Opinion
Civil Action 14-3393
07-26-2022
THE ESTATE OF DR. RICHARD LIEBERMAN, Plaintiff, v. PLAYA DULCE VIA, S.A., Defendant.
MEMORANDUM
EDUARDO C. ROBRENO, J.
Table of Contents
I. INTRODUCTION .............................................. 2
II. BACKGROUND ................................................ 3
III. LEGAL STANDARDS ......................................... 8
IV. DISCUSSION ............................................... 11
A. PDV's Motion for Post-Trial Relief ....................... 11
1. Plaintiff's Rental Pool Payment Claim .................. 12
2. Plaintiff's Claim for Deprivation of Use of the Unit ... 19
3. Conversion and Punitive Damages ........................ 22
4. Plaintiff's Standing ................................... 24
5. Failure to Join Indispensable Parties .................. 24
6. Statute of Limitations ................................. 29
7. The Court's Refusal to Instruct the Jury on PDV's Laches Defense ................................................... 30
8. The Court's Denial of PDV's Motion to Strike the Testimony of Plaintiff's Expert ..................................... 32
B. Plaintiff's Motions to Amend the Judgment and for Costs and Interest .................................................... 37
1. Prejudgment Interest ................................... 37
2. Post-judgment Interest ................................. 39
3. Costs .................................................. 41
V. CONCLUSION ............................................... 42
I. INTRODUCTION
The Estate of Richard Lieberman (“Plaintiff”) brings this action against Defendant Playa Dulce Vida, S.A. (“PDV”), a Costa Rican corporation.
Following a five-day jury trial, the jury returned a verdict in favor of Plaintiff in the amount of $2,468,699. Thereafter, the Court entered judgment in favor of Plaintiff in the amount of the verdict.
The parties' post-trial motions are now before the Court. For the reasons set forth below, PDV's motion for post-trial relief will be granted in part and denied in part. Pursuant to that motion, the Court will grant judgment as a matter of law in favor of PDV on Plaintiff's claim for breach of contract based on the use of the unit. The award of compensatory damages set forth in the judgment in the amount of $2,468,699 will therefore be reduced by $695,000. The Court will deny all other relief requested in PDV's motion.
In turn, the Court will grant in part and deny in part Plaintiff's motions to amend/correct the judgment and for costs and interest. The Court will deny Plaintiff's request for prejudgment interest, grant Plaintiff's request for postjudgment interest, and award costs of $3,376.08.
Therefore, the judgment in this case will be amended to award Plaintiff $1,777,075.08, consisting of $1,773,699 in compensatory damages and $3,376.08 in statutory costs, plus post-judgment interest in accordance with 28 U.S.C. § 1961.
II. BACKGROUND
PDV is a corporation organized and existing under the laws of Costa Rica. PDV owns and operates the Arenas Del Mar Beachfront and Rainforest Resort (the “Resort”) in Costa Rica.
In 2004, Richard Lieberman purchased twenty-five preferred shares in Defendant PDV. The purchase entitled Lieberman to the usage, enjoyment, ownership, and disposal of two conjoined units at the Resort. As a part of his purchase, Lieberman also signed a Rental Pool Agreement, which required him to place the units into the Resort's “rental pool” for a minimum of 274 days per year. During that “rental pool” period, Defendant maintained the exclusive ability to rent the units in the rental pool to the public. Lieberman maintained the right to use the unit for the remaining ninety-one days of the year, provided that only twenty-one of those ninety-one days could occur during the period between November 30th and May 1st of each year.
Lieberman passed away on April 13, 2021, of causes unrelated to this action. The Court subsequently substituted his Estate as Plaintiff in this case.
The Rental Pool Agreement further provides that Lieberman, as a preferred shareholder, would receive his share of “60% of the net income generated from the rental income of the apartments combined.” Third Am. Compl. ¶ 52, ECF No. 181. Net income was defined as
the sum total income calculated after the deduction of credit charges, insurance policies, institutional deductions, commissions to travel agents and tour operators, costs of discounts as a result of exchanges, municipal and other (government taxes), as well as the cost to maintain and operate the rental facilities, including operating personnel, maintenance in general, gardeners, service of maids, electric power, water, and telephone, security and repairs, whose cost shall be deducted from the income to be distributed.Id. Defendant also agreed to distribute the net income from the “rental pool” within sixty days after the closing of the fiscal period along with an accounting statement. Id. ¶ 59.
On June 10, 2014, Lieberman filed the initial complaint in this case alleging, inter alia, that PDV had breached the Rental Pool Agreement by failing to pay rental pool income distributions and failing to provide audited financial statements for certain fiscal years. Lieberman also alleged that PDV had breached the Rental Pool Agreement by refusing him access to the unit on several occasions. After the motion to dismiss and summary judgment stages, Plaintiff's claims against PDV for breach of contract, conversion, and promissory estoppel remained in the case to be adjudicated at trial.
On November 4, 2019, trial commenced in this case. On the second day of trial, Lieberman was called as a witness and sought to testify as to Defendant's financial records. The Court determined, sua sponte, that its ruling on a prior motion in limine, which held that no expert was required to evaluate the contractual impropriety of certain deductions in PDV's financial statements, was in error and that expert testimony pursuant to Federal Rule of Evidence 702 was required. The Court accordingly declared a mistrial and directed the parties to obtain expert witnesses.
Trial commenced once more on November 15, 2021. At trial, Plaintiff's expert, Stephen Scherf, testified as to the amount of damages to which Plaintiff would be entitled should the jury find PDV liable for breach of contract as to Rental Pool payments. Scherf presented three different damage calculations, each based on a distinct outcome that would be reached depending on the jury's determination of whether PDV breached the contracts and whether Lieberman's proportionate share of the total number of preferred shares increased at certain times.
PDV elected not to call its expert to testify at trial.
Scherf's first calculation assumed that Lieberman's proportional share of total preferred shares remained at 4.81% throughout the entire damage period, and arrived at a total damages figure of $157,352. The second scenario assumed that Lieberman's share of preferred shares increased from 4.81% to 33.3% after 2010, and arrived at a damages total of $1,049,219. Scherf's third scenario assumed that Lieberman's share increased from 4.81% to 33.3% after 2013, and calculated a damages total of $735,484. The potential increase of Lieberman's proportional share over time was based on two PDV documents Scherf identified in his testimony at trial. The first is a 2011 letter from PDV to preferred shareholders which offered them the choice to retain their preferred shares or exchange them for common stock. The second is a private placement memorandum dated October 14, 2014, which stated that “[a]s of the date of this Offering Memorandum, we have 75 shares of Preferred Stock issued and outstanding.” Pl's Tr. Ex. 3 at 15. PDV disputed the accuracy of the private placement memorandum at trial and claimed that, at all times relevant to this case, there were 520 outstanding preferred shares.
