to the second case karma international versus indianapolis motor and two thousand and sixteen was the exclusive licensee for the maxim brand and pursuant to that license it contacted engaged in a relationship with the international motor speedway to host a party in may of two thousand and sixteen around the one hundredth anniversary of the indianapolis five hundred race and my client karma secured the venue for that event it hired the talent for the event and host of the party and expected revenues of the next six hundred thirty five thousand dollars in doing so when karma filed the complaint in this action which rises to the errors that we are here today to discuss it set forth in the complaint the terms of the trade agreement between the particles and i think the district court when it improperly granted summary judgment relied solely upon that trade agreement as the entirety of the contract and the contractual relationship between the particles and what happened was that the district court disregarded other allegations the complaint that talked about other obligations of the parties such as oral representations and promises that were made by the indianapolis motor speedway to karma upon which karma will lie to its detriment in this particular case so when granting summary judgment the trial in the trial court the district court improperly ruled as a matter of law that there were certain judicial in missions made  by my client karma in the complaint and it disregarded any evidence of oral promises in representations of the international motor speedway which formed in part the basis upon which the complaint was  provide that he believed that but what evidence shows that the belief is correct just based upon his history in the industry your honor he has worked with other similar there must be people who can testify to the relation between last e mails and sales yes i we intended to prove that through two sources your honor hoodie still partly intelligence there is no such evidence in this record and that's a problem at least for me we intended at a time of trial your honor to prove that through two sources one one was mr maher and one was the international motor speedway who has a history of utilizing their email database to promote their events and based upon their promises and representations to mr mark that through their marketing efforts they were always able to sell out their events we didn't think it was necessary to have an independent marketing expert to give an opinion on that issue your honor with respect to the issue however i think it was improper for the district court to first rule as a matter of law that there was a judicial admission in the pleadings that the trade agreement solely amend the pleadings to allow the evidence to conform to what has come out in discovery then the district court would have been presented with a situation where it would have had to consider the disputed issues a fact and then it would have said that summary whether or not based upon the representations by the international motor speedway that five hundred dollars per ticket was a fair price that fifteen hundred tickets was a fair allocation of the tickets that would be sold and based upon the evidence that karma had as far as what his expenses were were it would have been up to the jury to make that determination and the judge as rationale is that that testimonial evidence about you know we always sell out at such a that was speculative as a measure damages and what what's wrong with that reasoning i think what's wrong with that reasoning and i don't think they necessarily utilized the word speculative i think the word was that they said that the the evidence wasn't such that it was a guarantee but rather that it was a promise in our contention is that a promise is a contract and therefore that was enough for the trial court to say that the issue should be decided by the jury but i but i  understand that you still have to prove a link between the failure to send an e mail and the lackluster ticket sales and that's what's missing here and you can't fill that gap with this sort of puffing testimony from the speedway folks and the judge did say that's just speculation it's not evidence i did the court did go on to say speculation but it also said that by saying that we will sell this event out we will sell fifteen  hundred tickets and five hundred particulars not an unreasonable price i think the court was saying that that wasn't a guarantee that the event would be in fact sold out at fifteen hundred tickets to answer your honor's question there were two ways that we intended to do this one is through the testimony of mr mark who's been in the industry for nearly thirty years who had hosted the two thousand and sixteen and f l super bowl party in a knows how these events are marketed and how there's a schedule in place to effectively sell to your clientele that's number one number two in discovery we asked representatives of the international motor speedway based upon their sending of emails out to their customer and email of you know involving a completely different event at a completely different time and produced a sad lot where is this one didn't and in that that's not enough to establish causation because then you're going to have a damages expert who is also going to be relying upon speculation because the damages expert's going to have to be analyzed the specific market and the in the industry in order to make that determination right and it's reliable evidence in a court of law just an assertion that well these events generally sell out is not a reliable proof of a causal connection between the failure to send an e mail and the level of damages that you're claiming yeah i disagree your honor for this reason that in this particular instance first of all you had the district court finding as a matter of fact and as a matter of law that international motor speedway entered into a contractual relationship and breach that contractual relationship because they didn't send a dedicated email for their entire data what's the effect of the jury trial evidence and issue was conclusively resolved against you by the jury so the judges summary judgment ruling on the breach question to see evaporates well not because that was embedded in the counter claim it wasn't that in the country but i think the problem for the international motor speedway as to that particular issue is that at trial on the counter claim they provided no evidence whatsoever that they reasonably expected to be damaged as a result of the failure to place the banner a dot com that became the sole issue at time of trial but they had to prove their own performance direct right in order to recover and that there isn't a jury found against you on that so the proofs at tile were different than what was in the record reviewers in this particular instance say that karma had the opportunity at time of summary judgment to argue the or representations in the reliance upon the or were visitations because then that issue then becomes summary judgment and solely relied upon the trade agreement as the only memorialization of what the parties intended in this particular case and nowhere in the complaint was that state in fact that the term trade agreement was not a defined term term the trade agreement was attached to the complaint but the defined term in the complaint was agreement capital ebay not the trade agreement capital t a and what