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Alexiou v. Moshos

December 17, 2009


The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge


In this diversity contract action, Plaintiff Thalia Alexiou brought suit against Defendant Angelo Moshos for damages allegedly arising out of his breach of a September 15, 2004, agreement pursuant to which Angelo loaned money to Thalia and her husband, Lazaros Moshos (Angelo's brother), to buy a property in Philadelphia, Pennsylvania.*fn1 On October 29, 2009, judgment was entered in Angelo's favor, based on the jury's answers to interrogatories.*fn2 Presently before the court are three post-verdict motions and corresponding responses and replies to those motions -- Thalia's Motion for Entry of Judgment Pursuant to Rule 50(b) (Docs. 53, 66 and 67), Thalia's Motion to Alter or Amend Judgment Pursuant to Rule 59(c) (Docs. 54, 65 and 68), and Angelo's Motion to Alter or Amend Judgment and to Tax Costs Against Plaintiff (Docs. 55 and 64). For the following reasons, I will deny Thalia's motions, and grant Angelo's motion only as to the award of costs.


Pursuant to the aforementioned agreement, Thalia and Lazaros agreed to contribute $90,000, and Angelo agreed to contribute $150,000, towards the purchase of a property at 1001 10th Avenue in Philadelphia, Pennsylvania. Thalia commenced this action in state court seeking to recover, among other amounts, the $90,000 she and Lazaros contributed toward the purchase of the property, and Angelo removed the matter to federal court on November 20, 2008. See Doc. 1. The matter proceeded to trial on October 26, 2009.

At trial, both Thalia and Angelo testified at length concerning the parties' obligations under the agreement. Trial stipulations and testimony revealed that under the agreement Thalia and Lazaros would have three months to secure a mortgage and repay the $150,000 to Angelo, at which time the name on the deed would be changed from Angelo to Lazaros and Thalia. N.T. 10/26/09 at 29. If Lazaros and Thalia failed to repay Angelo within three months, or if they failed to cover the payments on Angelo's $150,000 mortgage and other expenses for a total of two months, then Angelo would have the right to sell the property and return Lazaros's and Thalia's $90,000 investment. If the property sold for less than its purchase price, the "appropriate amount" would be deducted from Lazaros's and Thalia's investment.

At the closing in October 2004, the property was placed in Angelo's name. N.T. 10/26/09 at 29. Thalia and Lazaros were unsuccessful in obtaining financing, were unable to buyout Angelo for $150,000, and were unable to make the required payments. Id. at 28-29. In December 2004, Lazaros was killed in a car accident. Id. Thereafter, Thalia did not make any payments under the agreement. In February 2006, Angelo sold the property for $375,000. Id. at 29. He did not pay Thalia any of the proceeds from the sale. Id.

The parties also testified regarding various sums of money Angelo paid to Thalia and Lazaros, mostly prior to the agreement. N.T. 10/26/09 at 87-101 (Thalia); N.T. 10/27/09 (Vol. I) at 8-9, 22-25, 75, 86-89 (Angelo). The sums were paid by check, one for $5,000 made payable to Thalia and the remainder made payable to Lazaros, but all of them were endorsed and deposited by Thalia into her bank account, which she and Lazaros used for personal expenses. N.T. 10/26/09 at 95; N.T. 10/27/09 (Vol. I) at 57. The words "personal loan" were written on the face of the majority of the checks. Id.

Angelo requested that the jury be instructed that it could set off amounts Angelo owed under the agreement by amounts Thalia owed Angelo based on the loans. Over Thalia's objection that there was insufficient evidence that she owed any debt to Angelo, I instructed the jury that it should determine whether Angelo proved the affirmative defense of set-off by a preponderance of the evidence and, if do, the amount of the setoff. N.T. 10/27/09 (Vol. II) at 37-40, 82-83.

On October 27, 2009, the jury returned a defense verdict. Specifically, in answers to interrogatories, the jury found that Thalia had proven her breach of contract claim by a preponderance of the evidence and awarded damages in the amount of $90,000. See Doc. 49 at Nos. 1-2. The jury further found that Angelo had proven his affirmative defense of set-off by a preponderance of the evidence, and determined the amount of the set-off to be $94,000. Id. at No. 4. Based on the jury's determination, I entered judgment in favor of Defendant Angelo on October 29, 2009. See Doc. 48.

