Limited Liability Company,
Defendants-Counter Plaintiffs-Appellees,
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2 Opinion of the Court 21-13264
JHO INTELLECTUAL PROPERTY HOLDINGS, LLC,
Cross Defendant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-60809-RKA
____________________
Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Vital Pharmaceuticals, Inc. (“VPX”), appeals the district
court’s decision to strike its claim for actual damages—and, as a
result, its jury demand—as a discovery sanction in this trademark
and trade dress infringement action against Monster Energy Com-
pany (“Monster”) and Reign Beverage Company, LLC (“Reign”).
The court found that VPX violated its discovery obligations by fail-
ing to disclose the amount of damages it was seeking or how those
damages might be computed, and that its failure was neither sub-
stantially justified nor harmless. After the court conducted a bench
trial and ruled against VPX on its remaining claims, VPX appealed
the sanctions ruling. Because the district court’s decision to impose
sanctions was amply supported by the record and its choice of sanc-
tion was reasonable under the circumstances, we affirm.
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21-13264 Opinion of the Court 3
I.
In March 2019, VPX filed a complaint against Monster and
Reign seeking injunctive relief, damages, and disgorgement of prof-
its for trade dress infringement, trademark infringement, and un-
fair competition. VPX and Monster are competitors in the energy-
drink marketplace. The gist of VPX’s complaint was that Monster
created Reign to market a line of energy drinks that blatantly in-
fringed the trade dress VPX used on its “Bang” line of energy drinks
to confuse consumers. We refer to the defendants collectively as
“Monster.”
VPX served its initial disclosures under Rule 26, Fed. R. Civ.
P., in May 2019. In a section of that filing regarding “Computation
of Damages,” VPX wrote that it sought “monetary relief as set
forth in its Complaint, including Defendants’ profits,” but that it
“has not yet made a computation of its damages because it requires
discovery from Defendants in order to do so.”
In July 2019, Monster served a second set of interrogatories
requesting more information about “the form of damages (e.g., lost
profits, some other form of damage, etc.)” and “the method and
the basis for computing those damages,” among other things. In
its October 2019 response, VPX objected to the request as “prema-
ture” and indicated that the information would be provided
through “[e]xpert reports and testimony.” Later that month, it
filed an amended response stating that it sought damages including
(1) disgorgement of profits, (2) lost sales, and (3) damage to good-
will and reputation. It advised that the amount of such damages
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4 Opinion of the Court 21-13264
was “presently unknown,” but that “[e]xpert reports and testi-
mony” will be served “in support of this damages claim.” “In the
meantime,” VPX stated, it “will produce appropriate native format
financial records relating to the sales of the BANG product.”
Despite these promises, though, the expert deadline in No-
vember 2019 came and went without any expert report on VPX’s
damages. 1 And VPX’s CEO, whom VPX had proffered as a witness
on the issue of damages, evaded nearly all of Monster’s damages-
related questions during his January 2020 deposition, and instead
suggested that the issue was for an expert. At best, the CEO pro-
vided some limited information about the remedy of disgorge-
ment, but not lost sales or loss of goodwill.
On March 19, 2020, about two months before the scheduled
trial date in May 2020, Monster moved to strike the claim for actual
damages on the ground that VPX had failed to disclose “any calcu-
lation of the amount of damages it claims to have incurred, or the
bases for any belief it may have that it has suffered damages in that
undisclosed amount.” Monster also contended that the district
court should strike VPX’s jury demand because the other remedies
requested, including disgorgement of profits, were equitable in na-
ture and provided no right to a jury trial.
1 VPX later moved to extend the deadline for serving expert reports, arguing
that it had missed the deadline due to a docketing error. The district court
denied the motion, and VPX does not challenge that ruling on appeal.
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21-13264 Opinion of the Court 5
In response, VPX responded that sanctions were not appro-
priate because expert testimony was not required to establish ac-
tual damages and because it had identified its theories of damages
and “produced considerable financial-related documents” to quan-
tify those damages. For the same reasons, it opposed striking the
jury demand. Monster replied in part that the production of the
financial documents did nothing to alleviate VPX’s failure to pro-
vide a computation of its actual damages and the factual and legal
grounds for that computation.
The district court held a hearing in May 2020. The court
began the hearing by outlining its general views on the matter. On
the one hand, the court stated, sanctions were appropriate based
on VPX’s failure to offer a computation of its damages and the
methodology it used. But on the other hand, the court observed,
Monster never filed a motion to compel, which could have “nipped
this in the bud,” and instead sought sanctions on “the eve of trial,”
which suggested “a little bit of gamesmanship and gotcha.” The
court then questioned the parties.
