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January 26, 1995

INTERPOOL LIMITED, Plaintiff, against BARRY PATTERSON, et al., Defendants.

The opinion of the court was delivered by: LEWIS A. KAPLAN

 KAPLAN, District Judge.

 This is an action for alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), common law fraud, and breach of fiduciary duty against eight individual and corporate defendants.

 In brief summary, Interpool Ltd., a publicly held company engaged in the intermodal equipment leasing business, *fn1" claimed that Barry Patterson and Richard Cuneo, two of its former sales agents, each of whom had been charged with selling used shipping containers on Interpool's behalf, used their positions to enrich themselves at Interpool's expense by selling Interpool's equipment to companies in which they had undisclosed interests and appropriating to such companies leasing opportunities that belonged to Interpool. The other six defendants consisted of an individual whom they allegedly recruited into the scheme and five corporations in which one or all three of the individual defendants had interests.

 The jury found that defendants had committed violations of 18 U.S.C. §§ 1962(c) and (d) and common law fraud, that Cuneo and Patterson had breached their fiduciary duties to Interpool, and that the other defendants had aided Cuneo and Patterson in those breaches. Judgment was entered on the verdict against all defendants, jointly and severally, in the aggregate amount of $ 4,370,000 for compensatory damages. In addition, the jury awarded punitive damages on the state law claims against Cuneo, Patterson and defendant George Novo in the aggregate amounts of $ 150,000, $ 30,000 and $ 15,000, respectively, and judgment was entered against each of them, severally, for those amounts. The Court subsequently awarded plaintiff attorneys' fees pursuant to 18 U.S.C. § 1964 in the amount of $ 299,805.18 and prejudgment interest on the state law recoveries.

 The matter now is before the Court on the motion of defendants Richard Cuneo, Genco Associates, Inc. ("Genco"), and Container Options, Inc. (collectively, the "Cuneo Defendants") for a new trial pursuant to Rule 59.

 The Motion for a New Trial

 The Cuneo Defendants seek a new trial on several grounds.

 Dismissal of Trial Juror

 Juror no. 8 was excused on the seventh day of trial, prior to the close of the evidence. He had indicated during jury selection that he had a commitment to make an important business trip in the future, but he was not challenged either for cause or peremptorily. That was understandable, as the parties then estimated that the trial would be completed prior to the date of the projected trip.

 The trial took longer than anticipated. Among other things, it was suspended for a day to accommodate a personal request of counsel for the Cuneo Defendants. As the date of juror no. 8's trip approached, he asked to be excused, essentially on grounds of hardship. The Court consulted with the parties, examined the juror in their presence, and initially declined to excuse him. (Tr. 915-22) The juror, however, became quite upset. It became apparent from his behavior in the courtroom -- which included audible sighs, restlessness, and inattention to the evidence -- that the juror's preoccupation with his personal concerns was so great that he was unlikely to fulfill his responsibilities as a juror in an appropriate manner. His demeanor suggested also that his presence would adversely affect deliberations. The Court therefore excused him over defendants' objections. (Tr. 1010-11, 1065-71)

 Fed. R. Civ. P. 47(c) provides that "the court may for good cause excuse a juror from service during trial or deliberation." Nevertheless, the Cuneo Defendants assert that the reasons for excusing the juror are not within Rule 47(c) and that the Court's action therefore was improper as a matter of law. (Flicker Aff. P 4) This aspect of the motion is denied for two reasons.

 First, some time after the Court's initial refusal to excuse the juror, plaintiff's counsel, who initially had objected to excusal, voiced concern about the juror's reaction. Counsel for the Cuneo Defendants responded, "I don't want to take a position. It's your [the Court's] call." (Tr. 1010) Later, when the Court indicated at the sidebar that it would excuse the juror, counsel for the Cuneo Defendants stated, "Sir, if I may, if that's your decision, fine." (Tr. 1065) Although the Cuneo Defendants thereafter objected to excusing the juror (Tr. 1066-67, 1069-70), their counsel did not suggest that the Court lacked the power to take that action as a matter of law. Having thus taken the position that the matter was committed to the Court's discretion, the Cuneo Defendants will not be heard to argue otherwise.

 Second, the contention that the Court lacked power to excuse the juror for these reasons is incorrect. The Advisory Committee note to the 1991 amendment to Rule 47, which added paragraph (c), states that the "provision makes it clear that the court may in appropriate circumstances excuse a juror during deliberations without causing a mistrial." It gives sickness, family emergency and juror misconduct as examples of appropriate reasons, but does not purport to be exhaustive. A fortiori, a juror may be excused prior to deliberations on these and analogous grounds. Moreover, the case law under Fed. R. Crim. P. 24(c) establishes that the determination of whether to excuse a juror, either during trial or deliberations, lies within the discretion of the trial court. E.g., United States v. Simpson, 301 U.S. App. D.C. 203, 992 F.2d 1224, 1227-28 (D.C. Cir.), cert. denied sub nom. Simpson v. United States, 126 L. Ed. 2d 236, 114 S. Ct. 286 (1993) (illness); United States v. Gambino, 951 F.2d 498, 502-03 (2d Cir. 1991), cert. denied sub nom. D'Amico v. United States, 112 S. Ct. 1962 (1992) (lateness, inattention, and family commitments); United States v. Smith, 918 F.2d 1501, 1511-12 (11th Cir. 1990), cert. denied sub nom. Hicks v. United States, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 151 (1991) (juror vacation). The hardship or inconvenience imposed upon a ...

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