we defined in the complaint was that there was this agreement and that there were these other promises and representations so at time of summary judgment it was our position that even though we lost on the motion earlier for leave to amend the complaint to bring in these additional quasi contractual remedies at time a summary judgment when the court was ruling upon the merits of the issues it should have taken a look at those oral representations and promises and defeated summary judgment and allow the case to go to trial and that particular issue good morning your honor may please the court i'm angela hulet representing the indianapolis motor speedway when i am mass and karma international got together and agreed to work together to co market the maximum indy five hundred party in two thousand and sixteen i m s hoped it would succeed and did everything it could to help that party succeed however i am aest never took on any obligation or responsibility for the execution of that party and let alone the success of that party and there was some talk at just a few minutes ago about how a damages expert may have been useful to carmen international in its case and i would posit to the court that in fact simply obtaining a concrete obligation from i m s which they have testified they would never have done to sell a certain number of tickets or related to the success of the of the event would give karma international what it seeks here but there is no evidence that that ever occurred there is speculation and that's that's all we're like here  we had a trial the result of that trial was a judgment favor of biomass and while it was for a lesser amount a much lesser amount than i m s requested from the jury and a lesser amount then i am ss damages expert told the jury and it should be awarded that judgment was based on evidence it was based on testimony from multiple witnesses and it's fully supported by the record that karma is asking the court to not prove that i had any ascertainable b images and that was the sole basis for the court's ruling on summary judgment there was no evidence no expert that the any actions by the indianapolis motor speedway actually caused the damages that karma claimed in fact karma claimed that the event would have been a total sellout and that it would have received a gross profit and wanted i am asked to provide compensation for that entire gross profit without regard to the expenses involved in putting on the a bet so that  manifestly wrong from the beginning and i am most certainly would not be responsible for the gross profit over the vent let alone any profit from the event where it made no guarantees as to its success how many of these private  parties are typical at an indy five hundred weekend they start to get terribly typical there are a few regular events there's a snake pit ball that happens every year and i m s is involved in some other events this was an unusual situation i don't believe i m s had ever licensed its intellectual property to a third party to put on a one of these types of events in two thousand and sixteen because of the scope of the race that year and in fact that was the first year that there was ever a total sellout for the the race been you and in two thousand and sixteen i believe there were two of this that i amas actually licensed its intellectual property to because they wanted to capitalize on this this monument this occasion and get the it was so special about twenty sixteen it was the one hundredth running of the race wasn't that the one hundred year one hundred running because there were several years where the race didn't occur due to war or other circumstances so it was the one hundredth running of the race which was a big deal yeah it was really cool to see  posters on the door sold out so karmas damages aren't related to i m s as deliverables as a simple look at the trade agreement shows there was no mention of a number of tickets  no mention of the number of attendees there was no mention of any nexus between the email to be sent and what it would produce i messed simply agree to send it and it did so and ruling by the district court should be overturned because the court's finding that karma judicially admitted that that trade agreement was the parties entire remain is was incorrect however  to amend its complaint in this case sought to admit its complaint after discovery closed and it was i believe seven months after the deadline in the case management and for such an amendment and the district court denied the motion to amend the complaint and that was that it was an order of the magistrate judge kharma failed then to appeal or object to that ruling to the article three judge and in doing so kharma waived any right it had to appeal the denial to the denial to amend the complaint and i think we've cited the u s b hernandez reavis case  from this court from two thousand and three in our brief on that point so karma is bound by its pleadings but the court found that it was it's also bound by the statements it made there in it was not only in the complaint that it alleged the trade agreement was the party sole agreement it was also in that in answer to i m s it's counter claim because i am asked in fact alleged that the trade agreement did not moralize the entire entirety of what the parties discussed it was signed but kharma denied that in answering the complaint and specifically stated that the trade agreement was the party's entire agreement so karma also alleges in this appeal that the district court did not permit that the district cart court committed an error by not conforming the pleadings to the evidence in this case and there's never been a motion may that the allegation is that the district court should have on its own so a sponsor conform to the pleadings to the evidence presented and and basically revived the claims that it wasn't allowed to assert in the denied amended complaint the cases that are cited on this this proposition in the brief simply do not support it in congress briefing all of those cases had to do with instances where the amendment of the claims would not prejudice the other party and here the court found clearly that amendment would prejudice the you know atlas motor speedway because all of the discovery had been completed in reliance on the claims as asserted in the complain and finally the district court after trial correctly enter judgment to i m s on its counterclaim karma simply ignores all of the testimony from the indianapolis motor speedway witnesses at trial about the damages contemplated at the time of entering into this agreement that were later specifically quantified by the expert witness the marketing expert witness who by the way carmen agreed was qualified in that area to testify at trial the district court in fact said there was ample evidence at trial from which the jury reasonably could conclude that the damages were reasonably forseeable by the parties and i am s's executive director of events testified about the value of karmas deliverables to imus the banner ad having value not only in relation to this event but beyond because of the the intended those would produce positive fan engagement for for the indianapolis motor speedway and so the hard imus of course has been the failure to receive the promised exposure and the lost opportunity associated with the hundredth running event being such a special time in addition i m s gave up many of its own assets to karma