Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


April 12, 2004.

DARRYL L. DAGEN, Plaintiff -against- CFC GROUP HOLDINGS LTD., ET AL., Defendants

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 ยง 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 fiduciary duty.

  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 deliberations.

  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. 19, 2003).

  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.


 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, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.