Fed. Sec. L. Rep. P 99,479 Samuel Mallis and Franklyn B. Kupferman, Cross-Appellants v. Bankers Trust Company, Cross-Appellee

LUMBARD, Before NEW- OAKES MAN, Judges. Circuit LUMBARD, September Judge Carter denied Judge: Circuit On Trust, respects. motions all Bankers third time that we have been This is the appeal then filed a notice of on October asked to review Southern June 21 from both the brought action of New York in this District 18,plain- On September 29 order.3 October Franklyn Mallis Samuel filed cross-notice of suffered as tiffs to recover losses Kupferman a prior of we have termed on result what from the appealed Septem- expressly “a unusual securities review somewhat 29 ber order. Co., Mallis Bankers Trust transaction.”1 there was to Because sufficient evidence denied, Cir.1980), 68, F.2d cert. verdict, the rendered support jury’s after 1123, 101 67 L.Ed.2d 109 449 U.S. S.Ct. charge by Judge uncontested the The arises from (1981). present appeal the fairly correctly jury and instructed Judge trial this case before Car second of issues, controlling to the we affirm respect which, jury ter, on June the after judgment against Bankers Trust. the $106,000 their on awarded the However, prejudgment conclude that we fraud, of federal securities common claims have the should been added to interest fraud, negligent misrepresentation. law and we remand for computation and judgment, of days entry judgment after July On ten in accordance with New of such interest 21,2 June defendant Bankers Trust Com on law. York the insuf arguing that evidence was pany, verdict, to the moved support jury’s ficient 50(b) 59(a)(1) & pursuant to Fed.R.Civ.P. I. judgment notwithstanding the for facts at some Most the are discussed alternative, new or, in the for a trial. On new opinion directing in our a length prior requested pre who plaintiffs, July Co., Mallis v. Bankers Trust trial.4 See com interest in their amended

judgment the summary at 71-74. A brief plaint, pursuant moved Fed.R.Civ.P. up to the flawed deal leading events to, judgment 59(e) 60(a) & to amend the the relevant necessary here for discussionof alia, jury’s on inter include such interest the issues. award. February, suggests the action in the docket sheet

1. Plaintiffs commenced this 2. 18, 1982, judgment June the against Company, was entered on a New Bankers Trust filed, judgment the was banking corporation, date on which York and other defend alia, Judgment Roll ants, of, 10(b) District of New York’s alleging Southern inter violations § by judgment was entered shows that Exchange 15 U.S.C. the Securities Act of on 1982. Clerk June 10b-5, (1976), 78j(b) and 17 C.F.R. Rule § thereunder; (1982), promulgated 240. lOb-5 § appeal from the Bankers Trust’s notice fraud; negligent misrepresen and common law since, timely pursu- judgment was June filed Pollack dismissed tation. timely 4(a)(4), post- Fed.R.App.P. a filed ant to reversed claims all defendants we judgment for n.o.v. or a new motion as to Bankers Trust. Mallis the dismissal tolls the commencement the time trial F.D.I.C., rev’d F.Supp. (S.D.N.Y.1975), entry parties “the for all until (2d Cir.1977), part, dismissed cert. 568 F.2d 824 deny- denying granting new or or trial order granted improvidently sub nom. Bankers ing any motion.” Because Bankers other such Mallis, Co. Trust 435 U.S. S.Ct. post-judgment motion Trust’s remand, (1978). the case On or, alternative, was new trial n.o.v. jury tried before Carter and days entry judg- timely ten after the filed of Bankers Trust. returned a verdict favor ment, 50(b) 59(b), ap- see Fed.R.Civ.P. Finding charge, in the in certain eviden- errors September period peal not commence until did tiary rulings, failure and in the district court’s order when Carter’s jury negligent the claim of to submit filed and entered. the motion was misrepresentation, we reversed remanded Co., Bankers Trust trial. Mallis v. new for a presented 4. The evidence denied, (2d Cir.1980), cert. 449 U.S. substantially equivalent to the second trial 101 67 L.Ed.2d 109 presented at the first trial. evidence large of this Co., focus case concerns two of Merck & a blue-chip pharmaceutical 40,384shares, blocks,totaling unregister- deposi- manufacturer. Fowler testified by Industries, Inc. securi- Equity ed National that Kates tion informed him that he was had been is- conditionally willing The stock to sell Merck sixty ties. stock at wife Au- value, to Jerome Kates percent sued of market thereby allowing acquisition by gust, pursuant $500,000 buyer realize a more shell subsidiary wholly-owned Equity resale, profit buyer if would first corporation National of owned purchase Equity National shares. condition, in an escrow Kateses. The stated Arnold, Fowler then contacted Jack an as- agreement appended merger plan, experienced sociate of Fowler’s and an at- part in relevant the shares provided torney, agreed who to purchase Equity if the corpora- must returned Kateses’ exchange National shares in for a share of profit for tion failed to show a calendar profits anticipated from the Merck deal. legend year typewritten 1970. A on the 24, 1972,Arnold, February On for a down- two certificates representing back the $25,000, payment of entered into a written the Kateses’ National cau- Equity shares with agreement Kates to all the purchase they “subject were to tioned that the terms Equity $181,- Kateses’ National shares for Agreement of an Escrow ....”5 and thereby acquired a written thirty stock, to day option purchase the Merck the The Kateses’ net corporation showed a proceeds resale of which were to split year for calendar and it loss filed with Fowler. The closing date for the Eq- petition on bankruptcy February uity purchase National was set for Febru- 14, 1971, March 1 April 1971. Between and 28, later ary extended March 3. Equity National sent three letters to Bank Trust, holding ers which had been Equi the undisputed It that February on ty National stock since late 1970 collater neither Fowler nor Arnold knew the that Kateses, al on loans to the demanding in National Equity stock was worthless. Both increasingly urgent terms the that stock be Fowler and Arnold that prior testified pursuant returned agreem escrow date, closing they telephoned had Equi- letter, April 14, 1971, ent.6 last dated ty National’s agent, transfer the National Silverman, was referred Nathan a house of Georgia, Bank and were told that attorney for Bankers Equity Trust. Na Equity relevant National certificates had no tional’s demand was soon repeated one by encumbrances other than those stemming attorneys its in a telephone conversation their unregistered from status under with Silverman. After receiving a letter Act of Securities 1933.7 Arnold testi- also dated April attorney from Kates’ fied that Kates had only showed him a legal threatening action if the stock were photostatic copy of the front side of the returned, Silverman, Equi in letter to the Equity National ne- during certificates ty May 24, 1971, National dated attorney gotiations that led to the purchase agree- denied National’s Equity request. ment had assured Arnold that the re- early February, Fowler, nothing

