United States District Court, S.D. New York
February 4, 2004.
ANTHONY FIOTO, JR., Plaintiff, -against- MANHATTAN WOODS GOLF ENTERPRISES, LLC, MANHATTAN WOODS GOLF CLUB, LLC and KANG LEE a/k/a KEN LEE, Defendants
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."
The FMLA Claim
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 evidence that plaintiff ever communicated to Lee that he was needed
to make medical decisions or comfort his ailing parent. For all Lee knew,
plaintiff was simply present at the hospital which does not
constitute "caring for" a FMLA-qualifying relative.
Finally, a new trial would not comport with the interests of judicial
economy. I am in no position to reempanel the jury that heard the
original evidence so they can listen to fifteen minutes of testimony. A
new trial would be precisely that-a new trial, requiring new jury
selection, new testimony from all the witnesses and another week of this
Court's time. Judicial economy is best served by having the plaintiff
present all admissible evidence the first time around, not by having a
"practice trial" or "moot court" and then starting over again to allow
plaintiff to fill in evidentiary omissions.
The "Contract Damages" Claim
Plaintiff timely filed this motion seeking a new trial on the damages
portion of its breach of contract claim on the grounds of jury error.
Specifically, plaintiff alleges that the jury erred because ". . .
they awarded different amounts [for the contract claim and the FMLA
claim] for plaintiff's losses stemming from the same event, his
termination." Fioto, 2003 WL 21663702, at p. 2 n.2. It is
certainly strange that the jury awarded different damage awards for the
breach of contract and FMLA claims. Nevertheless, those conflicting
awards, in and of themselves, do not entitle plaintiff to a new trial
under the circumstances of this case.
A district court does not have unfettered discretion to grant a new
trial. In fact, the Second Circuit has instructed district courts to
"abstain from interfering with [a jury] verdict unless it is quite clear
that the jury has reached a seriously erroneous result" that would result
in "a miscarriage of justice." Boven v. Saydjari, 574 F.2d 676,
684 (2d Cir. 1978); Lang v. Birch Shipping Company, 523 F. Supp. 1112,
1115 (S.D.N.Y. 1981). Thus, a verdict on damages "can be set aside
as clearly excessive or inadequate only when `the verdict is so
disproportionate to the injury and its consequences as to shock the
conscience of the court.'" Simone v. Crans, 891 F. Supp. 112,
113 (S.D.N.Y. 1994).
There was no dispute among the parties that plaintiff had a written and
oral Employment Agreement. [Joint Pretrial Order, Stipulated Facts, at
2]. The parties also agreed that plaintiff began his employment with
defendant in April 1999 and left on June 16, 2000. [Id., at 1].
Plaintiff's yearly salary was $85,000. [Id., Plaintiff's
Contentions, at 3]. Plaintiff contended that he was entitled to
commission and bonuses in an amount between $678,125 and $1,220,625 in
addition to his yearly salary. [Id.]. At the close of trial, I
submitted the following charge, without objection, to the jury on the
The measure of general damages for the breach of a
contract is the amount which will compensate the
injured party the Plaintiff for
the economic loss he suffered as a result of the
breach. The injured party should receive those
damages naturally arising from the breach. As
nearly as possible, the injured party should
receive the equivalent of the benefits he would
have received had the Defendant performed under
A party may only recover as damages amounts that
both parties reasonably contemplated or foresaw at
the time they made the contract. In determining
whether a particular element of damages was
foreseeable, you must look first and foremost to
the terms of the contract itself, as well as to
any negotiations or discussions leading up to the
contract. The terms of a written contract that
purports to be the full and complete agreement
between two parties cannot be varied by oral
understanding allegedly reached prior to the
signing of the document. Here, the parties have
stipulated that the parties were abiding by the
unsigned Employment Agreement, which is PX 6.
Damages must be reasonable. Plaintiff cannot
recover a greater amount in damages than he could
have gained by the full performance of the
It is your duty to determine what loss, if any,
the Plaintiff suffered as a result of the
Defendant's breach, and to award those reasonable
damages that put the Plaintiff in the same
economic position he would have been if the
Defendant had not failed to perform under the
In a contract like the one at issue here, loss to
the Plaintiff is measured as the money he would
have earned had he been permitted to complete
anticipated but non-speculative
sales, under the agreement without being prevented
from doing so by Defendant.
For the breach of contract claim, the jury awarded plaintiff $74,375.
