Opinion
Case No. 00-2366-JWL
July 8, 2002
MEMORANDUM ORDER
Plaintiffs Carolina Industrial Products, Inc. ("Carolina Products"), Joseph Wilen, and J.W. Equities, L.L.C. ("J.W. Equities") brought this action against defendant Learjet, Inc. ("Learjet") asserting numerous claims related to Learjet's refusal to perform work on plaintiffs' airplane, N825D. A trial to the court on two of the claims, promissory estoppel and fraud, was held May 7, 2002 through May 8, 2002. In its finding of facts and conclusions of law, the court held that "plaintiffs did not rely on representations by Learjet in deciding to defend the FAA suspension action instead of selling N825D for scrap; that any reliance by plaintiffs on representations made before November 1, 2000, was unreasonable and that Learjet should not have expected plaintiffs to act in reliance on those representations; that plaintiffs would not have incurred damages if they had relied on representations made before November 1, 2000; that the conditions precedent to Learjet's promised actions in the November 1 letter were not met; that Learjet did what it represented it would do in a letter dated November 1, 2000 if the conditions precedent were met; that Learjet intended to do what it said it would do in the November 1 letter; and that, measured from the date of the trial, plaintiffs had no damages."
Plaintiffs have filed a motion (Doc. 276) seeking relief under Federal Rule of Civil Procedure 59(a)(2) and (e), pointing to evidence discovered by plaintiffs after the trial. The evidence, a booklet published by Learjet, dated April 2002 and titled "Operators Service and Support Personnel," contains a section entitled "A/C listing by Serial No." and lists Learjet airplanes by registration number. The booklet does not represent that the list is a comprehensive list of active Learjet airplanes, although a reader may reasonably so infer.
A party seeking a new trial under Rule 59 based on newly discovered evidence "must show (1) the evidence was discovered since the trial; (2) the party was diligent in discovering the evidence; (3) the evidence was not merely `cumulative or impeaching;' (4) the evidence was material; and (5) the evidence probably would have produced a different result at trial." Joseph v. Terminix Int'l Co., 17 F.3d 1282, 1285 (10th Cir. 1994); see also 11 Wright, Miller Kane, Federal Practice and Procedure § 2808, at 86-94 (2d ed. 1995) (explaining that a new trial under Rule 59(a) requires showing that the moving party was "excusably ignorant of the facts despite using due diligence to learn about them" and that the evidence is "admissible and probably effective to change the result of the former trial" as opposed to "evidence that would merely affect the weight and credibility of the evidence" or is "cumulative of evidence already offered").
Under the standard for granting a new trial based on newly discovered evidence, plaintiffs fall far short. Counsel for plaintiffs claims to have stumbled upon the evidence after the trial. He does not argue that he failed to discover the booklet despite diligent efforts prior to trial. Instead, plaintiffs' counsel explains in his affidavit that he "did not investigate the status of the aircraft, directly or through Learjet, prior to trial because Ron Sprague specifically requested that no direct or indirect contact be made with Learjet concerning the status of the aircraft." The fact that counsel for Learjet requested that all communications be directed to counsel instead of his client simply is not an excuse for failing to investigate the status of N825D, an essential element of plaintiffs' case at trial.
Effective discovery could have been completed by interrogatories or requests for production sent to Learjet's counsel or by deposition. Plaintiff's motion is denied on this basis. Vess v. United States Air Force, 1994 WL 524972 (10th Cir. Sept. 27 1994) (denying motion because "[t]here is no evidence that the affidavits submitted with her motion to reconsider could not have been acquired earlier had plaintiff been properly diligent."); Committee for the First Amendment v. Campbell, 962 F.2d 1517. 1523 (10th Cir. 1992) (explaining that "the movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.")
At trial, evidence was presented regarding the status of N825D. Ann Beaurivage, general counsel for Learjet, testified that Learjet considered N825D an active aircraft. Plaintiffs introduced into evidence a list of active aircraft, printed sometime after June 12, 2001, that did not include N825D. Evidence of another list, printed in April of 2002, would be additional evidence that Learjet did not quickly list N825D as an active aircraft in its customer database. In this respect, the evidence would be merely cumulative, the type of evidence which may not serve as a basis for a new trial. Joseph v. Terminix Int'l Co., 17 F.3d 1282, 1285 (10th Cir. 1994) (denying motion because the newly discovered evidence "would be cumulative or offered as rebuttal."); Lyons v. Jefferson Bank Turst, 994 F.2d 716, 728 (10th Cir. 1993) ("The newly discovered evidence must not be cumulative not only with the evidence that the moving party actually presented at trial, but also with the evidence that the moving party could have, had it exercised due diligence, presented at trial."); United States v. Martinez, 1991 WL 9909 (10th Cir. June 6, 1991) ("Evidence which is cumulative or impeaching is insufficient to warrant a new trial."). On this basis, plaintiff's motion is denied.
Learjet pointed to evidence in its response that it would have offered at trial had the April 2002 list been introduced into evidence. The proffered evidence indicates that the April 2002 list would be of little significance. Even without Learjet's proffered evidence, the court concludes that evidence of the April 2002 list would not have persuaded the court that Learjet did not do what it promised in the November 1 letter, specifically that Learjet would recognize N825D by whatever designation is acknowledged by the FAA and sell parts to the owner. Plaintiffs did not introduce evidence indicating that Learjet refused to sell parts to plaintiffs or told plaintiffs that it did not consider N825D an active aircraft. Evidence showing that N825D was not quickly added to Learjet's customer database does not persuade the court that Ms. Beaurivage was incorrect or not telling the truth when she testified that Learjet considered N825D an active aircraft upon verifying the FAA's decision.
Even if the court concluded that Learjet did not do what it said it would do in the November 1 letter, this conclusion would not have changed the result at trial. In order to prevail at trial, plaintiffs would have had to prove that they relied on representations by Learjet in deciding to defend the FAA suspension action instead of selling N825D for scrap. The court found that they did not. Plaintiffs would have also had to show that their reliance was reasonable and the court found that any reliance by plaintiffs on representations made before November 1, 2000, was unreasonable. In the alternative, plaintiffs could have proven that they incurred damages in reliance on representations made before November 1, 2002, but the court found that they did not. Plaintiffs would have also had to prove that the conditions precedent to Learjet's promised actions in the November 1 letter were met, and the court found that they were not. In order to prevail on the fraud count, plaintiffs would have had to prove that Learjet did not intend to do what it said it would do in the November 1 letter and the court found that Learjet did intend to do so. Also, plaintiffs would have had to prove that they suffered damages and the court found that, measured from the date of the trial or from when the FAA issued a new airworthiness certificate, plaintiffs had no damages. Thus, the court holds that the new evidence definitely would not have produced a different result at trial.
In sum, plaintiffs have not shown that they were diligent in attempting to discover the evidence. In fact, counsel's affidavit indicates that he did not attempt to discover the status of N825D.
Evidence of the April 2002 list would have been cumulative of evidence presented at trial. The evidence would not have persuaded the court that Learjet failed to do what it promised to do in the November 1 letter. Even if the evidence did so persuade the court, the evidence would not have produced a different outcome at trial.
IT IS THEREFORE ORDERED that plaintiffs' motion for a new trial (Doc. 276) is denied.