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February 4, 2004.


The opinion of the court was delivered by: COLLEEN McMAHON, District Judge

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 contract.

Defendants subsequently moved for judgment as a matter of law pursuant to Fed.R.Civ.P. Page 2 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 contract claim.

  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) and 59

  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."

  The FMLA Claim Page 3

  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 injustice."

  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 the buyer-plaintiff Page 4 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 ...

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