The expert report Scherf produced prior to trial also briefly addressed Plaintiff's claim for damages based on PDV allegedly depriving Lieberman of the use of the unit. Scherf wrote in the report that “Dr. Lieberman has been deprived the economic value of his investment in the 25 preferred shares in the amount of $415,000, which included the use of unit #603. Therefore $415,000 must also be included in Dr. Lieberman's damages.” Pl's Tr. Ex. 57 at 7. In response to the report, PDV filed a motion in limine to preclude Scherf from offering expert testimony related to damages based on the purchase price of Lieberman's shares in PDV. The Court granted the motion.
At trial, Scherf testified that he was not asked to opine in any way on Plaintiff's request for $415,000, which represented the purchase price of the preferred shares, in connection with Plaintiff's unit usage claim. Susan Landis Lieberman, Lieberman's wife, also testified that Plaintiff was seeking, in addition to its fair share of the rental pool income, $415,000 on the basis that she and Lieberman had “been deprived usage” of the unit. Transcript of Trial 11/16/2021, 50:23-51:2, ECF No. 223.
At the conclusion of the trial, the jury was instructed on Plaintiff's claims for breach of contract and conversion.Plaintiff's conversion claim was presented as an alternative theory of liability to its claim for breach of contract. In other words, the jury was instructed to consider whether PDV was liable for conversion only if it first determined that it was not liable for breach of contract.
Plaintiff agreed to withdraw its private nuisance claim prior to jury instruction. See Transcript of Trial on 11/18/21 at 92:19-93:5, ECF No. 225. The Court declined to instruct the jury on Plaintiff's promissory estoppel claim, given that the existence of a contract between the parties was not subject to dispute. See Transcript of Trial on 11/19/21 at 6:10-7:11, ECF No. 226.
The jury returned a verdict in Plaintiff's favor and awarded Plaintiff $1,773,699 in compensatory damages related to rental pool income and $695,000 in damages related to the usage of Plaintiff's unit.
Plaintiff now seeks to amend the judgment to add statutory costs as well as prejudgment and post-judgment interest. PDV moves for judgment as a matter of law, a new trial, or an order amending the judgment.
III. LEGAL STANDARDS
A. Renewed Motion for Judgment as a Matter of Law
In the aftermath of a jury trial, a court may grant a motion for judgment as a matter of law if it determines that there was no “legally sufficient evidentiary basis for a reasonable jury to have found for a particular party on an issue,” and that, without a favorable finding on that issue, the party cannot maintain his claim under controlling law. Fed.R.Civ.P. 50(a)(1). In determining whether to grant judgment as a matter of law, the court “must view the evidence in the light most favorable to the non-moving party, and determine whether the record contains the ‘minimum quantum of evidence from which a jury might reasonably afford relief.'” Glenn Distribs. Corp. v. Carlisle Plastics, Inc., 297 F.3d 294, 299 (3d Cir. 2002) (quoting Mosley v. Wilson, 102 F.3d 85, 89 (3d Cir. 1996)). Indeed, a court may grant judgment as a matter of law “only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability.” LePage's Inc. v. 3M, 324 F.3d 141, 145-46 (3d Cir. 2003) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).
In this endeavor, “[t]he court may not weigh evidence, determine the credibility of witnesses or substitute its version of the facts for that of the jury.” Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 691 (3d Cir. 1993), overruled on other grounds by United Artists Theatre Cir., Inc. v. Twp. of Warrington, PA, 316 F.3d 392 (3d Cir. 2003). Rather, the Court may grant a Rule 50 motion only “if upon review of the record it can be said as a matter of law that the verdict is not supported by legally sufficient evidence.” Id. at 691-92; see also LePage's, 324 F.3d at 145-46 (“[R]eview of a jury's verdict is limited to determining whether some evidence in the record supports the jury's verdict.”); Glenn Distribs., 297 F.3d at 299 (stating that “[t]he standard for granting summary judgment under Rule 56 ‘mirrors the standard for a directed verdict under [Fed. R. Civ. P.] 50(a)'”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).
Upon the renewed motion of a party, Rule 50(b) allows the trial court to enter judgment as a matter of law at the conclusion of a jury trial notwithstanding a jury verdict for the opposing party. Such judgment may be entered under Rule 50(b) “only if, as a matter of law, the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief.” Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001) (quoting Powell v. J.T. Posey Co., 766 F.2d 131, 133 (3d Cir. 1985)) . In deciding whether to grant this “sparingly invoked remedy,” the court must “refrain from weighing the evidence, determining the credibility of witnesses, or substituting [its] own version of the facts for that of the jury.” Marra v. Phila. Housing Auth., 497 F.3d 286, 300 (3d Cir. 2007) (citation omitted).
B. Rule 59(a) Motion for a New Trial
“The court may, on motion, grant a new trial on all or some of the issues ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court....” Fed.R.Civ.P. 59(a)(1). The decision whether to grant a new trial following a jury verdict is within the discretion of the district court, although such requests are disfavored. See Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991).
The Court's inquiry in evaluating a motion for a new trial on the basis of trial error is twofold. It must first determine whether an error was made in the course of the trial, and then it must determine “whether that error was so prejudicial that refusal to grant a new trial would be inconsistent with substantial justice.” Farra v. Stanley-Bostitch, Inc., 838 F.Supp. 1021, 1026 (E.D. Pa. 1993) (Robreno, J.) (internal citations and quotation marks omitted); see also Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129, 133 (3d Cir. 1965) (“If the evidence in the record, viewed from the standpoint of the successful party, is sufficient to support the jury verdict, a new trial is not warranted merely because the jury could have reached a different result.”).
C. Rule 59(e) Motion to Alter or Amend the Judgment
Federal Rule of Civil Procedure 59(e) allows for “[a] motion to alter or amend the judgment.” “[A] proper Rule 59(e) motion . . . must rely on one of three grounds: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice.” In re Processed Egg Products Antitrust Litigation, 962 F.3d 719, 729 (3d Cir. 2020) (quoting Wiest v. Lynch, 71 F.3d 121, 128 (3d Cir. 2013)).
