The opinion of the court was delivered by: COLLEEN McMAHON, District Judge
DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR A
NEW TRIAL AS A
MATTER OF DISCRETION, BUT CONDITIONALLY GRANTING PLAINTIFF'S
FOR A NEW TRIAL PENDING THE OUTCOME OF APPELLATE REVIEW
JAMES McMAHON, Magistrate Judge
On April 4, 2003, following a three-day trial, a jury returned a
verdict in favor of plaintiff on two claims against defendants. Count I
alleged that defendants violated the Family and Medical Leave Act (FMLA),
29 U.S.C. § 2612(a)(1)(C), by firing plaintiff from his job as sales
manager at Manhattan Woods Golf Club after he took a day off work to be
present while his dying mother underwent emergency brain surgery. Count
II alleged a breach of contract growing out of the same conduct. The jury
awarded plaintiff damages in the amount of $126,825 for defendants'
violation of FMLA,*fn1
and in the amount of $74,375 for their breach of
Defendants subsequently moved for judgment as a matter of law pursuant
50(b), on the ground that plaintiff failed to adduce any evidence
that he qualified for FMLA leave. In the alternative, defendants sought
reduction in the amount of FMLA damages awarded by the jury, arguing that
the damages awarded to compensate plaintiff for the FMLA violation could
not, as a matter of logic, be any greater than the damages awarded for
defendants' breach of his employment contract. Defendants also asked the
court to overturn the verdict in plaintiff's favor on his breach of
On July 2, 2003, I granted defendant's motion on the FMLA claim,
causing the motion to reduce damages to become moot. Fioto v.
Manhattan Woods Golf Enterprises LLC, No. 01 Civ. 5383, 2003 WL
21663702, p. 2 (S.D.N.Y. July 2, 2003). I denied the motion insofar as it
addressed the breach of contract claim. Id., p. 5. I also
recognized, however, that one or both parties might move pursuant to
Rule 50(c)(2) and Rule 59 for a post-JMOL new trial. Id., p. 6, n.2.
Judgment was entered on July 28, 2003. Familiarity with that opinion and
order is assumed.
Plaintiff now seeks a new trial on the FMLA claim and on the damages
portion of the breach of contract claim pursuant to Fed.R.Civ.P.
50(c)(2) and Fed.R.Civ.P. 59. Alternatively, plaintiff asks the Court
to grant a new trial on its own initiative pursuant to Fed.R.Civ.P.
59(d). Failing that, plaintiff requests that the court grant a
conditional ruling pursuant to Fed.R.Civ.P. 50(c)(1), providing for a
new trial in the event that the Court of Appeals for the Second Circuit
reverses this Court's determination on the FMLA claim.
I hereby deny plaintiff's motion for a new trial under Rules 50 and 59.
I, however, conditionally grant plaintiff's motion for a new trial
pending the outcome of appellate review.
Motion For a New Trial Under Federal Rules of Procedure 50(c)(2)
Federal Rule of Civil Procedure 59(a) provides that "a new trial may be
granted to all or any of the parties and on all or part of the issues 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. 59(a). Traditional reasons
for granting new trials pursuant to Rule 59 include, "the verdict is too
large or too small, damages are excessive . . . or that there is newly
discovered evidence." 11 Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure § 2805 (2d ed.
1995). Federal Rule of Civil Procedure 50(c)(2) "regulates the verdict
winner's opportunity to move for a new trial if the trial court has
granted a Rule 50(b) motion for judgment n.o.v." Neely v. Martin K.
Eby Construction, 386 U.S. 317, 324 (1967). It provides that "any
motion for a new trial under Rule 59 by a party against whom judgment as
a matter of law is rendered shall be filed no later than10 days after
entry of the judgment." Finally, Federal Rule of Civil procedure 59(d)
provides that "[n]o later than 10 days after entry of judgment the court,
on its own, may order a new trial for any reason that would justify
granting one on a party's motion."