In verse side contained John unusual. testified, specializing however, broker in the Fowler placement un- that on February securities, registered he telephoned president Equity learned unregistered National, Childs, inquire Kateses owned Na- Equity C.H. whether tional shares. Fowler was also Equity informed National would be interested in re- 110,000 that Kates held unregistered shares purchasing Kateses’ shares. According legend 5. The undisputed continued: It 6. that Bankers Trust had a copy agreement of the escrow at the time when sold, transferred, may not be [The shares] it took the Kateses’ shares as collateral. pledged hypothecated except in accord- Agreement, ance copy with such Escrow Because Arnold had died in the interval be- be examined at office trials, testimony tween was read at the Corporation. second trial. time. prior They Na- to this knew Fowler, Equity stated National Childs business, nothing earnings, about its line of Kates for return suing was tional management; they knew not be or that those shares could shares unregistered. On being stock sold recalled that Childs Fowler transferred. from Kupferman sought financing not de- Trust will March cautioned: “Bankers through Bank his busi- You check with Franklin National the stock to you. liver Murfitt, acquaintance and social John suing get are ness Trust. We Bankers an Assistant Vice-President at Frank- he im- then Fowler asserted that stock back.” bank’s manager him lin National and called Arnold and informed mediately in- Desiring met branch. additional both Uniondale they conversation and formation, Murfitt called Arnold and Sil- Kates, being sued who admitted Murfitt testified that Silverman specific that the verman. National but denied Equity National stock was Equity Ar- him that the selling he was were involved. told shares de- he and saleable.” Silverman nold, conceding present “negotiable though Fowler, After these conver- Kates nied this conversation. meeting with sations, Na- agreed Murfitt that Franklin he of Fowler’s conver- that was told denied necessary would lend telephoned then tional with Childs. Fowler sation again $156,000. Georgia Bank of the National restric- that there were no unusual was told closing of March morning On the Fowler also testified tions on shares. plaintiffs obtained loan day, February telephoned

that he Silverman National, response and in to Mal- Franklin the 28, and, after some of telling Silverman repay- for further assurance of lis’ concern of his with Childs details conversation ment, letter, Mallis a which Arnold sent it he did inform that (though not Silverman approved, later the confirming plain- Mallis information), who him this gave was Childs in the National “participation” Equity tiffs’ he no answered that knew of Silverman stock Equity and the National offering deal concerning Equity the National litigation obliga- for to Mallis collateral Arnold’s come with mon- up and stated: “You shares .. days or less . pay thirty tion to “within will the and we deliver stock.” ey of plus profit advanced by you the funds dollars.”8 Kup- fifty ($50,000.00) enter Mallis and thousand plaintiffs Now the ferman, and practicing brothers-in-law both shares Equity The sale of the National Arnold, as an acting dentists. who at Trust the afternoon occurred Bankers for in an unrelated securi- attorney Mallis Arnold, Fowler, were March 3. Present of transaction, March 1 met with Mallis on ties Kates, Silverman, Plaintiffs and Murfitt. During meeting, this to discuss matter. closing. was con- not attend the There did Arnold, who to lose the Merck stock stood they repre- whether were flicting testimony $25,000deposit and the he did not if option Arnold, Murfitt, Murfitt both sented $156,000 required to raise the additional however, did testify, Arnold. Plaintiffs and purchase National Equity close the of Murfitt, who was they that both instructed shares, told the broad outlines of Mallis in the carrying Franklin National checks and, mentioning without with Kates deal $156,000, the loan not to disburse amount stock, deal Merck commented that the unless he was satisfied as to proceeds profits. Arnold bring “skyseraper[ would ]” of the transaction. bona fides Silverman $50,000 if Mallis would then offered pay National certificates produced Equity the deal. finance balance of contained some or all a file which from National correspondence by Equity sent relayed Kup- information to

Mallis which, Trust and as Silverman ferman, in the to Bankers who also became interested trial, may at also have contained Equity never conceded deal. Plaintiffs had heard satisfy proceeds obligation Arnold’s to Mallis. letter 8. The indicated forthcoming were used Merck deal to be agreement. appeals Both Ar- Trust from of the escrow and copy concern expressed Judge Murfitt about Carter’s denial of its post-judgment nold and legend or, on the certifi- meaning motion for n.o.v. in the alter- making “subject them native, back side trial. Bank- Specifically, cates’ a new ” . ... Agreement an Escrow Accord- ... ers Trust that the at trial testimony asserts Kates, and the escrow ing Silverman were chargeable showed that agreement and could not was not available imputed knowledge Equity National ten days. obtained for about Arnold closing prior shares’ true condition to the however, asserted, they both testified sup- the evidence does not consequently and these had been released certificates reliance, justifiable an port finding of from escrow and were saleable. Silverman essential of each of the three element making admitted such a statement. never See, e.g., to the jury. claims submitted was then suggested problem It Industries, Green, Ply-Gem Inc. v. Kates signed could be overcome if an affi- (2d Cir.1974) (federal securities with respect davit to the removal of restric- pendent fraud claim related state on sale. tions Arnold Silverman dictat- plaintiff claims were without merit where effect, ed affidavit to that which was all alleged the facts to be knowledge signed by Kates a bank notary. before The disclosed); fraudulently not see also W. closed, transaction thus with Bankers Trust Prosser, of Torts Law § $45,000, receiving unpaid balance of its Moreover, (4th 1971). ed. Bankers Trust to the loans Kateses which otherwise was to error contends it was paid have been in installments over the deci- age consider the the case in his seven years. next Kates received the bal- request sion its for a new trial. $111,728. During ance of the closing, Sil- We evi- agree with Carter that produced verman never mentioned or verdict, dence was sufficient sustain the documents, kept in the same although age we conclude that the of a certificates, file that held the stock case is not a relevant factor to a new trial Equity were relevant National determination, we nonetheless affirm shares. Carter’s post-judgment denial of relief. Following closing, the Arnold and Fowler attempted option to the to pur- exercise A. Judgment N.O.V. chase the Merck It was stock. then learned guiding ap that not the standard to only Equity were be National plied judgment shares worthless but that whether deciding Kates never n.o.v. owned any Merck stock. warranted is “whether the evidence is such subse- Arnold. $50,000 quently paid plaintiffs, that, to leaving weighing credibility without the of the $106,000. them with a loss of the considering witnesses or otherwise evidence, the there can be Plaintiffs then alleging sued that Bank- to the one conclusion as verdict that reason ers Trust had in federal engaged securities v. able men could have reached.” Mattivi fraud, fraud, common law and negligent “Hu Corporation, South African Marine misrepresentation 3,1972 March at the clos- Cir.1980) guenot”, (2d ing by or misrepresenting disclosing not (quoting Maynard, Simblest plaintiffs’ representative the true condition (2d stated, Cir.1970)). Simply of the Equity National shares. At the n.o.v. granted only should be when trial second the returned a verdict for plaintiffs (1) their complete each of claims and there is such absence $106,000. awarded them evidence the verdict that the supporting jury’s could have been the findings only