IV. DISCUSSION
A. PDV's Motion for Post-Trial Relief
PDV's motion for post-trial relief requests three distinct remedies: (1) judgment as a matter of law in its favor pursuant to Rule 50(b); (2) a new trial pursuant to Rule 59(a); and (3) an order altering or amending the judgment pursuant to Rule 59(e). Because many of PDV's arguments seek all three or two of these three remedies in the alternative, the Court will consider each of PDV's arguments in turn and then determine the relief to which PDV is entitled under each argument, if any.
1. Plaintiff's Rental Pool Payment Claim
PDV first argues that it is entitled to judgment as a matter of law, a new trial, or an order altering or amending the judgment on Plaintiff's breach of contract claim related to Rental Pool payments because Plaintiff's interpretation of the Rental Pool Agreement would lead to an absurd and unreasonable result. See generally United Refining Co. v. Jenkins, 189 A.2d 574, 580 (Pa. 1963) (rejecting a proposed interpretation of a contract that it found to be “absurd and unreasonable”). It claims that the evidence at trial established that requiring PDV to make rental pool payments prior to deducting, inter alia, mortgage expenses from the Rental Pool would lead to its default on the mortgage, “the downfall of PDV, and the end of the Lieberman's investment.” Def's Mot. at 5-6, ECF No. 233.
As an initial matter, PDV's assertions are contradicted by the evidence presented at trial. When asked at trial what PDV would do if Plaintiffs were successful in this case, David Callan, corporate representative for PDV, testified that PDV would issue a “call for capital” to “all shareholders, preferred and common.” Transcript of Trial on 11/18/21 at 149:15-150:2, ECF No. 225. This admitted ability to issue a capital call to pay expenses, which was permitted under Article 10(b) in annex B to the preferred shareholders' agreement, casts significant doubt on PDV's assertion that the interpretation of the Rental Pool Agreement advanced by Plaintiff and accepted by the jury would necessarily lead to a default on PDV's mortgage.
Moreover, even assuming that Plaintiff's interpretation of the agreement would result in PDV defaulting on its mortgage obligations, the Court disagrees that this interpretation is so “absurd and unreasonable” that it must be rejected as a matter of law. PDV's mortgage and Rental Pool Agreement represent distinct contractual obligations to distinct parties. Defendants cite no authority, and the Court is aware of none, that suggests that an obligor's promised compliance under one contract is excused when, in order to comply with that obligation, he would be forced to breach another financial but unrelated obligation. Accordingly, the Court will decline to afford PDV any relief on these grounds.
PDV next argues that it is entitled to judgment as a matter of law, a new trial, or an order altering or amending the judgment on Plaintiff's Rental Pool payment claims because Plaintiff has not suffered any damages. The basis for this argument is Callan's testimony that PDV would issue a capital call to shareholders-including Plaintiff-to cover any damages awarded by the jury. Because PDV would request capital from Plaintiff to pay Plaintiff's own damages, it argues that the award creates a “zero-sum gain” for Plaintiff. Def's Mot. at 7, ECF No. 233. But even assuming this argument is legally sound, Callan's testimony plainly established that any capital call would be issued to all shareholders, both preferred and common. Plaintiff would therefore only be responsible for a proportional share of the capital call, not the entire amount of damages owed. Therefore, PDV's argument that Plaintiff has not established damages has no basis in the facts of this case.
PDV also argues that it is entitled to judgment as a matter of law, a new trial, or an order altering or amending the judgment on Plaintiff's Rental Pool claim because the record “is deficient of a minimum quantity of evidence from which a jury might reasonably award the $1,773,699 in relief the Jury granted on Plaintiff's Rental Pool claim[.]” Def's Mot. at 8, ECF No. 233. PDV points out that even the highest calculation of damages scenarios offered by Plaintiff's expert was $1,049,219, which is significantly lower than the jury's award on the rental pool payment claim. PDV further argues that Plaintiff's position that the Liebermans' proportional share of preferred shares changed over time, which was accepted by the jury, is not supported by the evidence at trial.
The Court will first consider whether the jury's implicit finding that Lieberman's proportional share of preferred shares increased over time is supported by the evidence. At trial, Plaintiff presented both the 2011 letter to preferred shareholders offering them a chance to exchange shares for common stock and the 2014 private placement memorandum which stated that PDV had “75 shares of Preferred Stock issued and outstanding.” Pl's Tr. Ex. 3 at 15. PDV calls this evidence “speculative and unconfirmed,” and points out that its Costa Rican corporate counsel testified at trial that the document was never formally adopted and was “severely flawed.” Def's Mot. at 10, 32 n.5, ECF No. 233. However, for the purposes of a motion for judgment as a matter of law, the Court must “refrain from weighing the evidence.” Marra, 497 F.3d at 300. Thus, making no judgment as to the credibility of this evidence, there was evidence presented at trial to support Plaintiff's contention that Lieberman owned 4.81% of preferred shares through 2010 and 33.3% thereafter. Under this view of the evidence, which is appropriate at this stage of the proceeding, the damages award is supported up to $1,049,219, the highest calculation to which Scherf testified.
The Court will next consider whether the $724,480 difference between Scherf's highest calculation and the jury's award on Plaintiff's Rental Pool payment claim is supported by the evidence presented at trial. Scherf testified at trial that he calculated Rental Pool net income by starting with room revenues as reported in the audited financial statements and then deducting direct costs associated with generating room revenues, operating and administrative expenses, advertising/marketing expenses, and sales expenses. Transcript of Trial on 11/17/21 at 103:6-104:7, ECF No. 224. Scherf did not deduct depreciation expense, financial expenses, or income taxes. However, at trial, David Callan, PDV's corporate representative, testified regarding a number of other payments, which were not explicitly discussed during Scherf's expert testimony but appeared in PDV's audited financial statements, made from PDV to third parties. These payments included a $450,000 “reimbursement to preferred shareholders” in 2012, a $110,000 long-term loan repayment to Callan in 2013, a $695,000 payment to a preferred shareholder which was made in 2014 in order to avoid litigation against PDV, $300,000 in payments to Callan and another member of the board of directors in 2015,$611,714 in “related party transactions” in 2016, and $576,711 in “related party transactions” in 2017.
The Rental Pool Agreement defines net income as follows:
Net income is the sum total income calculated after the deduction of credit charges, insurance policies, institutional deductions, commissions to travel agents and tour operators, costs of discounts as a result of exchanges, municipal and other (government) taxes, as well as the cost to maintain and operate the rented facilities, including operating personnel, maintenance in general, gardeners, service of maids, electric power, water and telephone, security and repairs, whose costs shall be deducted from the income to be distributed.Pl's Tr. Ex. 8 at 1.