As I stated in my July 2 opinion, FMLA leave is available only to an
employee who needs "to care for" a family member. Fioto, 2003
WL 21663702, p. 3. Mr. Fioto's FMLA claim failed as a matter of law
because he presented no evidence from which a reasonable jury could have
concluded that he provided physical or psychological care for his mother
at the hospital. Id., p. 4. Mr. Fioto requests a new trial so
that he may introduce evidence to remedy that omission. Plaintiff now
maintains that he is entitled to a new trial on the FMLA claim because:
(1) the defect in the proof of the "to care for" element of the claim can
be readily cured by a "token" amount of additional testimony from
plaintiff and his father, Anthony Fioto, Sr.; (2) a new trial would
comport with considerations of judicial economy; and (3) "substantial
injustice" would otherwise occur. (Pl. Brief, at 6).
Plaintiff is indeed correct that a district court can, in an exercise
of its discretion, order a new trial pursuant to Rule 50 and 59 "where
justice would be served by it; where . . . it is obvious that the
defect in proof . . . is a thing that may be remedied at a new trial
without perjury." General William D. Mitchell, Chairman of Advisory
Committee, in New York Symposium on Federal Rules, 1938, pp.
283-284 (emphasis added); see also Network
Publications, Inc. v. Ellis Graphics Corp., 959 F.2d 212, 213-214
(11th Cir. 1992).
But in this Circuit, a litigant seeking to reopen the proof must
proffer evidence "which was not available, or by the use of reasonable
diligence could have been available for use at the original trial."
Mayer v. Higgins, 208 F.2d 781, 783 (2d Cir. 1953). As another
court in this district has noted, the policy for this rule is clear:
"Litigation would be intolerably drawn out if parties failing to offer
evidence readily available to them were permitted to reopen the proof if
disappointed by the result." Granholm v. TFL Express,
576 F. Supp. 435, 456 (S.D.N.Y. 1984). Thus, the policy permitting a party to
"cure" a defect in proof must be balanced against the need for judicial
economy. Plaintiff suggests that the policy permitting "cure" is favored
here because the denial of a new trial would result in "substantial
The interests of justice would not be served by granting plaintiff a
new trial on the FMLA claim.
Plaintiff suggests no reason why he failed to offer proof in support of
his FMLA claim at trial. Mr. Fioto testified at trial, but did not
present any evidence that he was "needed to care for" his mother on June
15, 2000. Plaintiff and his father now seek to introduce new affidavits
showing that "it was [plaintiff's] intention to go to the hospital to
assist his father in making all medical decisions relating to his
mother's surgery" and that plaintiff "comforted" and "reassured" his
mother in the hours before surgery. [P. Brief, at 8-9]. There is nothing
that prevented either plaintiff or his father from offering this
testimony at trial. The affidavits attached to this motion therefore
cannot constitute newly discovered evidence, thereby necessitating a new
trial. See Shults v. Henderson, 110 F.R.D. 102, 105
(W.D.N.Y. 1985) (new affidavits from witness who previously testified at
trial not adequate basis for granting a new trial on damages).
Plaintiff argues that a more appropriate precedent for this Court to
consider is Network Publications, Inc., 959 F.2d 212, 215 (11th
Cir. 1992), in which the Tenth Circuit reversed a trial court for denying
a seller's motion for a new trial on a breach of warranty claim, where
proved breach of warranty, but failed to present sufficient
evidence of the amount of damages suffered. However, in Network
Publications, there was at least some evidence in the record showing
that buyer was damaged just not enough to calculate the damage
award. Here, as I have already found, the record was completely barren of
evidence to support the "to care for" element of Fioto's FMLA claim.
Again, Fioto points to defendant Lee's use of the words "to take care of
his mom" in describing why Fioto did not come to work on June 15, 2000.
But as I stated in my prior opinion, Lee had no knowledge of what
plaintiff was doing or was needed to do at the hospital. Certainly, there
is no ...