Monster explained that, after VPX failed to produce the
promised expert report on damages or to “put together an actual
damages case,” it believed VPX was going to “rely on simply dis-
gorgement,” which was relatively easy to prove. For its part, VPX
repeated arguments from its briefing but failed to offer any clarifi-
cation of its computation of damages or the methodology it would
use to prove actual damages to the jury.
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Ultimately, the district court granted the motion to strike
VPX’s claim for actual damages under Rule 37, Fed. R. Civ. P. The
court found that VPX had “entirely failed to disclose its computa-
tion of damages as required by Rule 26(a) and (e).” VPX, the court
noted, rebuffed Monster’s interrogatories on damages as “prema-
ture” and then failed to provide the promised expert report on
damages. The court further concluded that the failure was neither
substantially justified nor harmless. It observed that VPX had of-
fered no justification for its failure, and that Monster would be prej-
udiced because it “had no opportunity to test the Plaintiff’s theory
in discovery” and would have to “guess at both the amount of the
Plaintiff’s actual damages and the methodology.” Because VPX’s
remaining claims were equitable, not legal, in nature, the court
struck the jury demand as well.
The district court conducted a lengthy bench trial and ruled
against VPX on its remaining claims in an extremely thorough 128-
page order. VPX appeals, arguing solely that the court abused its
discretion by striking VPX’s claim for actual damages.
II.
Our review of a district court’s decision to impose sanctions
under Rule 37 for discovery violations is “sharply limited to a
search for an abuse of discretion and a determination that the find-
ings of the trial court are fully supported by the record.” Mee In-
dus. v. Dow Chem. Co.,
608 F.3d 1202, 1211 (11th Cir. 2010) (quo-
tation marks omitted). “A district court abuses its discretion when
it misconstrues its proper role, ignores or misunderstands the
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21-13264 Opinion of the Court 7
relevant evidence, and bases its decision upon considerations hav-
ing little factual support.” Serra Chevrolet, Inc. v. Gen. Motors
Corp.,
446 F.3d 1137, 1147 (11th Cir. 2006) (quotation marks omit-
ted).
Rule 26(a) requires a party to disclose “a computation of
each category of damages claimed by the disclosing party,” among
other information. Fed. R. Civ. P. 26(a)(1)(A)(iii). Rule 26(e) re-
quires a party to supplement its Rule 26(a) disclosures or its other
discovery responses if it “learns that in some material respect the
disclosure or response is incomplete or incorrect” and the infor-
mation has not otherwise been made known to the other parties.
Fed. R. Civ. P. 26(e)(1)(A).
Rule 37(c) provides for sanctions against a party that fails to
disclose information required under Rule 26(a) or (e). Among
other sanctions, the district court may exclude a category of dam-
ages that was not properly disclosed. In Mee Industries, for exam-
ple, we affirmed the exclusion of the plaintiff’s loss-of-goodwill-
damages theory based on lack of notice in the required Rule 26 dis-
closures and the interrogatories of both the theory and the calcula-
tion of damages.
608 F.3d at 1221–22. Sanctions are not warranted,
however, if the “failure was substantially justified or harmless.”
Fed. R. Civ. P. 37(c)(1).
Here, the district court acted well within its discretion when
it excluded VPX’s actual-damages theories as a sanction for discov-
ery violations. To start, VPX does not meaningfully dispute the
court’s findings that it entirely failed to provide damages
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8 Opinion of the Court 21-13264
information required by Rule 26(a) and requested in Monster’s in-
terrogatories. As the court noted, VPX failed to offer any compu-
tation of its damages in its Rule 26(a) disclosures, rebuffed Mon-
ster’s interrogatories related to damages as “premature,” failed to
submit a promised expert report on damages, and offered witnesses
who gave little to no material information on the issue of damages.
Nor did the district court abuse its discretion in concluding
that the failure to provide this information was not “substantially
justified” or “harmless.” See Fed. R. Civ. P. 37(c). VPX has offered
no justification for failing to comply with its discovery obligations.
The mere fact that Monster did not file a motion to compel could
not have “lull[ed] VPX into believing it had satisfied its burden”
under the circumstances here. VPX Br. at 23. The deficiency of
VPX’s disclosures and responses was obvious, and VPX failed to
provide the expert report on damages it had promised would cure
those deficiencies. VPX’s failure was also harmful. While VPX
identified categories of damages and produced financial records, it
never presented the required computation of lost sales or loss of
goodwill, much less how those damages might be computed.
And it still has not. VPX’s briefing simply points in general
terms to the parties’ sales and accounting records and the testi-
mony of its corporate representatives. But it fails to explain what
Monster (or the district court, for that matter) was supposed to
glean from this information, or how Monster could have prepared
an effective defense. As we stated in Mee Industries, “calculating
the goodwill of a business and the harm to that goodwill that flows
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from a particular lawsuit will often involve complex financial cal-
culations.”