Transcript of Trial on 11/16/21 at 198:3-200:5, ECF No. 223; see also Pl's Tr. Ex. 15 at 6.
Transcript of Trial on 11/16/21 at 203:20-204:13.
Transcript of Trial on 11/17/21 at 75:5-8.
Transcript of Trial on 11/16/21 at 209:8-210:7. PDV's audited financial statements for 2015, which were admitted at trial, reported a total of $337,784 in “related party transactions.” Pl's Tr. Ex. 17 at 21.
Transcript of Trial on 11/17/21 at 22:23-24.
Id. at 35:21-36:1.
Given that these “related party transactions” are not explicitly enumerated in the permissible deductions in calculating net Rental Pool income as set forth in the Rental Pool Agreement, the jury was free to determine that some or all of these transactions should not have been deducted before calculating net income. And because the jury implicitly accepted Plaintiff's argument that Lieberman's proportional share of preferred shares increased to 33.3% after 2010, it was also free to award Plaintiff a 33.3% share of whatever amount of these payments it determined should have been included in PDV's calculation of net Rental Pool income.
PDV argues that the jury was not free to include these “related party transactions” in their calculation of net income because it claims that since the start of this case, Plaintiff's theory of damages has been based on an alleged improper deduction of three specific expenses from net Rental Pool income: debt service expense, depreciation, and capital expenditures. However, nothing in the jury instructions or verdict sheet limited the jury to consider only these challenged deductions when calculating damages, and PDV did not object to the Court's instructions or verdict sheet in this regard. Therefore, contrary to PDV's argument, it was within the jury's discretion to consider all trial testimony regarding PDV's financial statements in its calculation of damages based upon net Rental Pool income and give it such weight as it deemed appropriate.
PDV advances this argument for the first time in a reply brief filed along with motion for leave to file a reply, which Plaintiff opposes as improper. However, since Plaintiff's explanation of damages including these third-party transactions was first included in its response to PDV's posttrial motion, the Court will grant PDV's motion for leave to file a reply and consider the reply brief to allow PDV to respond to this novel argument.
Because a 33.3% share of the aggregate amount of these related party transactions exceeds the $724,480 difference between Scherf's highest calculation and the jury's award of damages for Plaintiff's rental pool payment claim, there was evidence presented at trial that can support the amount awarded on this claim. The Court therefore cannot say that the jury's award on this claim is “not supported by the evidence” or “shocks the conscience” as PDV argues. Def's Mot. at 11, 30, ECF No. 233. The Court will accordingly decline to afford PDV any post-trial relief as to Plaintiff's Rental Pool payment claim. See Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989) (“For the court to disturb a jury verdict, ‘the damages assessed by the jury must be so unreasonable as to offend the conscience of the [c]ourt.'”) (quoting Murray v. Fairbanks Morse, 610 F.2d 149, 152 (3d Cir. 1979)).
2. Plaintiff's Claim for Deprivation of Use of the Unit
PDV next argues that it is entitled to a judgment as a matter of law, a new trial, or an order altering or amending the judgment as to the jury's award of damages for Plaintiff's claim that PDV breached the contract by denying Lieberman usage of the unit. It first argues that it is entitled to judgment as a matter of law on the unit usage claim because Plaintiff did not offer any evidence to support the jury's award for damages on this claim.
To succeed on a claim for breach of contract under Pennsylvania law, a plaintiff must establish “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract[,] and (3) resultant damages.” To prove damages, a plaintiff must give the factfinder evidence that allows it to calculate damages to a “reasonable certainty.” ATACS Corp. v. Trans World Commc'ns, 155 F.3d 659, 669 (3d Cir. 1998) (citing Scobell, Inc. v. Schade, 668 A.2d 715, 719 (Pa. Super. Ct. 1997)). Reasonable certainty is not mathematical certainty, but embraces, “at a minimum,” a “rough calculation that is not ‘too speculative, vague or contingent' upon some unknown factor.” Id. (quoting Spang & Co. v. United States Steel Corp., 545 A.2d 861, 866 (Pa. 1988)).
The parties agree that Pennsylvania law applies in this case.
Plaintiff argues that the jury's $695,000 damages award on Plaintiff's unit usage claim was based upon a different $695,000 payment PDV made to another preferred shareholder to settle a potential claim against PDV, which was mentioned in David Callan's testimony at trial. But this payment cannot possibly serve as the basis for the jury's award because, beyond the fact that the jury was presented with almost no detail about the circumstances of the payment, it bears no reasonable relation to any breach of Plaintiff's contract with PDV. It therefore cannot be used to establish “resultant damages” for the breach of Plaintiff's contract.
Nor was Plaintiff's request for $415,000 in damages pursuant to this claim supported by any evidence presented at trial. Plaintiff's damages expert offered no testimony in support of this amount, and Mrs. Lieberman admitted in her testimony that the requested damages on this claim were only based upon the original purchase price for the preferred shares. See Transcript of Trial 11/16/2021 at 92:16-21, ECF No. 223. But the original purchase price could only serve as the basis for rescission damages, which are awarded as a viable remedy only “where the parties to a contract can be restored to their original positions with regard to the subject matter of the contract.” Doppler v. Doppler, 574 A.2d 1101, 1106 (Pa. Super. Ct. 1990). Indeed, when a non-breaching party has received some benefit under the contract that cannot be returned, rescission damages are not available for any breach of the contract. See Gamesa Energy USA, LLC v. Ten Penn Center Assocs., L.P., 217 A.3d 1227, 1240-41 (Pa. 2019) (collecting cases). Because Plaintiff admittedly exercised his right under the contract to stay and use the facilities at the resort, which is a benefit he cannot return to PDV, rescission damages are unavailable in this case. Therefore, the $415,000 purchase price is not a cognizable basis for the jury's calculation of damages resulting from Plaintiff's unit usage claim.
