James Dunlap-Mcculler v. The Riese Organization Mannu Sohi Robert Gladstone Gary Chielmewski

rule, party may upon an adverse not rest allegations

the mere or denials of the pleading[s], party’s

adverse but the ad- response, by party’s

verse affidavits or rule, provided in

as otherwise must specific showing

set forth facts genuine

there is a issue trial.” party

It is the adverse to a motion for

summary judgment who the burden bears providing spe- affidavits forth which set showing genuine

cific facts is a there Here,

issue for appellant made in response blanket denial to the Govern-

ment’s claim for the amount of taxes owed.

It appellant was the who did not meet her proving genuine

burden in there was Summary judgment

issue of material fact.

accordingly properly granted.

III.

To summarize:

We properly hold that district court

held that agency the PCC an under the control, PCC,

test of and that it is the

acting in agency its role as an of the Gov-

ernment, paid salary of its em-

ployees. The income an employ- earned as

ee of agency exempt is not under being 911. genuine There no issue of fact, summary

material judgment ap-

propriate.

Affirmed. DUNLAP-McCULLER,

James

Plaintiff-Appellant, ORGANIZATION;

The RIESE Mannu

Sohi; Gladstone; Gary Robert Chiel

mewski, Defendants-Appellees. 91-7676,

Nos. Dockets 91-9292. Appeals,

United Court of States

Second Circuit.

Argued Sept. 1992.

Decided Nov.

ALTIMARI, Judge: Circuit Dunlap-McCul- James Plaintiff-appellant appeals judgment a United States ler District of District Court Southern Jr., (John Martin, Judge), York S. New following jury a trial on his claims second retaliatory discharge. of discrimination and appeal, Dunlap-McCuller also chal- lenges court’s of a motion defendant-appellee, made the Riese Or- (“Riese”), At ganization for a new trial. Dunlap-McCuller represent- both trials however, by counsel, proceed- now ed ing 'pro se. trial, conclusion of the first

At the Dunlap-MeCul- for jury returned a verdict ler, unlawfully finding that he had been against on account discriminated race, VII of the Civil in violation of Title Rights Act 1964 and 42 U.S.C. 1981 et § unlawfully seq., and that he had also been age, discriminated Age in Em- violation Discrimination (“ADEA”), ployment 29 U.S.C. Act (1988). The seq. 621 et awarded § damages in the amount Dunlap-McCuller $134,000 claims. In addi- for these two tion, Dunlap-McCuller jury found that filing in retaliation for had been terminated Equal of discrimination with Employment Opportunity Commission and of Human York State’s Division New VII and 42 Rights, in violation of Title Dunlap-McCul- and awarded U.S.C. § $75,000 for this claim. ler judgment for notwithstand- Riese moved verdict, pursuant to Fed.R.Civ.P. trial, 50(b), a new and in the alternative for 59(a). pursuant The dis- Fed.R.Civ.P. judg- for trict denied Riese’s motion ment n.o.v. motion but trial, jury's verdict finding new clearly against weight of the evi- dence. a second returned After pro Dunlap-McCuller, se.

James on the retalia- for verdict $1,500 alone, him Steer, City (Larry and awarded L. New York tion claim Richard judg- Harris, Malito, entered Hutcher, damages. & The district court John Davidoff counsel), accordingly. Pursuant to 42 U.S.C. defendants-appellees. ment the re- Dunlap-McCuller moved for $64,937.50 ALTIMARI, covery fees. MINER, Before: Reasoning WALKER, Judges. Circuit approximately recovered of what he had presently were 2% vacant. Dunlap-McCuller sought damages, Judge Martin deter- was instead position offered a cashier, as a mined that the fees should be limited to accepted. which he Dunlap-McCuller was $1,000, representing of what the court 2% years old at the time. appropriate deemed an full fee had Dun- Dunlap-McCuller promoted was to the lap-McCuller succeeded on all of his claims. position night manager September, in appeal, Dunlap-McCuller first con- 1984. According to Dunlap-McCuller, this tends that the district court its abused dis- position was effectively that of an “assis- in granting cretion Riese’s motion for a manager,” tant responsibilities, Appellant new trial. also maintains that pay, opportunities promotion for asso- the district court abused its discretion and ciated position with this were significantly committed error during reversible less than those position associated with the course of the by admitting second trial into “day manager.” This observation was transcripts telephonic evidence the depo- confirmed during the cross-examination of previous sitions taken the day of witnesses several employees. Riese According to in pre-trial not listed Finally, order. Dunlap-McCuller, of the approximately Dunlap-McCuller argues that the district forty “day managers” (or general manag- court committed clear error in calculating ers) met, that he personally had attorneys’ the award of one of fees. them was fifty black or over years age. below, For the reasons set forth we af- firm, part, remand, in and vacate and Appellant lodged testified that he a com- part, with instructions to hold a new trial plaint to his supervisor, immediate a Mr. limited to the issue of damages for retalia- Ralph, in the fall of 1985 concerning the tory discharge. addition, treatment of blacks with regard pro- court’s award of fees is vacated motion and staffing. According to Dun- and remanded with instructions that follow- lap-McCuller, day the next Ralph Mr. ing the new trial the district court set ade- “goddamned called him a nigger” and fired quate attorneys fees in a manner consis- him. Dunlap-McCuller was rehired opinion. tent with this complained after he Ralph’s superi- to Mr. or.

