Appeal from a January 20, 2010, judgment of the United States District Court for the Southern District of New York (Samuel Conti, Judge).*fn2
Ladenburg Thalmann & Co., Inc. v. Modern Continental Construction Holding Company, Inc.
Rulings by summary order do not have precedential effect. Citation to summary orders filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 9th day of November, two thousand and ten.
PRESENT: JOHN M. WALKER, JR., JOSE A. CABRANES, Circuit Judges, JOHN G. KOELTL, District Judge.*fn1
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED.
Plaintiff-Appellee Ladenburg Thalmann & Co., Inc., brought this action against defendant- appellant Modern Continental Construction Holding Company, Inc. for breach of contract arising from an agreement under which Ladenburg was retained by Modern to provide financial advice and pursue financing opportunities. Ladenburg alleges a credit and security facility provided to Modern by St. Paul Fire and Marine Insurance Company, Inc. entitles Ladenburg to compensation under its agreement with Modern. After a two-day trial and jury verdict in favor of Ladenburg, on January 20, 2010, the District Court denied Modern's motion for judgment as a matter of law under Fed. R. Civ. P. 50 or for a new trial under Fed. R. Civ. P. 59. Modern filed a timely appeal. We assume parties' familiarity with the underlying facts, procedural history, and issues on appeal.
On appeal, Modern argues that the District Court erred in (1) denying Modern's motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50 due to the District Court's mischaracterization of St. Paul's provision of funding to Modern as a "loan" included in the definition of "transaction" under Modern's agreement with Ladenburg and insufficient evidence establishing that Modern contacted St. Paul during the term of its agreement with Ladenburg for the purpose of obtaining funding or a loan; (2) permitting Ladenburg to take depositions of two witnesses before trial but after discovery concluded and denying its motion in limine to exclude evidence of Modern's efforts to complete a transaction with Ableco--another potential source of funding--prior to terminating its agreement with Ladenburg; and (3) denying its motion for a new trial pursuant to Fed R. Civ. P. 59 due to the District Court's refusal to give jury instructions requested by Modern or use a proposed verdict form submitted by the parties.
Judgment as a Matter of Law
We review the denial of a motion for judgment as a matter of law de novo, and will grant the motion only if "a reasonable jury would not have a legally sufficient evidentiary basis to find for the [non-movant] on that issue." Fed. R. Civ. P. 50(a)(1); see also Cameron v. City of New York, 598
F.3d 50, 59-60 (2d Cir. 2010). A court should grant a motion for judgment as a matter of law after the jury has returned a verdict only when 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 and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [it]." Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (citations omitted).
Here, having conducted an independent review of the record on appeal, we conclude, for substantially the reasons stated by the District Court in its well-reasoned order of March 23, 2009, Ladenburg Thalmann & Co., Inc. v. Modern Continental Construction Company, Inc., No. 04-Civ-974, 2009 WL 855654, at *4-5 (S.D.N.Y. March 23, 2009), that the provision of funding by St. Paul to Modern constituted a "loan" within the definition of a "transaction" under the Agreement between Modern and Ladenburg. Specifically, the funding arrangement that Modern pursued with St. Paul--a term and revolving credit facility--was precisely the arrangement which Ladenburg had pursued on Modern's behalf with other potential lenders. Id. Accordingly, we agree with the District Court that "[i]t is not reasonable to interpret the definition of 'Transaction' under the Agreement to exclude loans deals, given that the parties engaged in the negotiation of two such deals under the Agreement." Id.
Moreover, we also conclude, for substantially the reasons stated by the District Court in its comprehensive order of January 20, 2010, Ladenburg Thalmann & Co., Inc. v. Modern Continental Construction Company, Inc., No. 04-Civ-974 (S.D.N.Y. Jan. 20, 2010), that the District Court did not err in deferring to the jury's conclusion that Modern contacted St. Paul during the term of its Agreement with Ladenburg for the purpose of obtaining funding. Both the testimony at trial and the text of the draft credit facility prepared by St. Paul suggest that--as the prospects of alternative funding sources diminished--Modern contacted St. Paul in search of funding. Id. at *5-6. Though both Modern and St. Paul executives testified to the fact that Modern ...