Because Plaintiffs presented no evidence to the jury that would allow any calculation of damages resulting from PDV's breach of Lieberman's contractual right to use the unit, let alone any evidence that would have allowed the jury to calculate damages to a “reasonable certainty,” PDV is entitled to judgment as a matter of law on Plaintiff's unit usage claim. See USA Mach. Corp. v. CSC, Ltd., 184 F.3d 257, 267-68 (3d Cir. 1999) (affirming a district court decision that, applying Pennsylvania law, granted judgment as a matter of law in favor of defendants on a breach of contract claim where the plaintiff had not provided evidence upon which a jury could calculate damages to a “reasonable certainty”); Ware v. Rodale Press, 322 F.3d 218, 225-26 (3d Cir. 2003) (affirming a district court decision that, applying Pennsylvania law, dismissed a breach of contract claim prior to trial because it found that the plaintiff had failed to obtain any evidence in discovery “upon which the factfinder could base a damages calculation to a reasonable certainty”); Am. Nat'l Prop. & Cas. Co. v. Felix, 399 F.Supp.3d 324, 341-43 (W.D. Pa. 2019) (finding that the counterclaim defendant was entitled to judgment as a matter of law on an aspect of the counterclaim plaintiff's breach of contract claim because the counterclaim plaintiff had not established damages to a reasonable certainty).
Under these authorities, judgment as a matter of law in favor of PDV is the proper remedy here. Therefore, the Court need not consider PDV's alternative requests for a new trial or an order altering or amending the judgment on this claim.
3. Conversion and Punitive Damages
PDV next argues that it is entitled to a new trial on Plaintiff's Rental Pool payment claim because the Court erred in instructing the jury on Plaintiff's conversion claim and the potential punitive damages award in connection with that claim. It argues that any conversion claim should have been dismissed under the “‘gist of the action' doctrine, which operates to preclude a plaintiff from re-casting ordinary breach of contract claims into tort claims.” Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 581 (Pa. Super. 2003) (citing eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002)).
On these grounds, PDV also argues that it is entitled to judgment as a matter of law on Plaintiff's claim related to unit usage. However, the Court need not consider this argument given that, as set forth in the preceding section, PDV is entitled to judgment as a matter of law on this claim in any event.
PDV asserts that it is entitled to a new trial on Plaintiff's Rental Pool payment claim because the jury's verdict is a product of jury confusion caused by the Court's conversion instruction. But this argument is also without merit, because, as set forth above, supra Section IV.A.1, the evidence in the record is sufficient to support the jury's verdict on this claim. See Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129, 133 (3d Cir. 1965) (“If the evidence in the record, viewed from the standpoint of the successful party, is sufficient to support the jury verdict, a new trial is not warranted merely because the jury could have reached a different result.”). The Court will therefore deny PDV's motion to the extent it seeks a new trial based on the Court's conversion instruction.
4. Plaintiff's Standing
PDV next argues that it is entitled to judgment as a matter of law because Plaintiff's claims are derivative in nature, which, if true, would leave Plaintiff without standing to bring the claims. See Hill v. Ofalt, 85 A.3d 540, 548 (Pa. Super. Ct. 2014) (“[U]nder established Pennsylvania law, a shareholder does not have standing to institute a direct suit for ‘a harm [that is] peculiar to the corporation and [that is] only [] indirectly injurious to [the] shareholder.'”) (quoting Reifsnyder v. Pittsburgh Outdoor Advertising Co., 173 A.2d 319, 321 (1961)).
The Court already addressed this argument extensively in its December 27, 2016 memorandum opinion on PDV's motion for judgment on the pleadings. In that opinion, the Court found that because Plaintiff is not alleging any injury to PDV and because the benefit of any recovery would flow to Plaintiff rather than PDV, the claims are direct, not derivative. See Memorandum Opinion at 10-11, ECF No. 63. PDV offers no argument that the applicable law has changed since the Court's prior opinion was issued; therefore, the Court's reasoning still stands. Because Plaintiff's claims are direct, not derivative, Plaintiff has standing to bring the claims.
5. Failure to Join Indispensable Parties
PDV next argues it is entitled to judgment as a matter of law because Plaintiff failed to join indispensable parties to this litigation pursuant to Federal Rule of Civil Procedure 19. It points to the plaintiffs in two other actions against PDV, Kreibich v. Playa Dulce Vida, S.A., No. 14-cv-5102 (E.D. Pa.), and Trout v. Playa Dulce Vida, S.A., No. 2015-030034 (Pa. Ct. Comm. Pleas) (collectively the “absent plaintiffs”), as the “indispensable” parties that Plaintiff failed to join.
In analyzing whether the joinder of a party is compulsory under Rule 19, a district court first determines whether the absent party should be joined as a necessary party under Rule 19(a). See Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d. Cir. 2007). If the absent party is necessary, but their joinder is not feasible (i.e., it will defeat diversity of citizenship), the court next determines whether the party is indispensable under Rule 19(b). See id. When a necessary and indispensable party's joinder is not feasible, the court may dismiss the action. Fed.R.Civ.P. 19(b).
An absent party is necessary if:
(A) in the person's absence, the court cannot accord complete relief among existing parties; or
(B) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect that interest; or
(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.Fed. R. Civ. P. 19(a)(1).
PDV first argues that the absent plaintiffs are necessary because, in their absence, the Court cannot accord complete relief. This argument fails, however, because the Rule 19(a)(1)(A) inquiry focuses on whether complete relief can be afforded to existing parties to the litigation, without regard to potential relief available to outside parties. See Gen. Refractories Co., 500 F.3d at 313 (“[W]e necessarily limit our Rule 19(a)(1) inquiry to whether the district court can grant complete relief to persons already named as parties to the action; what effect a decision may have on absent parties is immaterial.”) (citation omitted). As evidenced by the fact that Plaintiff here was awarded compensatory damages by the jury, the presence of the absent plaintiffs was not required for Plaintiff to obtain complete relief on its claims.
PDV also argues that the absent plaintiffs are necessary because “a judgment entered with respect [to] Plaintiff in this pending case will affect the merits of the other two cases,” because “any ruling entered in federal court may have collateral estoppel affect[sic].” Def's Mot. at 22, ECF No. 233. However, PDV does not specify how the judgment in this case would prejudice the absent plaintiffs in their respective actions. See Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 409 (3d Cir. 1993) (“Mere presentation of an argument that issue preclusion is possible is not enough to trigger Rule 19(a)(2)(i). Rather, it must be shown that some outcome of the federal case . . . can preclude the absent party with respect to an issue material to the absent party's rights or duties under standard principles governing the effect of prior judgments.”). Because PDV has not demonstrated that the outcome in this case may preclude any of the absent plaintiffs from pursuing their rights on a material issue, its assertion that a ruling “may have collateral estoppel effect” is not enough to make the absent plaintiffs necessary parties.
