The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
This action arises out of the employment of plaintiff, Darryl L. Dagen,
by defendants CFC Group Holdings and CFC Securities.
In November of 1998, plaintiff and defendants entered into an agreement
pursuant to which plaintiff agreed to serve as the President and Managing
Director of CFC's new Hong Kong affiliate, CFC Securities Asia, until
June of 2001. The contract provided that CFC would pay Dagen $300,000 per
year, a bonus representing a percentage of CFC Asia's annual revenue
earnings, $7,000 per month as an apartment allowance, relocation costs,
travel costs to visit his family, in addition to providing him insurance
and a pension. According to Dagen, during the tenure of his employ, Boris Merkenich, the principal owner of all CFC
companies, "made unreasonable constraints on plaintiff's ability to
build the business in Hong Kong," Pl.'s Complaint at 42, by, inter
alia, canceling his lease and his cellular phone, removing his
signatory status on CFC's. bank account, limiting his expenditures on
client development, and allowing him to use only one recruiting firm. He
maintains that Merkenich strategically pushed plaintiff out of the
company, culminating in the constructive termination of his employment
in July of 2000.
In August of 2001, plaintiff commenced this action charging defendants
with breach of contract, intentional interference with contractual
relations, unjust enrichment and failure to pay wages pursuant to New
York Labor Law Article § 190 et seq. He seeks financial compensation
totaling the wages, bonuses, and benefits he claims he is entitled to
under the contract had defendants not constructively discharged him.
Defendants present a strikingly different version of the events
motivating this lawsuit. They claim that Dagen fraudulently induced CFC
into hiring him by misrepresenting his qualifications for the position,
utterly failed to perform the job responsibilities contemplated by the
contract, collected company funds for personal expenditures, stole a
company check and overpaid himself for a full month's wages when he
worked for only two weeks, and walked off the job nearly a year before
having satisfied his two-year contractual obligation. Accordingly,
defendants counterclaimed for breach of contract, fraudulent inducement
to contract, negligent misrepresentation, conversion, and breach of
The case was tried before a jury from November 10th through November
19th, 2003. The evidence offered by Dagen to substantiate his claims
included his own testimony, the testimony of Steven Domney of CFC
Securities, and a wide range of exhibits. Although the court permitted
Dagen to play audio tapes to the jury, the contents of which were
conversations between Dagen and Merkenich which Dagen recorded by wearing
a concealed wire, the court barred Dagen from publishing uncertified
transcripts Dagen created of the tape's conversations because doing so
was inconsistent with the Best Evidence Rule, Fed.R.Evid. 1002.
See Order, November 13, 2003. Further, while the court barred
both parties from publishing exhibits to the jurors during the
presentation of testimony, the court allowed them to publish exhibits
during summation and further instructed the jurors that they were free to
request and inspect all matters admitted into evidence during
Before the case went to the jury, plaintiff made a motion for a
directed verdict on defendants' counterclaims. The court reserved
decision on the motion. See Transcript at 9, lines 9-12 (Nov.
After an hour and a half of deliberating, the jury rendered a verdict
for plaintiff on defendants' counterclaims and for defendants on
plaintiff's claims. More specifically, the jury found that Dagen did not
prove that 1) defendants constructively discharged him, 2) defendants
breached the employment contract, 3) Merkenich and CFC Asia interfered
with the contractual relationship between Dagen and CFC Group and CFC
Securities, or 4) he sustained damages as a result of defendants' conduct. They also found that defendants did not
prove that 1) Dagen breached the employment agreement or his fiduciary
duties by walking off the job before he had fulfilled the contract's
term or 2) Dagen breached the contract, unjustly enriched himself, or
acted fraudulently or negligently by failing to close any sales, abusing
the expense reimbursement policy, or cashing a company check.
On December 18, 2003, plaintiff moved the court to set aside the
verdict, Fed.R, Civ.P. 50(b)(1)(c), grant a new trial, Fed, R, Civ.P.
59(e), or grant relief from judgment, Fed.R.Civ.P. 60(b)(6), on the
grounds that the court erred in limiting the publication of exhibits
to closing arguments, the court erred in disallowing plaintiff the
opportunity to publish his self-made transcripts of the tape-recorded
conversations to the jury, defendants did not offer any witnesses,
Merkenich made an admission in one of the tape-recorded conversations,
and the jury's verdict was internally inconsistent.
STANDARD OF REVIEW FOR JUDGMENT AS A MATTER OF LAW, NEW TRIAL, OR
RELIEF FROM JUDGMENT
A. Judgment As a Matter of Law
Fed.R.Civ.P. 50(b)(1)(C) permits a court to enter judgment as a matter
of law where a party renews its motion after a trial. Procedurally and
technically, a motion under Rule 50(b) is a motion for a directed verdict
which may not be granted on any ground not specifically raised in an
earlier motion at the close of all the evidence. Doctor's Assocs.,
Inc. v. Weible, 92 F.3d 108, 112 (2dCir. 1996).
Motions for judgment as a matter of law must be considered against the
backdrop of the Seventh Amendment's command that "no fact tried by a
jury, shall be otherwise reexamined in any Court of the U.S.,
than according to the rules of the common law." U.S. Const, amend. VII.
Olin Corp. v. Insurance Co. of North America, 221 F.3d 307, 320
(2d Cir. 2000). Because fact issues are within the jury's province, the
court "must give deference to all credibility determinations made by the
jury and to all reasonable inferences from the evidence the jury might
have drawn in favor of the nonmoving party." Vasbinder v.
Ambach, 926 F.2d 1333, 1339 (2d Cir. 1991). In short, the court
cannot "substitute its judgment for that of the jury."
LeBlanc-Sternberg v. Fletcher, 67 F.3d 412,429 (2d Cir. 1995)
(citations omitted). Accordingly, a court may not award judgment as a
matter of law unless 1) there is such a complete absence of evidence
supporting the verdict that the jury's findings could only have been the
result of sheer surmise or conjecture, or 2) there is such an
overwhelming amount of evidence in favor of the nonmovant that reasonable
and fair minded persons could not arrive at a verdict against it.
Galdieri-Amrbrosini v. Nat'l Realty & Dev. Corp.,
136 F.3d 276, 289 (2d Cir. 1998) (quoting Cruz v. Local Union No. 3 of the
Int'l Bhd of Elec. Workers, 34 F.3d 1148, 1154 (2d Cir. 1994)
(internal quotation marks omitted). "[W]eakness in the evidence does not
justify judgement as a matter of law; as with summary judgment, the
evidence must be such that `a reasonable juror would have been compelled
to accept the view of the moving party." This is Me, ...