United States District Court, S.D. New York
May 12, 2014
DEBRA SCHATZKI and BPP WEALTH, INC., Plaintiffs,
WEISER CAPITAL MANAGEMENT, LLC, WEISERMAZARS, LLP and HOITSZ (A/K/A
Albert K. Lawler, Esq., Christopher S. Rooney, Esq., James J. Mahon, Esq., LAWLER MAHON & ROONEY LLP, New York, NY, Attorneys for Plaintiffs.
Scott I. Unger, Esq., STARK & STARK, P.C., Lawrenceville, NJ, Attorneys for Defendants.
ROBERT W. SWEET, District Judge.
Defendants Weiser Capital Management, LLC ("WCM"), Weisermazars, LLP ("Weisermazars") and Hoitsz Michel ("Michel") (collectively, the "Defendants") have renewed their motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b) ("Rule 50(b)"), seeking a dismissal of the claim upon which the jury awarded $300, 000.00 in damages to Plaintiff. For the reasons set forth below, the Defendants' motion is denied.
On January 21, 2014 Defendants moved pursuant to Rule 50(a) for judgment as a matter of law to set aside the jury verdict of $300, 000 in favor of the Plaintiffs Debra Schatzki ("Schatzki") and BPP Wealth, Inc. ("BPP"), collectively (the "Plaintiffs"). The motion was denied. Judgment was entered on March 14, 2014.
The instant motion renewing the motion was marked fully submitted on April 16, 2014.
The Rule SO(b) Standard
In Cash v. County of Erie, 654 F.3d 324 (2d Cir. 2011), the Second Circuit Court of Appeals discussed what it called the "heavy burden" that a party must meet on a Rule SO(b) motion for judgment after a jury rendered a verdict in favor of its adversary as follows:
In such circumstances, a court may set aside the verdict only "if there exists such a complete lack of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair minded persons could not arrive at a verdict against it."
Id. at 333, (quoting Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010)).
The Defendants' Motion For Judgment Is Denied
In the In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liability Litig., 725 F.3d 65, (2d Cir. 2013), our circuit noted that the jury was free to accept or reject expert testimony, and to draw its own conclusions. Id. at 114 (citing Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1131 (D.C. Cir. 1999)). The Circuit Court adopted in a jury context the holding of its previous decision in Schroeder v. The Tug Montauk, 358 F.2d 485 (2d Cir. 1966), where it held that "[i]t was within the province of the [trier of fact] to weight [conflicting expert evidence] and accept or reject the whole or a part of each [expert's] testimony." Id., 358 F.2d at 488.
Here, there was evidence before the jury, expert and otherwise, to support the jury's award.
The Defendants have not established the basis for Rule 50(b) relief and their motion is denied.
The Motion For A Stay Is Denied
No basis for a stay of execution having been established, the Defendants' motion is denied.
The motions of the Defendants for judgment and for a stay are denied.