II. result or conjecture, of sheer surmise and (2) overwhelming there amount Contending that evidence was insuffi- is such verdict, cient to that support the Bankers of evidence in favor of the movant jury’s could determining Equity fair minded men not whether pose reasonable and stock was against him. National saleable. a verdict arrive at testimony Mallis’ other evidence did 168; Champion Unijax, at Inc. Id. suggest plaintiffs’ agent that Arnold was International, Inc., 683 F.2d closing, testimony must be read Cor Howes v. Lakes Press Cir.1982); Great further that he testimony Mallis’ (2d Cir.), cert. poration, Arnold, attorney, that as an had a believed — —, denied, 103 S.Ct. obligation to insure that professional held (1982). Judge that proper deal was and that Arnold’s real stan Bankers Trust “cannot meet at the duty performed plaintiffs to be agree. dard.” We closing was collect the March issues at trial principal One including the stock certifi- papers, relevant knowledge that was whether or not cates, plaintiffs pursu- and deliver them to stock was worthless could Equity National agreement. ant to their written On the light of imputed plaintiffs hand, was Arnold testified that he not Fowler conveyed which was knowledge plaintiffs who he believed were acting for 25, 1972telephone conversa February in his Murfitt, and both Mallis and represented by Trust contends tion with Childs. Bankers Murfitt, it Kupferman testified that was evidence that overwhelming there is Arnold, who been instructed and not had by Fowler of Arnold, who either was told proceeds them not turn over loan imputed or had the Childs conversation was fides of unless he assured of bona conversation on account knowledge Moreover, the evidence showed the deal. Fowler,9 acting relationship of his had conflicting and Arnold plaintiffs it agent, argues and thus plaintiffs’ plaintiffs’ interests in the deal: concern imputed knowledge had loan, i.e., security was whether the for their condition. See National shares’ Equity shares, was good, National while Equity Newman, 14 N.Y.2d Farr v. Arnold, who less concern as to the (1964) (“prin N.E.2d 369 N.Y.S.2d Equity National shares since value knowledge by notice to cipal is bound merely purchase such shares was scope all agent his in matters within pur- advantageous step highly first the information agency although fact stock, the Merck needed chase of communicated may never have been closing to meet the deadline in order money & Trust Co. v. Title Guarantee principal”); $25,000 would deposit and assure that 456-57, Pam, N.Y. 134 N.E. 525 viewing Accordingly, not be forfeited.10 agree. (1922). We cannot light most favorable to evidence in the sufficient, required party, prevailing There if not sub determinations, Unijax, n. o. stantial, that Arnold was not evidence Inc., International, 683 Champion Inc. v. pur- not for the agent, at least plaintiffs’ Equity agency not National stock would as of the law of that of the It is a basic tenet imputed plaintiffs knowledge agent, if or for that matter a Ar of an be matter law venturer, imputed joint partner to the or is were in fact adverse interests in the deal nold’s Newman, 183, principal. 14 N.Y.2d See Farr v. plaintiffs. See Marine Midland to those 187, 272, (1964); N.E.2d 369 250 N.Y.S.2d 199 Co., Russo Produce 50 N.Y.2d Bank v. John E. 31, 43-44, 428, 436, Coe, 292 N.Y.S. v. 249 A.D. aff’d, Bonham 423 961, N.Y.S.2d 405 N.E.2d 205 4000000027 540, (4th Dep’t), N.Y. 12 N.E.2d 276 forming (1980) (the premise of the basis (Second) Agency (1937); 566 Restatement principle i.e., agent imputation that an will — (1958). plaintiffs argue that 272 § Fowler was not Arnold’s duty principal’s up to the to act live agent Equity in the pertinent light all information he interest part deal that the two were not National and agent acquired when has has —“crumbles venturers, joint and Fowler ners or review princi purported an interest adverse testimony shows the con Arnold’s uncontested trary. Accounting Indemnity ple”); & Co. v. Hartford 219, 225-26, Co.,& 21 N.Y.2d 287 Walston 58, (1967). 230 234 N.E.2d N.Y.S.2d plaintiffs’ if 10. We note that even Arnold was agent, knowledge Arnold’s of the true condition 690 684; Howes v. Great Lakes

F.2d at Press the Merck deal. Accordingly, plaintiffs’ 1030, 679 F.2d at we conclude Corporation, participation did not them to require share losses, that there was sufficient evidence for the they in the joint cannot be deemed fully fairly was and instructed jury, which venturers with Fowler and Arnold. Murfitt, that agency theory, on the to find Finally, there sufficient was evi representative Arnold, not was dence jury for the to find that the element that purpose insuring deal justifiable reliance was satisfied even if was proper. Saloomey Jeppesen See & knowledge of Fowler’s conversation Co., (2d Cir.1983) (“judg- with could imputed plaintiffs. Childs verdict notwithstanding ment should and, case, Both before in Fowler’s after the only if granted there was one con- [be] conversation, Childs Fowler and Arnold could people clusion reasonable have were told Georgia, National Bank favor”). appellant’s reached —in Equity agent, National’s transfer Bankers Trust also contends that Equity restrictions on the National knowledge Fowler Arnold’s was imput and those imposed by shares were the securities ed to on the plaintiffs “uncontested evi Moreover, laws. Childs’ remarks were joint dence” that were venturers again when, contradicted following his with and Fowler Arnold in deal with statement Fowler that Bankers Trust argument Kates. This without mer warnings, would corroborate his Fowler assertion, it. to Bankers Contrary Trust’s called told Silverman there the uncontested evidence shows that plain problems were no with the shares. Al joint tiffs could not be considered venturers doubt though we reliance on such with Fowler Arnold. New Under York justified light statements was law, a joint the crucial element of venture Childs, clear warnings given by Equity Na promise the existence of “a mutual president, tional’s we believe that there was undertaking parties to share in the sufficient evidence for jury to reach a profits .. . and submit burden of contrary conclusion. See Tennant v. Peoria making good losses.” Steinbeck Ge Pekin Union Railway, 321 U.S. rosa, 302, 317, N.Y.2d 175 N.Y.S.2d (1944) (“Courts S.Ct. 88 L.Ed. 520 (emphasis original), N.E.2d 170 are not reweigh free to the evidence and set dismissed, 39, 79 358 U.S. S.Ct. jury merely aside the because the 45 (1958); Hotel, Inc., see Buchner v. Pines have drawn could different inferences 691, 692, 87 A.D.2d N.Y.S.2d or conclusions or because judges feel that mem., Dep’t 1982), 1019, 462 aff'd 58 N.Y.2d are reasonable.”); results more N.Y.S.2d (1983); N.E.2d 1347 De Kurn, also Lavender v. 327 U.S. mian, Associates, Ltd. v. Charles A. Frank 90 L.Ed. 916 (2d Cir.1982). The testi Accordingly, agree we Car- mony at the trial and March ter’s denial of Bankers Trust’s motion for letter from Arnold to evidencing Mallis o. judgment n. their agreement clearly show Arnold’s promise to reimburse the funds advanced B. New Trial. by plaintiffs pay them additional $50,000 fixed and unconditional. The complains Bankers Trust fact that Arnold’s letter indicated that re improperly denied its motion to be payment when, was made the anticipa for a new trial considering fact deal, profits ted the Merck see supra old, years then seven he by note cannot itself to a lead conclusion ruled that “the fair jus administration of that plaintiffs’ right to requires reimbursement tice that this case remain unsettled $50,000 depended on the no We longer.”11 agree age success of recognize judge’s discretionary 11. We grant are there substantial not to decision power against doubts as to our new trial a claim to overrule a trial that the verdict