The Court's conscience is not shocked by the jury's finding of damages
in the amount of $74,375 for defendant's breach of its employment
contract with plaintiff. Plaintiff's Employment Agreement was for a
salary of $85,000. In response to a special interrogatory, the jury found
that plaintiff's employment would have terminated on April 30, 2001, had
he not been fired by Defendant Lee on July 16, 2000. The jury charge
required the jury to award damages for plaintiff's "anticipated
non-speculative" future earnings under the Agreement. Based on this
record, the jury could reasonably have concluded that the amount of
expected losses for the breach of contract was the amount of salary
plaintiff would have earned from July 16, 2000 through April 30, 2001-a
period of nine and one-half months. The jury's verdict comports with a
finding that Fioto would have received his salary during that period and
would have made some money in addition, but would not have earned very
much in the way of commissions.*fn2 I cannot say that the jury reached
an erroneous result or that its' decision resulted in a miscarriage of
justice. U.S. Football League v. Nat'l Football League,
644 F. Supp. 1040, 1055 (S.D.N.Y. 1986) (damages award not inadequate where
award was supported by evidence in the record), aff'd,
842 F.2d 1335 (1988).
It certainly appears that the measure of damages for breach of contract
and for FMLA should be congruent in plaintiff's case, since the court's
charge on FMLA damages was substantially similar to the charge on breach
of contract damages.*fn3 So it is in theory illogical for the jury to
have come back with a different amount in damages on the FMLA claim.
However, the FMLA verdict has been vacated vacated in a decision
on a post-trial motion that was itself further argument on a motion for
directed verdict as to which the court reserved decision. In effect, the
court ultimately granted the motion for a directed verdict, which means
the jury should never have deliberated on the claim. Their verdict is a
nullity. Therefore, the fact that the damages awarded on the FMLA claim
differ (inexplicably) from
those awarded on the contract claim, while interesting, is
irrelevant. What is relevant is that the contract damages awarded do not
shock the conscience and are fully in accord with a reasonable view of
the evidence and the court's charge. They are simply not, as plaintiff
A district court has "inherent authority to order a new trial in the
face of verdicts which are wholly inconsistent." Id., at 1046.
Yet, courts also have "a constitutional obligation to search for an
interpretation of the case which reconciles the verdicts, and which
respects the principle that juries are not bound by what seems
inescapable logic to judges." Id. Assuming arguendo
that it is proper to consider the vacated verdict where the award on the
remaining claim is reasonable, the two awards, while not congruent, are
also not "wholly inconsistent." Both are for amounts far less than
plaintiff sought, and are in keeping with a view of the evidence that
favored limiting plaintiff's recovery to his base compensation and modest
commissions. This is not a case where one award is an unconscionable
multiple of the other. See Wickham Contracting Co. v. Board of
Education of the City of New York, 715 F.2d 21, 28 (2d Cir. 1983)
(reversing damage award and remanding for retrial where district court
awarded approximately six times the amount of damages for a
secondary boycott claim as for an antitrust claim, even though liability
under either theory was based on the same illegal acts such that the
award amounts should have been identical). In the circumstance here
presented i.e., where vacatur of the FMLA judgment means that, as
a practical matter, there are no inconsistent verdicts to reconcile
this analysis does not support the conclusion that a new trial is
needed to redress some manifest injustice.
I will, however, grant plaintiff's motion for a conditional ruling on a
new trial pending appellate review.
Plaintiff cites Rule 50(c)(1) as a basis for his motion for a new
trial. Ordinarily, Rule 50(c)(1) requires the Court to make a conditional
ruling on a motion for a new trial only where "a party joins a motion for
a new trial with his motion for judgment n.o.v., or prays for a new trial
in the alternative, and the motion for judgment n.o.v. is granted."
Federal Rules of Civil Procedure, Advisory Committee Notes, 1963
Amendment. "The alternative motion . . . is a remedy for the party who
lost the verdict sheet initially and asks for judgment as a matter of law
under Rule 50(b)." 11 Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure § 2539 (2d ed.
1995). In this case, the defendants are governed by 50(c)(1), as they
lost the verdict initially, but were granted post-verdict judgment as a
matter of law. The new trial motion of Mr. Fioto, the verdict-winner in
this case, is governed not by 50(c)(1), but by Rule 50(c)(2), which
"states that the verdict-winner may apply to the trial court for a new
trial pursuant to Rule 59 after the judgment n.o.v. has been entered
against him." Federal Rules of Civil Procedure, Advisory Committee Notes,
In rare circumstances, a Court may conditionally grant a new-trial
motion pursuant to Rule 50(c)(2). Such a circumstance has been found to
exist where the damages awarded by the jury were clearly inadequate.
See Tribble v. Bruin, 279 F.2d 424 (4th Cir. 1960).
Here, the contract damages are not clearly inadequate. However, if the
jury's verdict on the FMLA claim were to be reinstated by the Second
Circuit, there would have to be a new trial on damages, if only because I
could not determine
the amount in which I should direct the Clerk to enter judgment
without running afoul of the "no double recovery" rule. So this is one of
those "rare circumstances" in which plaintiff is entitled to a
conditional ruling granting him a new trial should he obtain
reinstatement of the FMLA verdict on appeal.
This constitutes the decision and order of the Court.