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Park v. Ahn

United States District Court, W.D. Pennsylvania

June 19, 2018

SANG B. PARK, Plaintiff,



         The instant action involves a breach of contract claim brought by Sang B. Park ("Plaintiff) against Marcelo Ahn ("Ann") and The Wallace, a restaurant located in Southern California (collectively, "Defendants"). The action arose from the parties' alleged agreement regarding Plaintiffs $300, 000 payment to Ahn, relating to the opening of a restaurant. In particular, Plaintiff alleged in the Complaint that in 2008 and 2009, he made two payments to Ahn pursuant to an agreement that the money would be used to open and operate a restaurant in California. ECF No. 1 ¶¶ 7, 9-10. Plaintiff alleged that the parties agreed in 2010 that Ahn would begin repayment to Plaintiff. Id. ¶ 12. The money has not been repaid. Id. ¶ 21.

         This claim was tried before a jury on March 19, 20, 21 and 22, 2018. ECF Nos. 116 -119. At the conclusion of the trial, the jury found that Plaintiff proved by a preponderance of the evidence that a contract to repay $300, 000 existed between Plaintiff and Defendants and that Defendants breached the contract. The jury awarded Plaintiff $300, 000 in damages to compensate him for the breaches of contract. ECF No. 123. Judgment was entered in favor of Plaintiff and against Defendants in the amount of $300, 000. ECF No. 124.

         Presently before the Court is Defendants' Motion to Alter/Amend the Judgment and, in the alternative, for New Trial. ECF No. 128. For the following reasons, the Motion will be denied.


         Defendants first move to alter/amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), contending that there was insufficient evidence to support the jury's verdict. ECF No. 129 at 2-7. In opposing this motion, Plaintiff argues, inter alia, that Defendants waived any challenge to the sufficiency of the evidence because they failed to move for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a).[1] ECF No. 133 at 2.

         As this Court has explained:

Our court of appeals has instructed that "the failure to move for a directed verdict at the close of all evidence does more than limit an aggrieved party's remedy to a new trial. In this Circuit, it wholly waives the right to mount any post-trial attack on the sufficiency of the evidence." Yohannon v. Keene Corp.. 924 F.2d 1255, 1262 (3d Cir. 1991). Thus, arguments based on sufficiency of the evidence are foreclosed under Rule 59 for the same reason that they are foreclosed under Rule 50(b). Stadtlander Drug Co., Inc. v. Brock Control Systems, Inc., 174 F.R.D. 637, 640-41 (W.D. Pa. 1997); see also United Intern. Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F, 3d 1207, 1228 (10th Cir.), affd., 532 U.S. 588, 121 S.Ct. 1776, 149 L.Ed.2d 845 (2001) ("A party may not circumvent Rule 50(a) by raising for the first time in a post-trial motion issues not raised in an earlier motion for directed verdict.") Therefore, the Court finds and rules that Defendants' failure to move for a judgment as a matter of law as to [certain] claims forecloses the consideration of said issues in the instant Rule 59 motion. Accordingly, the Court will decline to consider the merits of whether Plaintiff established [those] claims.

Hussein v. Universal Dev. Mgmt. Civ. A. No. 2381, 2006 U.S. Dist. LEXIS 49, at *16-17 (W.D. Pa. Jan. 3, 2006).

         In the instant case, Defendants' argument challenging the sufficiency of the evidence supporting the jury's verdict is foreclosed because Defendants did not move for judgment as a matter of law at the close of all evidence and before the case was submitted to the jury. As such, this Court properly declines to consider the merits of this argument as to the sufficiency of the evidence. Accordingly, the Motion to Alter/Amend the Judgment is denied. II. MOTION FOR A NEW TRIAL Defendants' Motion for New Trial has multiple bases: (1) the jury was instructed on an incorrect burden of proof; (2) evidence was improperly admitted; (3) the Court advanced improper advocacy for Plaintiff; and (4) insufficiency of the evidence. Plaintiff opposes this motion on all four grounds.

