United States District Court, W.D. Pennsylvania
SANG B. PARK, Plaintiff,
MARCELO AHN; THE WALLACE, Defendants.
MAUREEN-P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
MOTION TO ALTER/AMEND JUDGMENT'
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). ECF No. 133 at 2.
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).
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.
Burden of Proof
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.
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.
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.
Court will address the two sub-issues separately.
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.
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
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
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
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.
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?
MR. MILLER: Yes.
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.