PDV finally argues that the absent plaintiffs are necessary and indispensable parties because “they are co-obligees under the PDV Shareholder Agreement.” Def's Mot. at 24, ECF No. 233 (citing Dickson v. Murphy, 202 Fed.Appx. 578, 580 (3d Cir. 2006) (“[C]o-obligees usually are indispensable parties.”). PDV does not specify which contract is the “PDV Shareholder Agreement,” but it cites to four of Plaintiff's trial exhibits: (1) the Reciprocal Promise of Purchase and Sale; (2) Annex A, titled “Rental Pool Agreement;” (3) Annex B, titled “Regulations for Use of the Tourism Complex;” and (4) Annex C, titled “Purchase/Sale Contract for Shares.” Pl's Tr. Exs. 7, 8, 9, 10. PDV does not attach any agreement from the absent plaintiffs' cases.
PDV has not established that Plaintiff and the absent plaintiffs are co-obligees under any contract. None of the agreements it cites is signed by either of the absent plaintiffs. Furthermore, under the agreements at issue in this case, only Mr. and Mrs. Lieberman were entitled to the benefits from the specific unit they purchased. Because the benefits to which each plaintiff is entitled under their respective agreements differ from plaintiff to plaintiff, PDV has not pointed to any joint promise between it and any of the plaintiffs which would group them together as co-obligees. PDV has accordingly failed to demonstrate that the absent plaintiffs are necessary parties to this action. Because the Court finds that the absent plaintiffs are not necessary parties, it need not consider whether joinder is feasible or whether they are indispensable parties.
PDV also argues that joinder will “conserve judicial resources and prevent needless and splintered litigation,” and that the chance of “different and conflicting judgments” in the absent plaintiffs' cases will cause “enormous confusion.” Def's Mot. at 23, ECF No. 233. Even to the extent this argument is related to the test under Rule 19(a)(1), it is not rooted in the reality of these cases. Given that a jury trial has already been completed in this case, granting judgment as a matter of law here would not conserve any judicial resources whatsoever. Moreover, the fact that differing results are possible in each plaintiff's case does not make the absent plaintiffs necessary parties to this action. Each plaintiff alleges breach of a contract made between that plaintiff and PDV; the fact that PDV may have breached one contract but not another does not necessarily raise a possibility of conflicting judgments or inconsistent obligations.
6. Statute of Limitations
PDV next argues that it is entitled to a new trial because Plaintiff's claims are barred by Pennsylvania's four-year statute of limitations for breach of contract claims. When exactly Plaintiff's claims accrued for limitations purposes turns on the application of the discovery rule, which “tolls the accrual of the statute of limitations when a plaintiff is unable, ‘despite the exercise of due diligence, to know of the injury or its cause.'” Mest v. Cabot Corp., 449 F.3d 502, 510 (3d Cir. 2006) (quoting Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983)). “[W]hether a plaintiff has exercised reasonable diligence is generally a factual question reserved for the jury[.]” Id. at 512.
The Court addressed this argument in connection with a motion for summary judgment in 2016, finding that “factual questions remain[ed] concerning [Rental Pool] distributions that should have been paid in 2008 and 2009.” Memorandum at 18, ECF No. 63. And at trial, the jury was instructed on PDV's statute of limitations argument and directed to “decide if the lawsuit was filed within four years of the date from which Dr. Lieberman should have reasonably discovered the injury and its cause[.]” There was evidence in the record to support a finding that the Liebermans exercised reasonable diligence and still did not discover the injury at issue in this case until 2011. See, e.g., Transcript of Trial on 11/15/2021 at 103:17-104:25, ECF No. 222. Because the jury was properly instructed about the statute of limitations defense, and their decision was supported by the evidence presented at trial, PDV is not entitled to a new trial on these grounds.
7. The Court's Refusal to Instruct the Jury on PDV's Laches Defense
PDV next argues that it is entitled to a new trial because the Court erred in refusing to instruct the jury on PDV's laches defense. “Under Rule 59(a), a District Court has the discretion to grant a new trial on claims of . . . erroneous jury instructions when it finds that those errors are substantial.” Taha v. Bucks Cnty. Pennsylvania, 408 F.Supp.3d 628, 638 (E.D. Pa. 2019) (quoting Murray v. Ennis, 523 Fed.Appx. 901, 902 (3d Cir. 2013)). “While jury instructions must fairly and adequately submit[] the issues in the case to the jury, a trial judge has broad discretion concerning the particular language used in a jury instruction.” Id. (quoting Tigg Corp. v. Dow Corning Corp., 962 F.2d 1119, 1124 (3d Cir. 1992)).
PDV also argues that the Court erred in refusing to instruct the jury on the Lieberman's duty to mitigate damages in connection with Plaintiff's unit usage claim. However, because the Court will grant judgment as a matter of law in PDV's favor on this claim, see supra Section IV.A.2, it need not consider the merits of this argument.
Even if the Court's refusal to instruct the jury on PDV's laches defense was an error, such error is not substantial enough to warrant granting a new trial. The equitable doctrine of laches “bars relief when a complaining party is guilty of want of due diligence in failing to promptly institute an action to the prejudice of another.” Stilp v. Hafer, 718 A.2d 290, 292 (Pa. 1998). Because the jury was instructed to consider Plaintiff's diligence in investigating and bringing its claims in connection with PDV's statute of limitations defense, and given that the jury necessarily found that Plaintiff's claims were not barred by the statute of limitations, there is nothing in the record to indicate that any failure to instruct on laches was “so prejudicial that refusal to grant a new trial would be inconsistent with substantial justice.” Farra v. Stanley-Bostitch, Inc., 838 F.Supp. 1021, 1026 (E.D. Pa. 1993) (Robreno, J.) (internal citations and quotation marks omitted). Indeed, when the Court asked PDV's counsel how its laches defense differed from its statute of limitations defense, counsel stated “if I had to pick between the two, I would take statute of limitations over the laches.” Transcript of Trial on 11/19/21 at 9:9-12. Because PDV has still not articulated a material difference between its laches defense and its statute of limitations defense-on which the jury was instructed-the Court finds that it is not entitled to a new trial on these grounds.
8. The Court's Denial of PDV's Motion to Strike the Testimony of Plaintiff's Expert
PDV finally argues that it is entitled to a new trial because the Court erred in denying its motion to strike the testimony of Plaintiff's damages expert, Stephen Scherf. Federal Rule of Evidence 702 tasks the trial judge with “ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). “Rule 702 embodies three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability, and fit.” Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1994)).
