Opinion
01 Civ. 2709 (HB)
June 3, 2002
OPINION ORDER
The plaintiffs Panix Promotions, Ltd. and Panix of the U.S. (collectively, "Panix"), boxing promoters, sued defendant Lennox Lewis ("Lewis"), the boxing heavyweight champion, and New Jersey Sports Productions, Inc., d/b/a/ Main Events ("Main Events"), Lewis' co-promoter, alleging various causes of action sounding in breach of contract. Lewis and Main Events counter-claimed against Panix and third-party defendant Panos Eliades ("Eliades"), for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 et seq., in addition to several other claims, including breach of contract, breach of fiduciary duty and fraud. On January 17, 2002, I dismissed Main Events' RICO claims on the plaintiffs' motion while Lewis' RICO claims survived. After a nine day trial, a jury rendered a verdict on February 14, 2002, awarding $7, 273, 641 to Lewis and $681, 469 to Main Events against Panix and Eliades. The plaintiffs now move pursuant to Fed.R.Civ.P. 50(b) for judgment as a matter of law or, alternatively, for a new trial pursuant to Fed.R.Civ.P. 59. For the following reasons, the plaintiffs' motion is DENIED.
DISCUSSION
A. Standard for motion for a new trial and judgment as a matter of law
Fed.R.Civ.P. 59 permits the granting of a new trial after an earlier trial by jury, and the decision whether to grant a new trial is "committed to the sound discretion of the trial judge." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992), cert. denied, 508 U.S. 952 (1993). Such discretion "is only exercised, however, in the most extraordinary circumstances." United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993). Further, the power of a district court to grant a new trial based on the weight of the evidence is limited to instances where the jury's verdict can be seen as "seriously erroneous," Piesco v. Koch, 12 F.3d 332, 344 (2d Cir. 1993), or the verdict "is a miscarriage of justice." Purnell v. Lord, 952 F.2d 679, 686 (2d Cir. 1992) (citation omitted).
A motion for a new trial may be joined, as here, with a motion for judgment as a matter of law under Fed.R.Civ.P. 50. Pursuant to Fed.R.Civ.P. 50(b), a court should only grant a motion for judgment as a matter of law when: (1) there is "such a complete absence of evidence supporting the verdict that the jury's findings could only have resulted from sheer surmise and conjecture," or (2) there is such an "overwhelming amount of evidence in favor of the movant that reasonable and fair minded" people could not have reached a verdict against the moving party. Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir. 1993) (internal citations omitted). The Court "must consider all the evidence in a light most favorable to the non-mover, must draw reasonable inferences favorable to the non-mover, and must not substitute its choice for that of the jury between conflicting elements in the evidence." Ortho Diagnostic Systems, Inc. v. Miles Inc., 865 F. Supp. 1073, 1078 (S.D.N.Y. 1994), appeal dismissed, 48 F.3d 1237 (Fed. Cir. 1995).
Panix claims that it is entitled to judgment as a matter of law, or alternatively a new trial, based on the following three grounds, (1) that Panix's trial preparation was wrongly impeded when Lewis obtained a freeze order in a British court (the "freeze order"), (2) that Main Events' co-counsel engaged in obstructive conduct to prevent one of Panix's witnesses from testifying, and (3) that the jury verdict was inconsistent.
B. Ex Parte Order from a British Court
On January 15, 2002, Lewis obtained an ex parte order from a British court to freeze the expenditure of funds by Panix's principal and third-party defendant, Eliades, who is a British citizen. Panix argues that the freeze order, obtained a few weeks prior to the start of trial, prevented it from adequate trial preparation. In particular, Panix claims that the freeze order had the effect of removing Eliades to London to contest the proceedings while choking off his funds to pay for legal expenses. On February 1, 2002, the same day on which the parties picked a jury, the British High Court held a hearing on the freeze order, and Lewis voluntarily withdrew his application. Panix alleges that the application for the freeze order was intended to impede its trial preparation.
This is hardly the first time that the circumstances surrounding the freeze order, and Panix's allegations in relation to it, have been heard by this Court. In particular, the matter was the subject of a telephone conference held among the parties and the Court at the behest of Panix shortly after Lewis obtained the freeze order. At that time, Panix had moved for an adjournment to the trial based on nearly identical grounds as those asserted herein. I denied Panix's motion for an adjournment and it was agreed during the conference that Lewis' counsel would make any funds that Panix required to litigate its case available forthwith. Panix again raised the issue of the freeze order with respect to one of its eight motions in limine which sought to preclude Lewis' expert witness from testifying on the grounds that Panix could not pay for its own expert witness. In light of the above-referenced conference, however, the parties later agreed that issue was moot and I denied the motion. (Trial Tr. 19:19). As was the case then, Panix has now similarly failed to show beyond its conclusory statements how it was specifically prejudiced by the events in England. Panix's arguments with respect to the freeze order failed to persuade me to adjourn the trial, or to preclude Lewis from calling experts, and must face a similar fate here, especially where Panix could not then nor can it now quantify any prejudice as a consequence of the freeze order. C. The alleged obstructive conduct of Main Events' co-counsel
In fact, plaintiffs' counsel submitted an amended affirmation in relation to Panix's motion for a new trial in which counsel corrected an earlier statement made in his first affirmation as to Panix's level of preparedness. The amended affirmation states, "It is important to correct an earlier statement. Whatever the pressure of time, it is incorrect to say we were not prepared for trial. As professionals, no matter whether there was frenzied activity or not, this trial had 3, not 1, attorneys for Panix and Eliades." (Goldberg Amended Aff. at ¶ 4). I also note here that Main Events in its opposition papers to the motion for a new trial moves to strike both the original and amended affirmations of plaintiffs' counsel. That motion is denied.
