Opinion
No. 06-4862-cv.
November 19, 2007.
Appeal from a judgment of the United States District Court for the Southern District of New York (George B. Daniels, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is hereby AFFIRMED.
APPEARING FOR APPELLANT: EMANUEL DIAZ, pro se, Bronx, NY.
FOR APPELLEE: STEVE S. EFRON, New York, NY.
PRESENT: JOSEPH M. McLAUGHLIN, JOSÉ A. CABRANES, ROBERT D. SACK, Circuit Judges.
Plaintiff-appellant Emanuel Diaz appeals pro se from the District Court's (1) October 4, 2006 order dismissing his suit following a jury verdict in favor of defendant and (2) November 3, 2006 order denying Diaz's motion to amend the record on appeal to include a statement that the District Court made when denying defendant's motion for judgment as a matter of law. We assume the parties' familiarity with the facts and the procedural history of the case.
"We liberally construe pleadings and briefs submitted by pro se litigants . . . reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007). Here, Diaz appears to contend that the judgment of the District Court should be reversed because the District Court erred by (1) not fully explaining the February 3, 2004 mandate and summary order whereby this Court reversed the District Court's grant of summary judgment in favor of defendant and remanded Diaz's case for trial; (2) admitting EEOC findings about Diaz's claims but instructing the jury that these were not binding on the jury; and (3) permitting defendant to submit Diaz's college transcripts and medical records into evidence. Diaz also states that he feels "insulted and degraded" by the District Court's statement, made outside the presence of the jury, that Diaz was "obsessed with this case" and "needs to move on."
None of the alleged errors upon which Diaz bases this appeal appear to have been raised by Diaz or his counsel at trial. Accordingly, we review these claims for plain error. See Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 142 (2d Cir. 2007) ("When a party has failed to preserve an argument, we will entertain it only if the alleged error is `fundamental.'"); Fed.R.Civ.P. 51(d)(2) (setting out standard for review of an error in the instructions given to a jury when the issue "affects substantial rights" but "has not been preserved"). Because the record reflects that the District Court properly informed the jury as to "the essential elements of [Diaz's] cause of action," see Girden v. Sandals Int'l, 262 F.3d 195, 203 (2d Cir. 2001), we do not detect any plain error in the jury instructions given by the District Court. Nor does Diaz's challenge to defendant's use of his college transcripts and medical records appear to have any merit in light of the fact that Diaz himself introduced the issue of his (1) educational credentials and (2) physical and mental suffering.
Finally, we note that Diaz takes out of context the District Court comment to which he objects, and which he seeks to have included in the Record on Appeal. The complained-of comment was part of a longer statement explaining the District Court's reasons for denying defendant's motion for judgment as a matter of law and seeking to prepare Diaz for the possibility of an unfavorable jury verdict. Because this statement was made outside the presence of the jury, we cannot say that the District Court's comment — which, admittedly, could have been far better phrased — prejudiced the jury's resolution of Diaz's case. Cf. Vaught v. Childs Co., 277 F.2d 516, 518 (2d Cir. 1960) (determining that the appellant was not prejudiced by a "colloquy in which the court expressed its view concerning probative value" of certain evidence when the court had made these comments outside the presence of the jury and "[w]hen the jury returned, . . . handled the question with fair comment and tact"). Accordingly, we decline to reverse the District Court's order of November 3, 2006.
Having carefully considered all of Emanuel Diaz's remaining arguments and having found them to be without merit, we hereby AFFIRM the judgment of the District Court.