691 relevant consideration on a that the has reached “a erro seriously case is not a However, trial. because motion for a new neous result” or that the verdict is a “mis denial Judge do not think that Carter’s we Bevevino v. carriage justice,” Saydjari, principally new trial was based on of a (2d Cir.1978), i.e., 574 F.2d 684 that the consideration, because he made no find- weight evi holding no basis for ing and we can find dence, damages that the awarded were ex to set aside the any that there were reasons cessive, or that for stated reasons the trial verdict, we affirm his denial. jury’s moving party. was not fair to the See Duncan, Ward v. 311 Montgomery & Co. opinion Carter’s brief states 189, 194, 85 L.Ed. 147 S.Ct. pertinent part: Miller, (1940); Wright C. & A. Federal my While own view of evidence 2805-10, Practice and Procedure at 37- §§ defendant, accords with that of the of these (1973). None circumstances did not believe that Ar- jury undoubtedly by were found the trial and in our judge, closing at the represented plaintiffs nold of the record we search have found no of the facts knowledge or that he any evidence of reason which would war allegedly misrepresen- which defendant Indeed, grant rant of a new trial. all ted. judge say the trial has done here is to that as the trier of facts he would have a new trial The alternative motion for a result reached different from that considerations, brings play into It jury. reached second is well set duty pre of which is the court’s chief judge’s disagreement tled that a trial Bevev miscarriage justice.

vent a See verdict is not sufficient reason to jury’s (2d Saydjari, ino v. 574 F.2d Jeppes a new trial. v. grant Saloomey See Cir.1978). Under other circumstances I 679; Co., en & 707 F.2d at Bevevino grant inclined to defendant’s would be 684-85; 574 F.2d at see also Fire Saydjari, motion, however, years this case is seven man’s Fund Insurance Co. v. AALCO thirdf.[12] old and the recent trial is its It Co., (8th Wrecking Cir. appealed has been United States Miller, 1972); 11 Wright supra, C. & A. once, Court the Court of Supreme 2806, at 46. § may twice and be headed there Appeals for a third time. I have serious age litigation, Nor was the of this verdict, doubts about the the fair admin years by September, over seven old justice requires istration of that this case reason a new trial. The longer. Accordingly, remain unsettled no litiga time in a passage closely contested the motion is denied. large part tion is due in to factors over Here, parties which the have little control. Although Judge says that “under elapsed most of the time was consumed in other circumstances would be inclined [he] motion,” exercising rights appellate review. Fol he mentions grant defendant’s our reversal of the district court’s lowing of a support grant no fact which would dismissing the as to Bank complaint order ordinarily new trial. The circumstances Trust, Cir.1977), (2d ers 568 F.2d 824 recognized supporting a new trial are Moore, the evidence. See Bevevino v. 59,15[3], Moore’s Federal Practice at Saydjari, Phillip Mayer, Rothkopf (2d Cir.1978); (1982); 686 n. 30 59-330 Corporation, Compton Industries, v. Luckenbach Overseas (2d 1980); 635 F.2d Cir. (2d Cir.), cert. 425 F.2d 1132-33 & n. Saydjari, Bevevino 574 F.2d 683-87. denied, 400 U.S. 27 L.Ed.2d (1970); Portman Home Prod v. American Actually, the “recent trial” Carter was Cir.1953); Corporation, ucts referring to was the case’s second. Car- Miller, Wright C. A. Federal Prac apparently commenting ter on the fact that tice and Procedure at 120-27 § had been dismissed the case once and tried However, the denial of new trial supra See note 1. twice. reviewed where the fails exercise trial court legal J. its discretion as a result of error. 6A and then the was not granted days judgment’s entry, certiorari after Court Supreme (“A 59(e) under timely as hav- filed Fed.R.Civ.P. ten months later vacated certiorari judgment amend the shall be motion to granted. U.S. improvidently ing been 1117, days entry later than 10 of (1978). A served not after 381, 55 L.Ed.2d 357 98 S.Ct. in Trust contends that resulting judgment.”), in Bankers May, trial was held (1) was properly in the motion denied because Trust. We reversed Bankers verdict for error, trial, any, if not a Judge Carter’s was ordering a new January, 60(a) clerical error Fed.R.Civ.P. Cir.1980), Supreme and the under (2d F.2d 68 (“Clerical judgments in Janu- mistakes in ... year certiorari a later denied Court by any court at 67 be corrected 449 U.S. S.Ct. ary, 1981. error, ”), (2) any, such if was A new was held in time.... (1981). trial by of June, any event, type contemplated “mistake” In neither Bankers not 60(b)(1) (“[T]he may re can be with Fed.R-Civ.P. court plaintiffs charged Trust nor judgment . .. for lieve a final delay. party any undue The motion shall be ... mistake.... itself, time, passage of time, made within a reasonable and for have been which should not a consideration subpart (b)(1)] more than reasons not [in denying in the new trial given any ”). Bank year judgment.... one after motion, to fail see how Carter’s we therefore, argues, plain since ers Trust requires even a of it reversal or mention appeal expressly ap tiffs’ cross-notice clarification or reconsideration. remand for only post- from the denial of their pealed The district court could reach same not from judgment underly motion and this record. See Bevevino v. result on we ing cannot reach the merits judgment, Saydjari, (upholding 574 F.2d at 686-87 de- Trust is in plaintiffs’ claim if Bankers though even nial new trial motion trial in its interpretation fact correct of Fed.R. deny- judge mentioned irrelevant factor 60(a) 60(b)(1). We disagree. Civ.P. judge ing motion where trial failed find new trial and justifying circumstances appeal Plaintiffs’ cross-notice of existed). agreed we that none the period ap was in fact filed within for directly from the pealing judgment.14 III. Thus, expressly if the notice had been de Finding no merit in Bankers judgment, as an from the appeal nominated contrary, Trust’s we arguments prejudgment their claim for interest would agree plaintiffs they with the are enti proper appeal be a issue on direct notwith pen tled to interest their prejudgment on the basis or of their standing propriety dent state law claims.13 Moore, motion. See 6A J. post-judgment ¶ 60.06[4], Federal concede that Moore’s Practice Noting (1971) (“where their ... the failure to include judgment motion amend law, interest, include filed sixteen interest resulted from an error of then prejudgment applicability Fed.R.App.P. 4(a)(4), timely 13. Because law de state 14. Pursuant post-judgment pends filed motion n.o.v. before on the nature issue or for new trial tolls the commencement juris and not on the basis for its federal court period parties entry appeal for all until the Yours, diction, Maternally Inc. Materni v. Your disposing order motion. Because ty Inc., (2d Shop, 234 F.2d n. 1 Cir. post-judgment Bankers Trust’s motion such 1956); Moore, 1A J. Moore’s Federal Practice timely filed, supra relief was note applies 0.305[3], (1978), at 3047-50 state law appeal period September until tolled questions prejudgment on interest the date which Carter decided upon pendent predicated claims an action Accordingly, all the motions. Octo- violations of the laws. Marx federal securities from the ber 1982 cross-notice Club, Inc., F.Supp. & Co. v. Diners’ September motion 29 judgment their order (S.D.N.Y.1975), part, in relevant aff’d filed within amend the fact denied, Cir.), cert. period underlying 54 L.Ed.2d 134 appealed. could also