On November 10-11, 2009, the parties filed the present post-trial motions. See Docs. 53-55. In addition, defense counsel filed a motion to withdraw as attorney. See Doc. 56. On November 16, 2009, following a hearing, I denied the motion to withdraw and gave the parties until November 30, 2009, to respond to the remaining post-trial motions, and until December 7, 2009, to file any replies. See Doc. 59. The parties complied with these deadlines and the remaining post-trial motions are now ripe for review.


A. Thalia's Motion for Entry of Judgment Pursuant to Rule 50(b)

In this motion, Thalia argues that, notwithstanding the jury's determination, she is entitled to judgment as a matter of law, renewing her argument at trial that the evidence of set-off was insufficient to go to the jury. Federal Rule of Civil Procedure 50(b) provides that a party may file a post-trial motion for judgment as a matter of law. See Fed. R. Civ. P. 50(b). In ruling on a Rule 50(b) motion, courts must determine "whether viewing the evidence in the light most favorable to the non-movant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Eshelman v. Agere Systems, Inc., 554 F.3d 426, 433 (3d Cir. 2009) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)). Judgment as a matter of law should be granted "where the record is critically deficient of the minimum quantum of evidence in support of the verdict." Id. (quoting Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083 (3d Cir. 1995)). "The question is not whether there is literally no evidence supporting the unsuccessful party, but whether there is evidence upon which a reasonable jury could properly have found its verdict." Id. (citing Gomez, 71 F.3d at 1083). Furthermore, "[i]n performing this narrow inquiry, we must refrain from weighing the evidence, determining the credibility of witnesses, or substituting our own version of the facts for that of the jury." Id. (citing Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)).

A set-off allows adjustments of mutual debts arising out of separate transactions between the parties. See Folger Adam Security, Inc. v. DeMatteis/MacGregor, JV, 209 F.3d 252, 259 (3d Cir. 2000) (set-off applies in "situations where both plaintiff and defendant have [claims] against each other... which can be mutually deducted whenever either one begins a suit against the other."). "Under Pennsylvania law, a set-off is accomplished when a creditor gives 'sufficient evidence of intent' to make a set-off.'" IRS. v. Norton, 717 F.2d 767, 772 (3d Cir. 1983) (quoting Goldstein v. Jefferson Title & Trust Co., 95 Pa. Super. 167, 170 (1928)). Also under state law, "the retention of a debtor's funds by a creditor provides sufficient evidence of an intent to set-off." Id. (citing Pittsburgh Nat'l Bank v. United States, 657 F.2d 36 (3d Cir. 1981)).

Thalia argues that the jury's verdict regarding set-off was unsupported because all of the evidence at trial, with the exception of a single check for $5,000 made out to her, showed that the loans at issue were made by Angelo to his brother Lazaros, with no expectation or agreement that the sums would be repaid by Thalia. See Doc.53 at 7-9; Doc. 67 at 1-7. In support of this argument, Thalia relies on testimony elicited from Angelo during the defense case in which Angelo repeatedly testified that he loaned money to his brother. Typical of such testimony is the following:

Q: Now can you tell me, at the time that Thalia was together with Lazaros, did there come a time when you started lending Lazaros a lot of money?

A: Yes.... [H]e run out of the money he got, and at one point around 2000, he started asking for money.

Q: And did he agree to pay you this money back?

A: Yes. He did agree. And, as a matter of fact, I had the specific discussions that, I'll give you the money, however, you have to remember, now I'm married, I may retire, if things don't go well with IBM, and I may need the money quickly.

Q: And did he agree?

A: Yes.

Q: And did you charge your brother interest?

A: No.

Q: And is that why on these checks we've seen, you wrote personal loan?

A: Yes, sir. * * * *

Q: Sir, this is from you and your wife's account, $10,000. It says personal loan, and it's endorsed by Thalia. Was this a ...

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