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March 29, 2001


The opinion of the court was delivered by: Richard Conway Casey, U.S.D.J.:


Plaintiff Bernt Ullman ("Plaintiff') brought this personal injury action against Defendant Starbucks Corporation ("Defendant"), alleging psychological injuries with physical consequences, in connection with an incident where Plaintiff alleges that Defendant served Plaintiff a drink that contained ground up pieces of glass. Plaintiff alleged that he ingested some of the glass, causing injuries. The trial on this matter began on April 10, 2000 and concluded on April 12, 2000. On April 12, 2000, the jury returned a verdict for Defendant, finding that Plaintiff did not suffer any injury as a result of Defendant's actions. Plaintiff now brings before the Court motions pursuant to Rules 59 and 61 of the Federal Rules of Civil Procedure to vacate the judgment entered, to set aside the jury's no damages verdict, and for a new trial, arguing that the jury's verdict was tainted and Plaintiff was denied a fair trial.

In support of his motion, Plaintiff submitted no memorandum of law whatsoever. The only submission offered in support of the motions is the affirmation of Gary S. Mayerson (the "Affirmation"), co-counsel on the case. The Affirmation makes no reference to the transcript or to relevant case law. Through this Affirmation, Plaintiff argues that he should be granted a new trial because during the trial, the Court allegedly "directly and indirectly communicated to the jury its apparent disdain for [P]laintiff, the merits of [P]laintiff's case, [P]laintiff's psychologist, and [P]laintiff's counsel, and then unduly `suggested' and thus tainted the verdict ultimately reached by the jury" by, inter alia, making disparaging remarks about Plaintiffs counsel; engaging in challenging body language, including scowling and shaking his head; reinforcing defense points during Plaintiffs counsel's questioning of witnesses; suggesting to the jury that Plaintiffs case bore no relation to reality; and acting in a hostile way towards Plaintiff and Plaintiffs psychologist. Affirmation ¶ 3(a). Plaintiff also argues that the Court failed to mitigate or investigate any potential harm resulting from Defendant's counsel's alleged use of what Plaintiff refers to as the "facially prejudicial epithet `witch doctor' within audible range of the jury during the critical testimony of plaintiffs psychologist." Id. ¶ 3(b). Plaintiff moved for a mistrial on the second day of trial, arguing essentially the exact same points, and the Court, after hearing argument, denied the motion in its entirety. Trial Transcript ("Tr.") at 181-188.

Rule 59 of the Federal Rules of Civil Procedure ("Rule 59") provides, in pertinent part, that

[a] new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States . . . .

Fed. R. Civ. Proc. 59(a). Rule 59 should be read in conjunction with Rule 61 of the Federal Rules of Civil Procedure ("Rule 61"), which provides, in substance, that a court may grant a new trial, set aside a verdict, or vacate, modify or otherwise disturb a judgment or order if the refusal to take such action is inconsistent with substantial justice. See Fed. R. Civ. Proc. 61. Rule 61 goes on to caution that "[t]he court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial justice of the parties." Id. A motion for a new trial may be granted even if the court finds that there was substantial evidence to support the jury's verdict. Bevivino v. Saydjari, 574 F.2d 676, 683 (2d Cir. 1978).

The judge reviewing the motion "is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner." Id. at 684. Here, the Court was the trial Court that heard the case, therefore, it sits in the "unique position to assess the credibility of the witnesses and to determine the weight which should be accorded their testimony." Song v. Ives Laboratories Inc., 957 F.2d 1041, 1047 (2d Cir. 1992). However, the Second Circuit has held that a "jury's credibility assessments are entitled to deference," United States v. Landau, 155 F.3d 93, 105 (2d Cir. 1998), therefore, in the normal course, a trial court should not be inclined to disturb a jury's verdict. Ricciuti v. New York City Transit Authority, 70 F. Supp.2d 300, 305-08. These principles of deference to the jury may be overridden where "the court is convinced that the jury has reached a seriously erroneous result, or that the verdict is against the weight of the evidence, making its enforcement a miscarriage of justice." Smith v. Lightning Bolt Productions Inc., 861 F.2d 363. 370 (2d Cir. 1988); Sharkey v. Lasmo, 55 F. Supp.2d 279, 289 (July 7, 1999) (citing Bevivino, 574 F.2d at 684).

The aim of Rule 59 is a narrow one, intended to permit a court to rectify its own mistakes immediately following the entry of judgment. See Greene v. Town of Blooming Grove, 935 F.2d 507, 512 (2d Cir. 1991) (citing White v. New Hampshire Dep't of Employment Sec., 455 U.S. 445, 450 (1982)). The unsuccessful party's disagreement with the court's decisions or conclusion is insufficient to obtain relief under Rule 59. Farr Man Coffee Inc. v. Chester, 1993 WL 328854, *1 (S.D.N.Y. Aug. 26, 1993) (citation omitted).

Furthermore, the standard for a new trial based on judicial misconduct is extremely high, and the moving party must demonstrate that "the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995). To determine whether there was judicial bias, a court should "examine the entire record and attempt to determine whether the conduct of the trial has been such that the jurors have been impressed with the trial judge's partiality to one side to the point that this has become a factor in the determination of the jury." United States v. Guglielmini, 384 F.2d 602, 605 (2d Cir. 1967).

Here, Plaintiff has failed to meet the standard for relief under Rule 59. Without a single citation to the trial transcript or to relevant case law, Plaintiff argues that the Court's conduct during the trial deprived Plaintiff of a fair trial. The Court has examined each allegation, and finds nothing to suggest that the Court's action or inaction affected the substantial justice of the parties so as to amount to a miscarriage of justice. See Visalli v. Grasso, 1999 WL 605703, *2-3 (W.D.N.Y. July 29, 1999); Bevivino, 574 F.2d at 684.

Questioning witnesses

"A trial judge is more than an umpire, and may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition." United States v. Scholl, 166 F.3d 964, 977 (9th cir), cert. denied, 120 S.Ct. 176 (1999) (citation omitted). Indeed, a federal judge has broad discretion in supervising trials. United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988) (finding no actual bias when the trial judge frequently limited cross-examination and verbally demonstrated his dissatisfaction with defense counsel).

Plaintiff argues, without citing to the record, that the Court made "disparaging remarks about [P]laintiff's counsel in the presence of the jury." Affirmation ΒΆ 3(i). Plaintiff also does not cite any law supporting the conclusion that this type of action on the part of the trial judge, even assuming it occurred, would warrant a new trial. This conclusury ...

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