693 motion under interpreted prevent right ap had ... loss of may relief be limits by peal, loss”) (quoting and within its short not to facilitate 9 J. Rule 59 [or] Frances, Ward, Boat Compare Scola v. Moore & B. Moore’s Federal Practice appeal”). Cir.1980) (defend R., Inc., (1st (1970)); Davis, 618 F.2d 147 110.08[2], at 120 Foman v. 227, 228, to use Fed.R. attempt 178, 179, ant was 83 9 compelled S.Ct. U.S. vehicles for its 60(a) 60(b)(1) 222, 181 & as (1962) (“It Civ.P. is too late in the prejudgment interest was argument to the day entirely contrary spirit and appeal period added since from erroneously for decisions on the mer the [federal rules] Joseph Lee v. judgment expired), had its to be avoided on the basis of ... mere Sons, Inc., (2d Seagram E. & 592 F.2d 39 technicalities.”). cross- Although plaintiffs’ Cir.1979) (plaintiffs’ attempt request pre as appeal technically notice of defective made, could if at judgment only interest judgment, from the we cannot appeal an all, 60(a) 60(b)(6) since under Fed.R.Civ.P. & from the appeal see how the notice of entry since years elapsed almost two amend the denial of their motion to & v. judgment), Newburger, with Loeb Co. to include inter prejudgment Gross, Cir.1979) (2d (appellate 611 F.2d 423 could have to Bank conveyed anything est question prejudg- able to consider court plaintiffs’ ers Trust other than dissatisfac interest on direct from timely appeal ment judgment. with the underlying tion See damages). district court’s decision as to We Navigation Bancroft Co. v. Chadade Steam believe, however, ex failure Co., 349 F.2d at 528-29. ship Accordingly, appeal to indicate an from the un pressly plaintiffs’ appeal being we treat as from is not fatal to our hear derlying judgment need not underlying judgment thus appeal complaint on direct their about ing arguments reach Bankers Trust’s concern Beetar, Wheatley v. judgment. See 60(a) 60(b)(1). ing Fed.R.Civ.P. Cir.1980) (2d (“[Appellate 864 n. 1 appears Bankers Trust next to ar appeal consider courts an pre gue although plaintiffs requested 59 motion as harmless error denial of Rule interest in their amended com appeal being from the and treat request jury their failure to instruc plaint, underlying judgment appeal when such object that effect or to tions to timely.”) (quoting Serzysko would be which were devoid of given, instructions as Bank, Chase Manhattan interest, con prejudgment any mention Cir.), denied, 883, 93 cert. 409 U.S. S.Ct. con a waiver of that claim. This stituted (1972)). require 34 L.Ed.2d 139 is without merit. Plaintiffs seek tention 3(c) that the notice of Fed.R.App.P. ment of 5001(a) pursuant interest prejudgment § designate judgment, “shall order appeal Civil Practice Law and of New York’s appealed or thereof from” serves as “a part Rules, 5001(a) (McKinney N.Y.Civ.Prac.L. § identification, not as step means of in 1963), provides prejudgment Navigation Bancroft appellate pleading.” a sum upon terest “shall be recovered Co., Steamship v. Chadade 349 F.2d Co. ... because of an act or omission awarded (2d Cir.1965) (construing Fed.R.Civ.P. with title depriving interfering or otherwise 73(b), predecessor Fed.R.App.P. 3(c)); to, of, enjoyment proper or or possession Co., Lines see also Franks v. United States ” long courts have held ty.... New York Thus, (2d Cir.1963). 324 F.2d 127 n. 1 a matter of interest is recoverable as designating judgment ap “a mistake cases, see, Flamm v. right e.g., in such long is not fatal as pealed invariably Noble, 72 N.E.2d 886 N.Y. judg from a specific as the intent Regalia, Inc. v. (1947); City Harmon & Mirror, Daily can be inferred.” fairly ment York, 825, 141 286 A.D. N.Y.S.2d 877 Inc., New News, York Inc. New 1955), and it is (1st Dep’t clear that denied, § (2d Cir.), cert. U.S. See, e.g., codifies those decisions. Buffalo (1976); 50 L.Ed.2d 140 see also Bankers Mallis, v. William B. Kimmins & Trust Terminal Co. 98 S.Ct. Oil Sons, 42 Misc.2d 284 N.Y.S.2d 499 (the procedure at 1120 rules of “should be mem., to, of, A.D.2d enjoyment aff’d title or possession (Sup.Ct.1964), (4th 1965); 5 Dep’t argues, 621 J. ...” Trust property. Bankers how- 260 N.Y.S.2d Miller, New Weinstein, ever, Korn & A. York H. that state law claims 5001.05, to at 50-18 -19 Practice law negligent misrepre- Civil common fraud and Hospital also Mount v. (1982); see Sinai of “act type sentation are not the of omis- F.Supp. 922, Corporation, 527 Borg-Warner that, contemplated 5001(a) sion” § 5001(a)’s In of (S.D.N.Y.1981). light § 923 event, plaintiffs’ loss of use of any in Bank, nature, Ltd. v. mandatory United Franklin funds borrowed from National International, 868, Inc., 542 F.2d 878 Cosmic to, or was not an interference “title Co., (2d Cir.1976); v. & 485 Menendez Saks of, property” or possession enjoyment under 1355, 1374(2d Cir.1973), rev’d on 5001(a), since that statute encom- § of grounds sub nom. Alfred Dunhill Lon tangible, specific interference with passes Cuba, 682, 425 don, Republic Inc. v. of contrary, Finding to we hold property. 1854, (1976), 48 301 courts 96 S.Ct. interest should have prejudgment that been a to plaintiff’s pursue held failure have that in the judgment. included prejudgment during interest request his Trust does not contest fact Bankers or even to demand such interest the trial in that, prior 5001(a) to the effective date of § a does not amount to waiver complaint his 1,1963, September prejudgment interest on See, right e.g., to interest. Julien J. right matter of all was awarded as a Corporation, Inc. v. Gulf 425 Studley, Oil grounded actions on intentional torts which Cir.1969); 949 Mount Sinai property rights, including interfered with Borg-Warner Corporation, 527 Hospital v. See, e.g., law fraud. DeLong common Cor 924; Bank at First National F.Supp. Co., v. 14 poration Morrison-Knudsen Rubber Hollywood American Foam Cor N.Y.2d 251 N.Y.S.2d (S.D.N.Y. poration, F.Supp. (1964); Noble, Flamm v. N.E.2d Noble, 296 N.Y. 1969); see also Flamm v. at Moreover, N.Y. at N.E.2d 886. 268-69, complaint (although 72 N.E.2d 886 did not turn on the kind of property cases interest, contained no demand for “[noth its tangibility involved or or intangibility. any turns on such omission in cases ing Noble, Flamm v. 296 N.Y. at 72 N.E.2d to where ... the addition of interest (“if damages represents a claim for a matter Buffalo right”); is Oil loss, pecuniary be ascertained Terminal, B. Kimmins Inc. William & certainty with reasonable as of a day, fixed 499; Sons, at 42 Misc.2d 284 N.Y.S.2d day”); then interest is allowed from that Weinstein, Miller, supra, J. H. Korn & A. Industries, v. Pilot 192 Misc. Adler Indeed, ¶ 5001.15, 50-38 to the only at -39. (Sup.Ct.1948). 81 N.Y.S.2d consequence under 5001 of fail- apparent § existing New law prior under York ques- interest ing bring prejudgment 5001(a)’s plaintiffs enactment would jury § the attention of the is that the tion to not have been entitled to interest probably not the will fix the judge, jury, date a matter on their right negligent computed. interest be from which claim, misrepresentation Long see Purcell 5001(c); see Buffalo N.Y.Civ.Prac.Law § Terminal, Co., Daily Publishing Inc. v. B. Kimmins Island Press & Oil William 499; 257-58, Sons, 42 Misc.2d at N.Y.2d 213 N.Y.S.2d N.Y.S.2d Studley, Corpora- (1961) (interest Julien J. Inc. v. Gulf Oil N.E.2d 865 actions tion, hold, therefore, 949. We was left grounded negligence waived court), that have not or the it is discretion right to such that law interest. certain their common fraud claim would have mandated such an award. pertinent of N.Y.Civ. portion find merit to Bankers Trust’s 1963) We little 5001(a) (McKinney pro Prac. Law § to interest right contention under upon “Interest vides: shall be recovered does not survive sum an act facts awarded ... or because Indeed, 5001(a)’s the New enactment. depriving interfering omission § otherwise where federal and New York law has commented under Appeals York Court lost). Although “expand[s] constrict but investment 5001(a) plaintiff’s does not § damage cases, property interest are federal we believe right most of these v. Morrison- DeLong Corporation actions.” their results are consistent with 349, 251 NY. Co., 14 N.Y.2d at 5001(a), Knudsen especially and intent of scope § (dictum). It has 657, 200 N.E.2d 557 S.2d inter prevailing policy, of New York’s light said: also been “[ijnterest into must woven § broadly and is are de 5001(a) phrased persons actions where CPLR added [in all distinctions to obliterate the use of if we are designed money] prived [i.e., the form of the action may turn on v. New Prager whole.” plaintiff make actions distinction between Co., the old Plate Glass Insurance Jersey Fidelity & neg- and on on intentional torts grounded 5-6, 156 (Cardozo, (1927) N.E. 76 245 N.Y. in- property ligence], type ... Weinstein, Korn A. 5 J. H. C.J.); see also volved, encroachment the nature 5001.01, Miller, ¶ at 50-5 to-6. We supra, interests, or property upon plaintiffs therefore, conclude, that Bankers Trust’s suffered. damages of the the nature in the loss of resulting actions tortious Thus, the tortious interest is available for were or proceeds loan “act[s] as well as intangible, interference with or otherwise interfer depriving omission[s] whether or not tangible, property to, possession enjoyment title or or ing with physically damaged. property has been 5001(a). According of, under property” § Miller, Weinstein, supra, H. Korn & A. 5 J. are entitled to we hold ly, omitted), 5001.05, (footnotes ¶ at 50-19 right, matter of interest as a prejudgment DeLong Corporation in in quoted part court for we remand to the district Co., at 14 N.Y.2d Morrison-Knudsen in accordance of such interest computation 657, 200 N.E.2d 557. Courts 251 N.Y.S.2d New York law. 5001(a) qualifica have without applying § affirmed; case remanded Judgment right matter of awarded interest as a tion prejudgment computation and addition pecu tortious conduct causes whenever interest. intangible niary damage tangible See, e.g., interests. Buffalo Oil property NEWMAN, concurring: Judge, Circuit Sons, Kimmins & Terminal v. William B. a upon touches aspect of One 500-01, (where Misc.2d at N.Y.S.2d in the administration of issue significant tank damaged storage tortiously defendant discretionary decision of whether a justice: damage on awards both for interest allowed by be influenced judge may legitimately loss of rental and use to tank and for judi- of time and resources the the amount Mermelstein, 485 tank); Spector such partic- already has devoted to process cial (2d Cir.1973) (interest award litiga- arose in this problem case. The ular law when defendant’s ed under New York Judge the District point at the where tion fiduciary duty and breach of negligence to exercise his by asked the defendant failing plaintiff to reveal material facts led for a new trial. grant a motion discretion never $250,000 party a third who to lend the suit had years seven after This occurred Co., v. Perera loan); Borrello repaid already two trials had filed and after been (interest (S.D.N.Y.1974) F.Supp. motion, Carter denied the been held. 5001(a) to maker of under awarded § his exercise of discre- stating that candidly proceeds converted checks when defendant significantly by influenced tion was to whom “party ground of checks on and its pending case had been time the of the use deprived is owed has been money opin- Judge Lumbard’s history. procedural only by can made whole of the funds and be pas- asserts that “the majority ion for aff’d, F.2d 1380 interest”), the award of itself, time, is a consideration sage curiam); v. Gran (2d Cir.1975) (per Collier given any should not have been (S.D.N.Y.1966) ger, F.Supp. the new trial mo- weight case (interest awarded in securities fraud ” Nevertheless, At 692. the ma- next to the new trial Turning tion. ... ment n.o.v. motion, that this mo- Carter noted Judge Carter’s denial of affirms jority considerations, into “brings play tion that his mention of the motion, concluding duty prevent chief of which is court’s his rul- inconsequential to time factor miscarriage justice.” point At that he I do not believe respect, ing. With Saydjari, cited Bevevino v. attempt disregard signifi- majority’s decision, (2d Cir.1978). That at will Carter’s statement cance of Carter, concerns the by Judge cited page I therefore confront analysis, and withstand setting aside standard proper- his discretion was whether issue of the evidence. Bevev- view, my passage In ly exercised. judge that a district would not ino noted procedural history time and simply a new trial granting warranted factors for the District legitimate were verdict, disagreed jury’s he with a because I For that reason concur Judge to consider. “ it that the ‘quite if clear portions and in all the Court’s ” seriously has reached a erroneous result.’ opinion concerning issues majority Id. 6A Moore’s Federal Practice (quoting the denial of the new trial mo- other than (1973)). Hav- 59-160—59-161 59.08[5] tion. standard, the correct ing thus identified then Judge Carter wrote: I. other circumstances I would be Under majority’s strands to the There are two motion, grant inclined to defendant’s Judge ruling Carter’s analysis of however, years this case is seven old and First, majority for a new trial. motion [actually, recent trial is its third ruling his as if he explanation views his second, after an initial dismissal of that, been the had said if he had simply complaint]. appealed It has been trier, jury’s have with the he would differed once, and Supreme United States Court this view of the record the verdict. To Appeals twice and Court the traditional rule that majority applies there a third time. I headed disagreement trial mere with a judge’s verdict, have doubts about the serious is not sufficient basis for