608 F.3d at 1222. Indeed, the record shows that VPX
thought it would require complex calculations in this case, given
its promises to provide an expert report. So the district court rea-
sonably concluded that VPX’s failure to provide a damage calcula-
tion was not harmless. See
id. (failure to provide a damage calcu-
lation for loss of goodwill damages was not harmless).
Finally, the district court’s choice of sanction was reasonable
and appropriate. The court reasoned that Monster had been prej-
udiced by VPX’s failure to comply with its discovery obligations,
and that permitting VPX to seek actual damages would eviscerate
the requirement for a party to disclose its damages computation.
Moreover, VPX’s proposed sanctions are wholly inadequate to
cure the harm here. We fail to see why the court should have given
VPX more time to submit a damages calculation when it had ample
opportunity to do so. And in any event, giving Monster “a week
to respond” to the damages computation is no remedy because, as
the court observed, Monster was deprived of the opportunity to
conduct targeted discovery to test the claimed damages. Also, a
directed verdict at trial would not be appropriate because the issue
was not about the sufficiency of the evidence, but rather about
Monster’s ability to prepare a targeted defense and the fairness of
the trial.
Because the district court properly excluded VPX’s claim for
actual damages, it also did not err by conducting a bench trial.
VPX’s remaining remedies, including disgorgement of profits,
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10 Opinion of the Court 21-13264
were equitable, not legal, in nature, so it was not entitled to a jury
trial on those matters. See Hard Candy, LLC v. Anastasia Beverly
Hills, Inc.,
921 F.3d 1343, 1359 (11th Cir. 2019) (“[A]n accounting
and disgorgement of a defendant’s profits in a trademark infringe-
ment case is equitable in nature and does not carry with it a right
to a jury trial.”).
For these reasons, we affirm the district court’s decision to
impose discovery sanctions and the resulting decision to strike
VPX’s jury demand.
III.
On appeal, Monster moves for sanctions against VPX in the
form of attorney’s fees and double costs. As grounds for sanctions,
Monster claims that the appeal is frivolous both because VPX
waived its appellate arguments by raising them for the first time on
appeal or only in a motion for reconsideration, and because it
makes little effort to show an abuse of the court’s discretion.
“An award of damages and costs under Federal Rule of Ap-
pellate Procedure 38 is appropriate when an appellant raises clearly
frivolous claims in the face of established law and clear facts.”
McLaurin v. Terminix Int’l Co., LP,
13 F.4th 1232, 1243 (11th Cir.
2021) (quotation marks omitted). And in this Circuit, “a claim is
clearly frivolous if it is ‘utterly devoid of merit.’” Parker v. Am.
Traffic Sols., Inc.,
835 F.3d 1363, 1371 (11th Cir. 2016) (quotation
marks omitted). As these rules show, a losing appeal is not synon-
ymous with a frivolous one.
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21-13264 Opinion of the Court 11
We decline to award sanctions in this case. Monster over-
states any preservation issues. For instance, we do not read VPX’s
briefing to dispute the court’s finding that it failed to comply with
its discovery obligations, a failure it acknowledged before the dis-
trict court. And while its arguments were developed and refined a
bit more in a motion for reconsideration and on appeal, particularly
its suggested alternative sanctions, its response in opposition to
Monster’s motion to strike presented essentially the same position
that it takes on appeal: that its discovery failures were justified by
Monster’s failure to move to compel or were harmless because it
identified the categories of damages it sought and produced suffi-
cient supporting financial records to quantity those damages.
Nothing in this regard strikes us sanctionable.
The appeal also was not so “utterly devoid of merit” as to
warrant sanctions. See Parker, 835 F.3d at 1371. Although we have
concluded that the district court acted well within its discretion,
there were reasonable grounds for good-faith disagreement, and
VPX’s briefing identified relevant case law that could be construed
to support its position. Nor do we see anything to suggest that
VPX has “acted in bad faith, vexatiously, wantonly, or for oppres-
sive reasons,” such that sanctions might otherwise be appropriate.
Chambers v. NASCO, Inc.,
501 U.S. 32, 45–46 (1991) (quotation
marks omitted). VPX’s briefing was forthright about the proceed-
ings below and facts unfavorable to it. And VPX raised only a dis-
crete, key issue on appeal in an otherwise extensive and complex
case. For these reasons, we deny the motion for sanctions.
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IV.
In sum, we AFFIRM the district court’s order imposing dis-
covery sanctions and striking VPX’s jury demand. We DENY Mon-
ster’s motion for sanctions.
