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U.S. District Court Palm Bay International, Inc v. Marchesi Di Barolo S.P.A

August 22, 2012

U.S. DISTRICT COURT PALM BAY INTERNATIONAL, INC., EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE PLAINTIFF/COUNTER-DEFENDANT,
v.
MARCHESI DI BAROLO S.P.A., DEFENDANT/COUNTER-PLAINTIFF. DAVID S. TAUB AND MARC TAUB, AS SUCCESSOR TO MARTIN G. TAUB, DECEASED, PLAINTIFFS/COUNTER-DEFENDANTS, - AGAINST -MARCHESI DI BAROLO S.P.A., DEFENDANT/COUNTER-PLAINTIFF.



The opinion of the court was delivered by: Spatt, District Judge.

FILED CLERK

8/22/2012 3:36 pm

MEMORANDUM OF DECISION AND ORDER

The saga goes on. Now that the issue of the taxable costs to Marchesi Di Barolo S.P.A. ("Marchesi") has been resolved, the Court will now address the issue of post-verdict prejudgment interest. The defendant Marchesi requests that the Court correct its July 15, 2011 judgment to include an award of post-verdict prejudgment interest in the sum of $44,069.45.

In regard to the application by Marchesi for post-verdict prejudgment interest, the relevant chronological data is as follows:

August 6, 2010 -- The jury verdict.

September 13, 2010 -- The initial judgment entered after the verdict.

July 11, 2011 -- In response to a motion for a judgment as a matter of law by the plaintiff Palm Bay International, Inc. and the Taubs ("Palm Bay" or the "Plaintiffs"), the Court granted the Rule 50(b) motion as to Count VI of Marchesi's counterclaim, reversing the jury verdict against the Taubs, but denying the motion in all other respects.

July 15, 2011 -- An amended judgment was entered with regard to the reversed jury verdict on behalf of Marchesi against the Taubs as to Count VI of the counterclaims. This amended judgment did not provide for post-verdict prejudgment interest for Marchesi.

On July 29, 2011, Marchesi filed this motion pursuant to Federal Rule of Civil Procedure 60(a) ("Rule 60(a)"), or, in the alternative, Federal Rule of Civil Procedure 59(c) ("Rule 59(c)"). This motion was for an order correcting the July 15, 2011 amended judgment so as to include an award of post-verdict prejudgment interest, pursuant to New York CPLR 5002, from the date of the verdict to the entry of the amended judgment. On August 9, 2011, the Plaintiffs filed a notice of appeal with the Second Circuit. On October 25, 2011, the Court denied Marchesi's motion on two grounds. First, the Court held that the Rule 59(c) motion was untimely. Second, the Court ruled that it was barred by the plain language of the rule from deciding the motion while an appeal was pending. The Court denied the motion by Marchesi to add an award of post-verdict prejudgment interest from the date of the verdict to the entry of the amended judgment of July 15, 2011, "without prejudice to re-file following a decision by the Second Circuit to the plaintiffs' appeal . . .."

On May 17, 2012, the Second Circuit affirmed the jury verdict and the Court's decision. Now, Marchesi asserts that its "Rule 60(a) motion is therefore ripe for disposition."

I. DISCUSSION

A. The Contentions

Apparently, the plaintiffs do not dispute that, in this diversity case, the New York State rules governing the award of post-verdict prejudgment interest apply. Also, it is undisputed that the New York prejudgment interest rate is nine percent per annum. CPLR 5004. See also FCS Advisors, Inc. v. Fair Finance Co., Inc., 605 F.3d 144, 147 (2d Cir. 2010) (". . . it was undisputed that New York law governed the pre-judgment interest . . ."). In this latest motion, the defendant Marchesi requests that the Court "correct" the amended judgment to include prejudgment interest at nine percent per ...


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