jury’s verdict justice requires fair administration a new trial. The conclusion granting longer. that this case remain unsettled no Judge reached is that whatever Carter said the motion is denied. Accordingly, passage about the of time is irrelevant since Judge event the verdict It clear to me that Carter he did not consider seems evidence, the correct and stated contrary weight recognized to the of the standard he that he would have found the standard met standard that would have had to find he could have a new trial had it not been for granted granted was met before Second, history of time and the of liti- majority passage states that motion. By referring duty the evidence to a court’s Judge gation. on its view of Carter “miscarriage justice” and ex- grant prevent was not entitled to a new trial. This renders his reference to the his “serious doubts” about the ver- pressing conclusion also dict, aspects merely express I find both he did more than disa- time factor irrelevant. verdict, flawed, something the first because it with the he analysis greement of the of the Judge already disposing what said and done in motion misinterprets short, n.o.v. In the District because it involves a decision for the second significantly, exercised his discretion authority. our beyond on the basis of the decisively, passage if not Judge Carter first considered defendant’s procedural history time and the of the n.o.v. In denying motion for case. motion, he noted his with the disagreement aspect majority’s second of the anal- verdict, acknowledged that the evidence verdict, that even if Carter had suggests sufficed to re- support thereby ysis to set an inclination aside the quiring deny judg- expressed him to the motion for evi procedural time and the against weight history verdict It dence, doing erred in so. defendant’s motion for a he would have new majority trial, clear whether entirely is not we should remand the matter to him not consider the means that it does to reconsider the motion in the exercise of of the evidence contrary weight regard his discretion without to these fac- it an abuse of discre that it would consider tors. Whether these were impermissible set aside the ver tion if Carter had factors merits further consideration. to the of the evi contrary weight dict as ruling that such a would have