PDV challenges only the reliability of Scherf's testimony. A court's inquiry into the reliability of an expert's methodology is “a flexible one.” Daubert, 509 U.S. at 594. Courts consider several factors when determining whether an expert's methodology is reliable, including
(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.Paoli R.R. Yard PCB Litig., 35 F.3d at 742 n.8.
PDV first argues that Scherf's testimony should have been stricken because Scherf merely “parroted” Plaintiff's theory of the case for the purposes of his expert opinion. In support, it cites a number of cases from various jurisdictions that suggest that such “parroting” is generally not permissible under Rule 702. But this argument is not supported by Scherf's testimony. When asked directly on cross examination how he arrived at his interpretation of the contracts, Scherf stated that in evaluating Plaintiff's argument he not only read the contract to form an opinion himself, but also had four other people in his office independently read the contract and offer their opinion as to whether they agreed with Plaintiff's theory. See Transcript of Trial on 11/17/21 at 143:1-11, ECF No. 224. Only after he and the others agreed that Plaintiff's theory of the contract was correct did Scherf accept to serve as Plaintiff's expert. Under these circumstances, PDV's assertion that Scherf relied blindly on (or “parroted”) Plaintiff's theory of the case is plainly unsupported by the record.
See Def's Mot. at 38-39, ECF No. 233 (citing Loeffel Steel Prods. v. Delta Brands, 387 F.Supp.2d 794, 824 (N.D. Il. 2005); King-Indiana Forge, Inc. v. Millennium Forge, Inc., No. 1:07-cv-00341, 2009 WL 3187685, at *2 (S.D. Ind. Sept. 29, 2009); Higgins v. Koch Dev. Corp., No. 11-cv-81, 2013 WL 6238650, at *5 (S.D. Ind. Dec. 3, 2013); Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992)).
PDV also challenges the reliability of Scherf's testimony by arguing that he “confirmed that the damages he presented had nothing to do with GAAP accounting, or any other form of generally accepted accounting principles, and that the damages he presented were in fact contrary to generally accepted accounting principles.” Def's Mot. at 40, ECF No. 233. Again, this mischaracterizes Scherf's testimony. When asked whether his expert testimony complied with GAAP accounting principles, Scherf made clear that
G[A]AP is generally accepted accounting principles in the United States. I want to be clear that the financial statement of PDV, according to the auditor's report, aren't G[A]AP. They are international financial reporting standards because Costa Rica adopted the international standards. They[sic] are slight differences between the international standards and G[A]AP.Transcript of Trial on 11/17/21, 136:13-19, ECF No. 224. Scherf later reiterated several times that his opinion was meant to comply with international financial reporting standards, given that PDV's financial statements were generated in accordance with those standards. See, e.g., id. at 143:18-20. PDV has not demonstrated that the opinion does not comply with these generally accepted international standards.
PDV further argues that Scherf's testimony should have been stricken because he offered opinion on an ultimate issue in the case, namely, how the term “net income” should be interpreted in the operative contracts. However, on direct examination, Mr. Scherf made clear to the jury that his testimony was not intended to cast judgment on the merits of Plaintiff's theory, which was “for the jury to decide.” Id. at 101:20-25. It was only on cross examination, when PDV's counsel asked Scherf specifically who had offered the opinion upon which his calculations were based, that Scherf stated that he and other members of his office evaluated Plaintiff's theory and concluded that it was correct. See id. at 142:17-143:11. Scherf's opinion was provided in response to defense counsel's invitation. Having solicited it, PDV cannot now complain that Scherf offered his opinion. The Court accordingly finds that this invited answer to a question on cross-examination does not amount to an impermissible opinion on the ultimate issue in the case. See Walker v. Gordon, 46 Fed.Appx. 691, 695-96 (3d Cir. 2002) (“An expert is . . . permitted to base his opinion on a particular version of the disputed facts and the weight to be accorded to that opinion is for the jury. It is also . . . a proper subject for cross-examination).
PDV also objects to two instances in Scherf's rebuttal report in which he references the “parties' intent” and states that the report of PDV's expert is “inconsistent with what actually occurred.”). Even assuming that this wording, presented by PDV without context, is improper, there is nothing to indicate that refusing to strike Scherf's testimony on these grounds is an error “so prejudicial that refusal to grant a new trial would be inconsistent with substantial justice.” Farra, 838 F.Supp. at 1026. Scherf's rebuttal report was not admitted into evidence nor referred to in any testimony at trial.
PDV next argues that Scherf's conclusion that the number of outstanding preferred shares may have been reduced from 520 to 75 either in 2011 or 2014 is unsupported. To the contrary, Scherf made clear that he based this conclusion on a 2011 conversion letter that offered preferred shareholders the chance to convert their shares to common shares and a 2014 private placement memorandum that indicated that there were only 75 preferred shares outstanding. See Transcript of Trial on 11/17/21 at 145:12-16, ECF No. 224. Moreover, Scherf merely used these two documents to present a possible calculation of damages to the jury; but he also provided in his testimony for the possibility that the jury would not find these documents credible. The Court therefore cannot find that Scherf's testimony should have been stricken on these grounds. See Walker, 46 Fed.Appx. at 695-96 (noting that an expert is “permitted to base his opinion on a particular version of the facts” and that the weight to be accorded to that opinion is up to the jury).
In sum, PDV has not established that Scherf's expert testimony should have been stricken. The Court will accordingly deny PDV's request for a new trial on these grounds.
B. Plaintiff's Motions to Amend the Judgment and for Costs and Interest
Plaintiff's post-trial motions seek to amend the judgment to add prejudgment and post-judgment interest and statutory costs to the civil judgment in Plaintiff's favor. As set forth below, the Court will deny the request for prejudgment interest, but grant the request for post-judgment interest, and award Plaintiff $3,376.08 in costs.
1. Prejudgment Interest
In federal diversity cases, the award of prejudgment interest is governed by state law. See Yohannon v. Keene Corp., 924 F.2d 1255, 1265 (3d Cir. 1991). Pennsylvania has adopted the approach stated in section 354 of the Restatement (Second) of Contracts in determining whether prejudgment interest is warranted in a breach of contract case. See Fernandez v. Levin, 548 A.2d 1191, 1193 (Pa. 1988). Section 354 provides as follows:
(1) If the breach consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance on the amount due less all deductions to which the party in breach is entitled.
(2) In any other case, such interest may be allowed as justice requires on the amount that would have been just compensation had it been paid when performance was due.
Restatement (Second) of Contracts § 354 (Am. L. Inst. 1981).
