563 F. App'x 79

2d Cir.

2014

Necdet AKTAS, Lisa Aktas, Plaintiffs-Counter Defendant-Appellants, v. JMC DEVELOPMENT CO., INC., Stephen M. Jung, DBA Jung Architecture, Defendants-Counter Claimants-Appellees, Michael Terry, et al., Third-Party Defendants-Cross Defendants-Cross Claimants, Joseph M. Cantanucci, Jr., et al., Defendants-Cross Defendants-Counter Claimants-Counter Defendants.

Nos. 13-534(L), 13-1722(Con).

United States Court of Appeals, Second Circuit.

April 23, 2014.

563 F. App‘x 79

The Clerk of Court is directed to amend the caption in this case to conform to the listing of the parties above.

ments, the Guidelines range would have been 21 to 27 months.

Breynin claims that these enhancements were imposed in error. Of particular importance to this appeal is whether the purchase of credit card numbers, without more, can be considered “trafficking” in access devices within the meaning of U.S.S.G. § 2B1.1(b)(11)(B)(i). Resolution of this close question would require us to make new law, which we are reluctant to do unless it would likely make a difference in Breynin‘s ultimate sentence. See United States v. Jass, 569 F.3d 47, 68 (2d Cir.2009) (“Where we identify procedural error in a sentence, but the record indicates clearly that the district court would have imposed the same sentence in any event, the error may be deemed harmless, avoiding the need to vacate the sentence and to remand the case for resentencing.“).

The district court acknowledged that the application of the contested enhancements was a “close call,” Tr. of Sentencing, at 60, May 29, 2013, but indicated that it was inclined to impose a 24-month sentence regardless of whether the enhancements applied. See id. at 61 (“I think I‘d end up giving the same sentence no matter how the [G]uidelines came out in this case.“). Accordingly, we remand the case pursuant to the procedure outlined in United States v. Jacobson, 15 F.3d 19, 22 (2d Cir.1994), to solicit the district court‘s view as to whether it is confident that it would impose the same sentence regardless of the disputed enhancements. The district court may also conduct such further sentencing proceedings as it deems appropriate.

The panel retains jurisdiction to hear Breynin‘s appeal once the district court has responded. We respectfully invite the district court to act with celerity, at the latest within seventy-five calendar days of the date of this decision.

For the foregoing reasons, we hereby REMAND the case to the district court. After the district court has made its determination, either party may restore jurisdiction to this Court by filing with the Clerk a letter (along with a copy of the relevant order or transcript) advising the Clerk that jurisdiction should be restored. The returned appeal will be assigned to this panel and an additional notice of appeal will not be needed.

Carlo A.C. De Oliveira (Phillip G. Steck, on the brief), Cooper Erving & Savage LLP, Albany, NY, for Necdet Aktas, et al.

Jason A. Frament, LaFave, Wein & Frament PLLC, Guilderland, NY, for JMC Development Co., Inc.

Stephen M. Jung, pro se, Schroon Lake, NY, for Stephen M. Jung.

PRESENT: GUIDO CALABRESI, JOSÉ A. CABRANES, and DEBRA ANN LIVINGSTON, Circuit Judges.

SUMMARY ORDER

Plaintiffs-appellants Necdet and Lisa Aktas appeal from the District Court‘s judgment and order, entered January 18, 2013, denying their post-trial motions following a jury trial. We assume the parties’ familiarity with the underlying facts and the procedural history of the case, to which we refer only as necessary to explain our decision to affirm.

The first issue on appeal is whether the District Court properly denied plaintiffs’ Rule 50(b) motion for judgment as a matter of law against defendant JMC Development, Co., Inc. (“JMC“). “A post-trial Rule 50(b) motion for judgment as a matter of law is properly made only if a Rule 50(a) motion for judgment as a matter of law has been made before submission of the case to the jury.” Bracey v. Bd. of Educ. City of Bridgeport, 368 F.3d 108, 117 (2d Cir.2004) (emphasis supplied). We have further held with regard to Rule 50(b) that, “[t]hough a procedural requirement, it may not be waived by the parties or excused by the district court.” Id. Because plaintiffs did not adequately make a Rule 50(a)(2) motion before the case was submitted to the jury, the Court did not err in denying Rule 50 relief.

Plaintiffs argue next that the Court erred in sanctioning them for spoliation of evidence in the form of the “adverse inference” charge. We review a district court‘s decision on a motion for discovery sanctions for abuse of discretion. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002). After careful review, we conclude that this sanction was not erroneous in light of ample evidence that plaintiffs destroyed or altered JMC‘s construction work, while excluding JMC from the property. As a result of this destruction, which may be understood as a failure to mitigate damages, we also reject plaintiffs’ contention that the comparative negligence charge was improper. See Resolution Trust Corp. v. Mass. Mut. Life Ins. Co., 93 F.Supp.2d 300, 310 (W.D.N.Y.2000) (“The duty to mitigate damages, of course, is implicit within the comparative negligence framework.“).

Plaintiffs also object to the description of “material breach” in the jury instructions as “a failure to do something that is fundamental to the contract.” J.App. 72. Where a party objected to a proposed instruction, we will vacate the jury‘s verdict if the error was prejudicial in light of the charge as a whole. Jacques v. DiMarzio, Inc., 386 F.3d 192, 200 (2d Cir.2004). Where a party failed to object to a jury instruction, we will only vacate a verdict if the error was fundamental, Jarvis v. Ford Motor Co., 283 F.3d 33, 62 (2d Cir.2002), that is, if the error was “so serious and flagrant that it goes to the very integrity of the trial,” SCS Commc‘ns, Inc. v. Herrick Co., 360 F.3d 329, 343 (2d Cir.2004). It appears that plaintiffs’ counsel waived this argument when, after initially objecting to the charge, he stated, “I think the later language is correct, that [the breach] must ... touch on the fundamental purpose of the contract. That‘s ... my position, your Honor.” J.App. 332. In any event, we conclude that, read as a whole, the charge was not so prejudicial that “[t]he jury might well have reached a different result had [an] appropriate instruction[ ] been given.” Holzapfel v. Town of Newburgh, 145 F.3d 516, 525 (2d Cir.1998).

Plaintiffs’ final challenge on appeal is that the $3,500 damages award against defendant Jung for breach of contract must be set aside because it cannot be a reasonable estimate of the agreed-upon measure of damages, namely, the cost of repair. Yet when considered in conjunction with the $50,000 damages award for plaintiffs’ negligence claim against Jung, which employed a similar measure of damages, the total amount of damages awarded to plaintiffs was consistent with the parties’ chosen instructions.

CONCLUSION

We have considered all of plaintiffs’ arguments on appeal and find them to be without merit. Accordingly, we AFFIRM the January 18, 2013 judgment of the District Court.

Read the detailed case summary