dence and II. subject Clearly appel been to reversal. it unsettling many No doubt even to late court has no to make its own authority consider whether a judge entitled take of whether a contrary assessment verdict is the protracted history into account of a case weight of the evidence. See 6A making discretionary ruling. aspi- Our Moore’s Federal Practice 59.08[5] toward a perfectable system jus- rations And, granting an order a new trial though deeply ingrained tice are so we tend to because the verdict is thought ruling recoil at the that a a litigant generally the evidence is reviewable for would have received at an earlier stage of a final upon appeal abuse of discretion litigation may legitimately be denied to him judgment, e.g., Massey Corp., v. Gulf Oil at a later even (5th Cir.), denied, stage, though request cert. U.S. (1975); is timely according appli- 96 S.Ct. L.Ed.2d 57 Fire relief to the rules man’s Fund Insurance v. Aalco Wreck Co. cable to his motion. It is an instinctive (8th Cir.1972), ing Co., 466 F.2d 185-87 among judges lawyers reaction denied, cert. never be justice expedi- must sacrificed to (1973), L.Ed.2d 592 this Circuit has dis normally a view that favors ency, additional authority claimed the to review such a rul without procedures regard resulting de- Portman v. American Home Products ing, Underlying this reaction is a lays. percep- (2d Cir.1953); 201 Corp., F.2d 848 see justice solely tion of focuses on the Corp., v. Luckenbach 425 Compton Overseas particular ignores outcome of a case and (2d Cir.) 2 (affirming 1132 & n. for frequently competing jus- concern new trial because verdict not denying order a litigation system tice in the as whole- evidence), against weight of the cert. de to all those who must suffer further justice nied, 175, 27 400 U.S. 91 S.Ct. costs, if, delay frequently incur further (1970). example, seven-year-old for a case tried eighth year proceedings an of twice receives I therefore conclude that trial. and a third See United States relied on the of time and explicitly passage Machinery Corp., F.Supp. United Shoe procedural history deny- of the case in (D.Mass.1950) J.) (“The (Wyzanski, defendant’s motion for a new trial and ing obligations has who parties Court that we cannot of ignore significance heard.”). The issue posed have cases to be that he have doing by ruling so would by Judge ruling part is of the Carter’s granted erred had he How- motion.1 confront- challenge, rarely fundamental too ever, we have authority not disclaimed the directly, striking appropriate ed bal- granting to review an order a ance between the benefits of a meticulous judge motion for a new trial if the trial to achieve standard, system litigation, striving per- applied Compton an incorrect results, time, and the costs in fection Corp., supra, v. Luckenbach Overseas money, and other resources that such a impermissible F.2d at 1133. If it really system for entails. passage Carter to consider If, contrary we have to Portman v. American Home doubt whether would found an abuse Corp., supra, for Products abuse we could review this if discretion on Carter had of granted record setting a of discretion an order aside a new trial. evidence, I of the a third trial of this case maintain distaste for extravagant Carter’s too would be It regards it as an willing is to view what devoted already and resources time