The Pennsylvania Superior Court has stated the following regarding the award of prejudgment interest under section 354:
[Section] 354 commands that prejudgment interest is awarded as a matter of right in four limited circumstances, which all require an examination of the contract. In other words, a court examines whether the contract was to pay, or render a performance for, a monetary amount defined in the contract; render a performance for a monetary amount that can be calculated from standards set forth in the contract; or render a performance for a monetary amount calculated from the established market prices. The disputed amount must be either specified in the contract or ascertained from the terms of the contract such that at the time of the breach, the breaching party can proffer a tender. The disputed amount, in other words, must be liquiDated: the time of the breach as a prerequisite for prejudgment interest. In all other circumstances, including an award of consequential damages, prejudgment interest is awarded as a matter of discretion.Cresci Const. Servs., Inc. v. Martin, 64 A.3d 254, 264-65 (Pa. Super. Ct. 2013) (internal citations omitted).
In this case, Plaintiff is not entitled to prejudgment interest as a matter of right for PDV's breach of the contracts. The disputed amount of damages is not “specified in the contract[s],” nor is it easily “ascertained from the terms of the contract” such that PDV could have proffered a tender at the time of the breach. Id. at 265. This is evidenced by the fact that expert testimony was required to assist the jury in calculating the damages under the contract at trial. Therefore, section 354(1) of the Restatement (Second) does not apply under these circumstances.
The award of prejudgment interest in this case is left up to the Court's discretion. See id. The Pennsylvania Supreme Court has stated that the purpose of awarding prejudgment interest as damages “is to compensate an aggrieved party for detention of money rightfully due him or her, and to afford him or her full indemnification or compensation for the wrongful interference with his or her property rights.” TruServ Corp. v. Morgan's Tool & Supply Co., Inc., 39 A.3d 253, 263 (Pa. 2012) (quoting 25 C.J.S. Damages, § 80). This is not a case in which the non-breaching party was due a definite sum of money at a certain time of breach; the breach of the contracts in this case occurred over a period of several years, and Plaintiff's damages materialized year after year based on the Resort's Rental Pool income and expenses. In other words, PDV could not have owed Plaintiff the entire amount of the judgment when it first breached the contracts in 2009. PDV therefore cannot be entitled to the interest it seeks on the entire judgment amount for every year between 2009 and 2021. Because this is not a case in which prejudgment interest is necessary to fully compensate Plaintiff for the breach, the Court will decline to award discretionary prejudgment interest in this case.
2. Post-judgment Interest
The award of post-judgment interest is governed by the federal post-judgment interest statute, 28 U.S.C. § 1961. See Pierce Assocs., Inc. v. Nemours Found., 865 F.2d 530, 548 (3d Cir. 1988) (noting that issues of post-judgment interest were “governed by 28 U.S.C. § 1961 notwithstanding that this is a diversity action”); see also Talen Energy Mktg., LLC v. Aluminum Shapes, LLC, No. 19-cv-4303, 2021 WL 534467, at *5 (E.D. Pa. Feb. 12, 2021) (“As a general rule in federal cases where jurisdiction is based on diversity of citizenship, federal courts have held that post-judgment interest is governed by the federal post-judgment interest statute rather than by state law.”) (collecting cases) (quoting Allstate Ins. Co. v. Clymer, No. 93-cv-0348, 1994 WL 423875, at *2 (E.D. Pa. Aug. 11, 1994)).
Section 1961(a) states that “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961(a). The statute mandates that such interest be “calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding.” Id. Section 1961(b) requires that interest be computed “daily to the date of payment” and “compounded annually.” Id. § 1961(b).
Defendant does not oppose the imposition of post-judgment interest other than by arguing that “any imposition of post judgment interest is premature in this case because of the numerous issues raised in PDV's post-trial submissions.” Def's Opp. at 8, ECF No. 232. In light of the Court's holding that PDV is liable for $1,773,699 in compensatory damages in connection with Plaintiff's Rental Pool payment claim, PDV is liable for post-judgment interest on that claim under section 1961. The Court must therefore amend the judgment to include such postjudgment interest in order to “correct clear error of law[.]” Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013). Accordingly, Plaintiff's motions will be granted as to the imposition of post-judgment interest.
The weekly average 1-year constant maturity Treasury yield for the week prior to the entry of judgment in this case was 0.18 percent. See Market Yield on U.S. Treasury Securities at 1-Year Constant Maturity, Economic Research: Federal Reserve Bank of St. Louis, https://fred.stlouisfed.org/series/DGS1#0. Plaintiff is therefore entitled to post-judgment interest at a rate of 0.18 percent. See 18 U.S.C. § 1961(a).
3. Costs
Federal Rule of Civil Procedure 54(d)(1) entitles a prevailing party “to recover costs from the losing party unless a federal statute, the Federal Rules of Civil Procedure, or a court order ‘provides otherwise.'” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381-82 (2013). The specific costs that a prevailing party may recover are set forth in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987) (“[Section] 1920 defines the term ‘costs' as used in Rule 54(d)”). Under section 1920, the following fees may be taxed as costs:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title; (6)Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.28 U.S.C. § 1920.
Plaintiff has submitted a bill of costs totaling $5,302.02. PDV objects to Plaintiff's request of $1,925.94 for “other” costs, which include “[c]osts for delivery of documents,” “[p]arking fees,” “[m]ileage fees,” and “[r]esearch on LexisNexis.” Pl's Bill of Costs, ECF No. 230 at 3. The Court agrees with PDV that these “other” costs are not explicitly included in section 1920 and should not be awarded. See In re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 457 (3d Cir. 2000) (“[T]he types of costs recoverable under Rule 54(d)(1) are circumscribed. The ‘costs' capable of recoupment under Rule 54(d)(1) are listed in 28 U.S.C. § 1920.”). Accordingly, the Court will award Plaintiff $3,376.08 in costs rather than the requested $5,302.02.
V. CONCLUSION
For the reasons set forth above, the Court will grant PDV's motion for judgment as a matter of law on Plaintiff's claim for breach of contract based on access to or use of the unit. Therefore, the award of compensatory damages set forth in the judgment in the amount of $2,468,699 will be reduced by $695,000. All other relief requested by PDV will be denied.
The Court will grant in part and deny in part Plaintiff's motions to amend or correct the judgment and for costs and interest as follows:
• Plaintiff's request for prejudgment interest will be denied;
• Plaintiff's request for post-judgment interest pursuant to 28 U.S.C. § 1961 will be granted; and
• Costs will be awarded to Plaintiff in the amount of $3,376.08.
An appropriate order follows.