Panix also argues that a new trial is warranted due to the alleged misconduct of Main Events' co-counsel, Patrick English, ("English"). According to Panix, English's alleged misconduct purportedly prevented what Panix claims to be one of its key witnesses from testifying, thereby denying Panix a fair trial. Specifically, Panix claims that English, who was also a trial witness for Main Events as one of its officers, knowingly misrepresented to an intended witness, Dina Duva ("Duva"), via Duva's attorney William DeMarco ("DeMarco"), that if Duva testified at trial he would be implicated in tax fraud. I offered to hold a hearing before, during and after the jury deliberations and verdict. Panix demurred. It remains unclear from the record whether Panix would ever have called Duva to testify even absent the alleged behavior of English. As Lewis points out, Panix's counsel explicitly stated, when he finally sought a hearing after the jury reached and reported its verdict, that the issue had "nothing to do with jury deliberations." (Trial Tr. 2080:21). I held two days of post-trial hearings on March 26, 2002, and on April 3, 2002, during which Duva, Demarco, English and plaintiffs' counsel Brian Linder testified as witnesses. While I find that the testimony suggested some disturbing behavior on the part of English, I need not reach that issue. Panix has failed to show, nor in my view could it, that the absence of Duva's testimony at trial resulted in a miscarriage of justice. While Panix claims that Duva's testimony would have corroborated and bolstered the testimony of Eliades, whose credibility was certainly an issue, it is doubtful after hearing Duva's testimony that it would have resulted in a different verdict. His testimony, coupled with his own credibility problems, could hardly have parried Lewis' knockout blows or turned the tide of a nine-day trial in favor of Panix. Further, while Panix asserts that Duva's absence from the trial was solely the result of English's improper conduct, this too is hardly clear. As noted, there is a real question whether the plaintiff planned to call Duva. Further, Panix failed too to serve him with a subpoena, although one had apparently been prepared and sat on a table in front of Duva at a meeting with counsel. Additionally, after Panix learned of Duva's refusal to testify, Panix again failed to subpoena him. In sum, Panix's allegations do not warrant a new trial.
D. The Jury Verdict
Lastly, Panix argues that because the jury did not award Lewis damages on his breach of contract claim, but found Panix liable for breach of fiduciary duty, fraud and RICO violations, the jury verdict was necessarily inconsistent and warrants a new trial. I disagree. While the jury did not award damages as to the breach of contract claim, it can not unequivocally be said that they did not find liability. Rather, the jury was instructed to make a prevailing party whole only once, which they apparently did. During their deliberations, the jury asked via a note to the court in reference to the verdict form, "[ilf we decide that Lewis is owed a certain amount of money that falls under each of the clauses here, fraud, fiduciary and breach of contract, do we list that amount under all three categories or list under one category?" (Trial Tr. 2085:15-19). I wrote the jury a response as follows after agreement by the parties: "List damage amount due under each claim." (Trial Tr. 2089:18-20). The next day, the jury returned its verdict. Counsel for Panix never raised the issue of an inconsistent verdict, nor did they seek clarification of the verdict at the time.
The jury instructions were clear that "the object of this exercise is to make the prevailing party whole once," (Trial Tr. 2039:1-3), and "[t]he purpose of the law is to make the claiming party whole — to put it or him in the same position that it would have been in had there been no wrongful conduct." (Trial Tr. 2039:17-20).
For completeness I should add that the parties prior to deliberations had an opportunity to review and comment on the verdict form and also agreed to all of it.
There was in my view ample evidence to support the jury's verdict in this case and Panix has failed to meet the exacting test, i.e., that there be an overwhelming amount of evidence in its favor or that a miscarriage of justice occurred. The jury was presented with evidence from all sides and on every issue and did what they were sworn to do, in other words, I have no reason to second guess their verdict or the manner in which they performed their valued service. They were instructed to weigh the evidence as the sole fact finders, assess credibility and deliberate rationally, and in my opinion they did.
CONCLUSION
For the above reasons, the plaintiffs' motion for a new trial is DENIED.