         A. Burden of Proof

         Defendants first argue that the Court instructed the jury on an incorrect burden of proof. ECF No. 129 at 8-10. Specifically, Defendants claim that the Court should have granted their Motion for Leave to Submit Additional Jury Instructions Nunc Pro Tunc, ECF No. 106, in which they sought an instruction that the burden of proof for oral contracts is "clear and convincing evidence" rather than preponderance of the evidence. ECF No. 129 at 8-10. The Court denied the Motion for Leave as untimely. ECF No. 107.

         In the instant Motion, Defendants do not refute the untimely nature of their Motion for Leave, instead, they characterize the Court's "refusal" to properly instruct the jury as plain error. ECF No. 129 at 9-10.

         Plaintiff, in opposing the instant Motion for a New Trial, takes the position that this Court was correct in rejecting Defendants' request for a new charge on the burden of proof as untimely. Plaintiff also argues that it is clear from an examination of the cases cited by Defendants that these cases are not legally applicable to the facts of the case at issue. ECF No. 133 at 4-5.

         The Court will address the two sub-issues separately.


         In order to address the issue of timeliness, a review of the chronology of the pretrial orders is required. This Court issued the initial Pretrial Order on January 4, 2017, setting trial to commence on May 8, 2017. ECF No. 66. Therein, the deadline for filing proposed jury instructions was set for April 24, 2017. Id. On March 28, 2017, counsel for Defendants filed a Consent Motion to Continue Trial Date stating that counsel were going to be in trial and lead counsel for Defendants wished to attend his daughter's college graduation. ECF No. 69. Following a status conference on April 10, 2017, this Court granted Defendants' Motion to Continue Trial Date and clearly directed that "All pretrial dates set in the Pretrial Order, ECF No. 66, remain in effect." ECF No. 75. As per the Pretrial Order, the parties filed Joint Proposed Points for Charge on April 24, 2017. ECF No. 82.

         At the Final Pretrial Conference on October 25, 2017, this Court ruled on proposed voir dire, jury instructions and the verdict form. ECF Nos. 101 and 112 at 20-23. Only after this Court had ruled on the proposed jury instructions and distributed the draft charge did Defendants then request two additional instructions - six months after the required deadline.

MR. FOX [counsel for Defendants]: Your Honor, we had - I apologize for my tardiness, but we did have a supplement - actually, two supplemental instructions we wanted to propose at this time that we believe go to central issues in this case.
THE COURT: I issued a pretrial order that proposed instructions were due by a certain date. That has already been set. Nothing has been provided to me previously. I checked the docket this morning. There is nothing on the docket, so those should have been provided before now.
MR. FOX: Your Honor, again, I apologize for the delay, but they do go to issues that have been addressed in the pleadings.
THE COURT: But the fact of the matter is the nature of this case hasn't changed since the beginning. I issued my order directing that the parties give me their joint proposed instructions. I had these instructions back in April and in that was included the additional instructions that defense wanted the Court to consider and I've ruled on those. That was submitted to me on April 24th. So, I've given my rulings on everything, and from my perspective, nothing has change in the nature of the case between April 24thand today being October 25th. So, if you want to state on the record what your proposed instructions are, but they're out of time. ...

         ECF No. 112 at 23-24.

THE COURT: Were those provided to Mr. Miller before today?
MR. FOX: I provided them - we just developed them this morning, Your Honor, and provided them to Mr. Miller shortly before our conference.
MR. MILLER [counsel for Plaintiff]: Your Honor, I received them as I sat here for the final pretrial conference.
THE COURT: So when you got here, they were given to you?
THE COURT: You've noted them on the record. But from the Court's perspective, they're out of time. They're not in compliance with my pretrial order. Like I said, the order for the jury instructions was due back in April. I had your proposed instructions then, didn't receive any motion for leave to file additional instructions, so we're now on the eve of trial so I will not allow it.

         Id. ...

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