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Scherer v. Kane

September 17, 2009

STANTON SCHERER AND ANTHONY DIBIASE, PLAINTIFFS
v.
PETER KANE, DEFENDANT.



The opinion of the court was delivered by: McKENNA, D.J.

MEMORANDUM AND ORDER

1.

Defendant moves -- following a jury trial at which the jury found that he had breached (on May 18, 1994) an oral contract with plaintiffs, and awarded plaintiffs damages of $3,200,000 --for judgment as a matter of law, pursuant to Fed. R. Civ. P. 50, or, in the alternative, for a new trial, pursuant to id. 59.

Plaintiffs move for the entry of judgment, pursuant to id. 58, for an award of interest, pursuant to N.Y.C.P.L.R. §§ 5001 and 5002, and for security for costs, pursuant to Local Civil Rule 54.2.

2.

This case was filed in 1998. Subject matter jurisdiction is premised on diversity, plaintiffs being alleged to be citizens of the State of New York, and defendant a citizen of Canada.*fn1

A trial before Judge Batts resulted in a jury verdict in favor of plaintiffs against defendant in the sum of $5,145,000. Judge Batts granted defendant's motion for judgment as a matter of law under Fed. R. Civ. P. 50, and indicated that, had she not done so, she would have granted his motion for a new trial under id. 59. Scherer v. Kane, No. 98 Civ. 3186, 2006 WL 3375639 (S.D.N.Y. Nov. 17, 2006). The Court of Appeals vacated in part and affirmed in part. Scherer v. Kane, 284 Fed. Appx. 850 (2d Cir. 2008) (Summary Order). The Court of Appeals vacated the grant of the motion for judgment as a matter of law, concluding that "the evidence, taken in the light most favorable to the Plaintiffs, was not so insufficient that no reasonable juror could have found in the Plaintiffs' favor." Id. at 853 (citation omitted). The Court of Appeals affirmed the grant of a new trial, because it could not say, on the record, "that the district court's determination that the verdict was against the weight of the evidence was an abuse of discretion. . . ." Id. at 854 (citation omitted).

3.

The case was retried before the undersigned.

Briefly, the evidence shows that in or about 1987 plaintiffs and defendant entered into an oral agreement that they would develop a business which was to be sold, one-half of the proceeds to go to defendant, the other half to the plaintiffs.

On May 18, 1994, Gaildon Medical Systems, Inc. ("Gaildon"), a company owned solely by defendant, entered into an agreement with MH Health Care Publications, a partnership between Maclean Hunter Publishing Limited and Maclean Hunter Limited ("Maclean"), pursuant to which Gaildon sold to Maclean certain specified assets for $1 and a right to receive 10% royalties on future sales on the part of the business formerly carried by Gaildon. In January of 2000, Rogers Publishing Limited ("Rogers"), Maclean's successor, entered into an agreement with Gaildon pursuant to which Gaildon's right to receive further future royalties was terminated for a lump sum payment of $7,500,000. (See Def. Rules 50 & 59 Mem. at 4.) "Payment of the agreed-upon sum by Rogers was made one-half to Gaildon and one-half to [Med-Fax International B.V. ("MFI")], because Gaildon had previously agreed to remit to MFI one-half of any royalties it received." (Id. at 4-5 (citations omitted).)

4.

Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor. In deciding such a motion, the court must give deference to all credibility determinations and reasonable inferences of the jury, and it ...


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