that the a trial for the exercise of improper ground relevant are not single case to a consequential as less judge’s discretion litiga- of that future course aspect of than it litigation stage late time considering the judge trial Any tion. stage. at an earlier have been viewed might will litigation phases various to allow already the time that has weigh inevitably courts have articulated occasion On setting in routinely This occurs elapsed. of time and passage significance discovery, the start the end of deadlines influencing the case as a factor history of a witness, examination of a trial, aof litigation. The Su course of procedural occasion, length of aggregate and, on consideration has undertaken preme Court at trial. of evidence presentation each side’s have resubmitted to that it would of issues relatively the issue in pose These instances need to but for the appeals, court of limiting terms, judge for the is easy many years old. litigation already terminate time for a future task the amount Commission, v. Federal Maritime Consolo perform- already spent time light 1018, 1027, 16 607, 621, 86 S.Ct. 383 U.S. dif- They qualitatively are task. ing Brown-Pa (1966); O’Leary v. L.Ed.2d 131 ruling, which Judge Carter’s ferent Inc., cific-Maxon, 340 U.S. S.Ct. proce- of time and passage permits This 95 L.Ed. 483 Court to influence the case history dural rather than re damages, has redetermined Yet claim. legal of a contested resolution court, conclude the trial in order to mand to must not be principle at work the common Indus litigation. Chris-Craft protracted requested party The denied overlooked. tries, Piper Corp., Aircraft Inc. an additional witness or depose time Cir.1975), rev'd on other 186-87 have lost testimony may trial present 51 L.Ed.2d grounds, U.S. S.Ct. obtaining legal rul- evidentiary basis for (1977); Georgia-Pacific Corp. U.S. have secured. ing might it otherwise Inc., 446 F.2d Papers, Plywood-Champion to the out- of time contributed passage has denied, 404 (2d Cir.), cert. come. (1971).2 L.Ed.2d 114 This the dam willingness to determine judges Court’s appellate I believe that trial instructive. especially ages the time and resources al- Chris-Craft have considered recalcula simple did not involve a variety in a of That case ready devoted to item, in of a disallowed ruling light of a tion situations where the outcome an exercise of the fact-find required for a stead implicated. What is rare is directly normally entrusted ing responsibility to reliance on these factors. judge articulate a loss of determining court. In Indeed, weigh district may subconsciously some shares, the the decided what to them- value of Court these factors without articulation alleged the ille shares were worth before Perhaps occurring that is what is selves. thereafter, and in and their worth majority gality when the states appeal on this select finding, the latter the Court making not consider the may that Carter expert views of conflicting trial and ed between the of time in a new passage 516 F.2d at 189-90. in this case. It is witnesses. ruling then affirms this noted that opinion explicitly that the shares Court’s just possible majority Employment Pegues Mississippi State Ser effect are Sauers v. Alaska 2. To the same Inc., vice, (5th 1983) Barge Transport, 247-48 699 F.2d 766 n. Cir. 600 F.2d (because age 1979) eight death of trial (9th (because pending of of lawsuit and suit was Cir. appellate judge on merits appropriate court resolves issues years appellate rate court selects Ma by court); compensate district Weaver v. pre-judgment not reached interest to for ef of Bank, (3d Cir.1983) (be rine damages, 683 F.2d fect of inflation on instead of remand age appellate ing court decides Felder v. United court), cause of of lawsuit district Cir.1976) transferring States, procedure (9th (b to use state whether eca court, re pendent instead of years appellate claims to state pending use suit was seven court). manding by for decision district also award). See damage court redetermines that in the federal adoption precept role of a district the of the normal displacement damage award not no doubt been influenced Sev- court, resulting a courts has considerations, origin as a district court its the same enth Amendment necessarily remand,3 was influ- law, Graham, on have awarded New Trials would at common in its that the case was by the fact (1834), bring litiga- enced reflects the need to this on its third year conclusion, sixth result re- tion to a even if the at 186. Id. Court. unjust. an judicially mains viewed Such in the con- as Holmes observed approach, pro- and the passage if the of time Even simply trial is “a limiting length, text of appropriately history cedural the of life.” Reeve concession to shortness question re- rulings, some influence Dennett, 145 Mass. N.E. factors permissible whether these are mains (1887). grant deciding whether to consider ground new trial in a civil case on judge’s is a discretion at its only Not trial weight against the verdict a verdict is deciding fullest when whether new trial on party seeking A evidence. evidence, but the weight against if its complain little to ground this has special pertinence time has a passage re- jury already A has motion is denied. exercise of that discretion. Since it, and a disputes against solved the factual for the judge rendering judgment is not a motion for rejecting judge, op- it the moving party simply giving evidence n.o.v.,4 has determined jury weigh have another portunity jury to permit legally sufficient evidence, judge granting pre- the motion judge a trial the verdict. Whether return greater that there is some sumably believes not a new trial will nevertheless award will return a jury that a second likelihood with the ver- disagrees he simply because view in accord with his against he it as regards dict but because bearing Time has a of the evidence. weight it is as he assesses of the evidence weight passage likelihood. With In this discretionary matter. entirely fade, time, and ascertainment recollections grant or to review the authority Circuit the Thus, in more difficult. of facts becomes explicitly a motion has been denial of such case, was entitled to con- Judge Carter v. American Home disclaimed. Portman whether the verdict was not sider such a Even when Corp., supra. Products but also of the evidence thought granted, generally it is motion whether, litiga- age in view of the a second time if granted it will not be tion, likelihood that there was sufficient verdict as jury reaches the same the second ver- would return a “better” another a new jury. rarely grant first “Courts dict. the facts in upon two verdicts trial after the fault of though Even it is not error or except same party, favor of the ” already has been this case defendant R.R. v. Louisville & Nashville law.... pending seven twice and had been tried Woodson, 614, 623, 10 ruled, think he I when years Moore’s 6A 33 L.Ed. See taking into entirely warranted (1983). Though was Practice Federal 59.08[5] virtually approach legal principles, have been entitled adopted would 3. The Court damage damages award would not be the minimum and that its between ensured to award figure would as the the District have been the same amounts that could maximum revising upwards to more awarded. In committing have reversible error. without awarded damage calcula $1.6 million $25 than million a low, that was too tion of the District Court per- suggestion that Carter is no 4. There upper limit of its redeter- stated that the Court procedural passage of time or the mitted the minimum amount mination would ruling history influence his on of the case to without could have awarded District Court n.o.v., a non- motion for defendant’s error, committing Indus reversible Chris-Craft discretionary ruling on an issue of law and one tries, Corp., supra, Piper Inc. v. Aircran pro- further trial court no risk of that entailed remanded, been F.2d at 187. Had the matter way ceedings he ruled. whichever Court, view of this Court’s the District advised proce- and its age account the Rule His denial of history.

dural invocation commendable

motion was the civil rules Rule 1 that

the command speedy, the just, secure “to

be construed ac- every determination inexpensive

and applaud I Fed.B.Civ.P.

tion.” influenced stating what candidly motion, I the new trial ruling his denial of affirming majority

join

that motion. INC., Appellant,

BRINK'S YORK, Appellee. OF NEW

The CITY INC., Appellant-Cross-Appellee,

BRINK'S Nardo, ADAMS, Anthony Trevor De

John

Fairweather, Florio, James Gar Richard Solomon,

giulo, Do Michael William J.

novan, Gitto, William McIner Francis Marco, Sprin

ney, Anthony James San Nardo, Joseph

gett, John Barrera and

Appellees, Hernandez, Olivari,

Jorge Ramon Rodriguez,

Jose

Appellees-Cross-Appellants. 82-7782, 82-7788.

Nos. Dockets Appeals,

United Court of States Circuit.

Second 24, 1983.

Argued March 6, 1983. Sept.

Decided

Case Details

Case Name: Fed. Sec. L. Rep. P 99,479 Samuel Mallis and Franklyn B. Kupferman, Cross-Appellants v. Bankers Trust Company, Cross-Appellee

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 1, 1983

Citation: 717 F.2d 683

Docket Number: 783, 987, Dockets 82-7734, 79-7780

Court Abbreviation: 2d Cir.