international as in the form of sweet space credentials tickets so i amas also get anticipated that if performance was lacking the loss of those assets would be detrimental as well and finally the district court correctly denied karmas requests for a new trial and that finding is an abuse of discretion standard of review and the jury found that i m s complied not only with  contractual obligations and that was supported by the evidence and i m s what about beyond i've already talked about that sent not a not just one e mail as required by the trade agreement but three dedicated or standalone emails for this event and one e mail that included this event and some others and there was submissive never get insufficient evidence that karma failed to comply with its own obligations and that's what the jury based its verdict on  both jared crystal off spoke of earlier who's the executive director of events or was at that time the indianapolis motor speedway and ryan hollander of the indianapolis speedway testified that there was no banner ad ever placed by maxim and that there were no social media posts and they had done research to confirm the truth of those statements and they talked about that at trial the only testimony on this point from carmen international was that  o dylan maher who said he didn't know whether those deliverables had ever been and actually placed and that he introduced i m s to executives or team members at max and anticipated that they would then take it from mayor to make sure karma international complied with its obligations under the trade agreement but as the district court said in its ruling denying the request for a trial simply making an introduction isn't fulfilling your kind contractual obligations there was more required of karma and the jury found that that crime and good enough to fill those  i guess in summary i m s was acting in a karmic way or it was seeking to give as good as it got and it wanted some reciprocation it may be the court's rulings and the judg judgment that it breached the contract and the exact wording in the just records summary judgment opinion was that quote there is no question that i am ask not send an email to its entire database and and the reason that i want to start with that on rebuttal is because i am ass in their arguments before the court here this morning completely left issues in the complaint as a relates to what the promises that i m s would do with respect to sending and promoting this event to their entire email database and while i am most wants to take the position that they sent three emails to promote this event the fact remains that they never sent an email to their entire database as they were contractually obligated to do it that then delves into the issue of the damages that you know the court is having an issue with involved actually before it gets into that it runs into the teeth of the jury's verdict well the jury's verdict had to do with the i m s value of their intellectual property it did but after that the jury had to conclude that the steeply performed its and of the park and as a relates that that particular issue in the counter claims it that it provided the deliverables and that those deliverables had had a value correct but not as it relates to any other issues because i was precluded at time of trial from getting into the merits of that issue because of the grant of summary judgment so i had a sort of dance around that i could ask you looking at the trade agreement yes it has a fair amount of those specifics yes for both parties if there was a commitment to use the entire database fourth full point thank you council for i m s the fourth bullet point under the first deliverable marking support the i m s social channels and one dedicated email to i m s database does not use the word entire design database and just as database it does and your honor at that in discovery we asked whether their entire database was what they represented it to be because we had to start breaking it down and they ult do respect imus who may disagree on this i think at time of discovery everybody agreed that database meant the entire database and i believe there may have been a request for admission on that particular issue with respect to whether the entirety of the database represented who they claimed to have sent the e mails to and it ultimately became that it was the seven hundred thousand your honor where i wanted to conclude was that i heard counsel fry an essay that a time summary judgment the district court made a ruling that it would have been prejudiced had the evidence conform to what came out in discovery and that is absolutely improper and the reason that it's improper is because there was extensive discovery prior to summary judgment as it relates to all of these issues of or representations and promises and i've asked the court when it makes its ruling in this particular case to take a look at paragraph sixteen and seventeen of our complaint paragraphs sixteen and seventeen of our complaint in this particular case say quote i am aest made representations and assurances that fifteen hundred tickets would be sold at five hundred dollars per ticket and paragraph seventeen of the complaint says that faced upon the representations and contractual obligations made by i m s that karma expected a million dollars in gross revenues so to say that it would have been prejudiced at time of summary judgment by  having to defend against new theories new cause of actions is now absolutely improper in light of the fact that for jump in the complaint it was alleged that there were these assurances and representations the last thing that i wanted to our representative to testify on it as to the issue of damages and utilizing the testimony biomass would have been sufficient i cite to what's in our brief in some some seventh circuit case law that says that federal courts routinely from it the owner an officer of the business to testify as to damages without the necessary necessity of qualifying the witness as an accountant appraiser or similar expert and in this particular case based upon what believe that it would have been right for the jury to make that determination based upon solely mr maher in the in the testimony of i am asked without in a sound basis and that you're for trying to affect business owners can testify to to their own sales but what you're asking for is for the speedway's principal of one of the principals for speedway to testify i must say i know two things arms and what karma would have sold you know you and i apologize if i missed let the for what i was saying is too full mr maher has been in the marketing industry of doing these parties for nearly thirty years he knows the market as far as how an event is marketed via social media via the  channels that i m s was to deliver in this particular instance and the return on those social media efforts to sell tickets to a third party vendor to a third party that yes even though he's not affiliated with third party vendor he deals with the third party vendors every day the second way that we intended to do this was through i m s his own testimony that we learned through discovery and through the ways in which they market their event say that we are inspired by fashion our music and racing with two hundred two thousand plus attendees that will be attending this particular event so even i m s his own president felt as though two thousand people would be a