BACKGROUND Appellant complaint filed a with the On June Dunlap-McCuller, a Equal Employment Opportunity Commis- fifties, complaint black male his filed a May sion on complaint 1986. This under the ADEA and Title charging VII subsequently transferred to the New York Riese, employer, his former with discrimi- State’s Rights. Division of Human Accord- age nation based on and race. Dunlap- ing to Dunlap-McCuller, employees of complaint charged McCuller’s also Riese began Riese to harass him after shortly he discharging with him in retaliation for hav- filed this complaint. In-particular, filed a he testi- discrimination with Equal fied Employment that he was Opportunity Com- transferred to different mission and New York State’s Division of restaurants between 15 and 20 times Rights. Human month, course of a days his off were changed notice, without staffing and the juryA trial January was held on 15 and during night restaurants his shifts as Dunlap-McCuller 1991. At trial testi- manager severely Dunlap- were reduced. applied fied that he position as a McCuller contrasted this situation with the manager June, restaurant with Riese in prior circumstances that existed filing 1984. Riese operates approxi- owns and complaint, where, his example, he was mately 275 restaurants in the New York metropolitan transferred three or four area. times a six According Dunlap- McCuller, despite qualifications period month order to serve as a “troub- and the availability of a managerial posi- number of leshooter” at various restaurants owned tions, he was posts informed that no such Riese. age Finally, recall was over the of 50. who undisputed that It during Op- admitted cross-examina- President of Gladstone by Riese’s Vice

was fired Gladstone, tion that was one of the September erations, Robert highest paid night managers, and that em- According Dunlap-McCuller, 28, 1986. ployees paid perfor- on their were based by a non-black who replaced not mance. could younger. Gladstone significantly termi- appellant’s reason for

remember case, plaintiff’s again At the close of evi- presented Riese nation. evidence, at the close of all of the defen- incidents, which two relating to dence upon plain- dant moved for dismissal based in Dun- resulted justifiably Riese claimed prove prima tiff’s failure to case. facie dismissal. lap-McCuller’s jury Both motions were denied. The re- Dunlap-McCuller, in a ac- allegedly occurred turned verdict incident The first by interrogatories in the brought companied to which May, was not of but the middle early jury plaintiff that had been dis- until indicated Dunlap-McCuller’s attention against age his he had criminated both immediately after June —almost jury his found that According to the testi- and race. The also complaint. filed his Opera- Dunlap-McCuller terminated in had been President of Riese’s Vice mony of having a Gladstone, retaliation for filed dis- tions, Riese discovered Robert Equal Employment depos- crimination with the in the amount of discrepancy Opportunity jury The award- restaurant Commission. from the to its bank its made $134,000 appellant’s night the ed on dis- Dunlap-McCuller was damages where claims, $75,000 on claim crimination his admitted manager. Gladstone retaliatory discharge. did not that he during cross-examination receipts to docu- or any bank records judgment moved for notwithstand- Riese Dunlap- missing deposits. While the ment or, alternative, in the the verdict re- sign a statement McCuller did motion for a new trial was new trial. The incident, responsibility for his counted According granted June on 1991. by signature his was coerced that he claims Martin, “the view is that the Judge Court’s employment. of the loss threat clearly jury’s against was so verdict weight concern- of the evidence that a new trial evidence also introduced Riese granted.” Appellant moved in allegedly took should be incident that ing a second stay Dun- this the district court’s order On this date Court place July pending appeal. This motion was denied as reportedly discovered lap-McCuller was non-appealable and a second trial was held girls or 10 adolescent teaching a clinic to 8 in Shop, he was October 1991. Hayes where at the Coffee According day man- to the working. then by appellant presented The at evidence Shop, when he arrived ager of Coffee almost identical to that the second trial was shift, Dunlap- his to start at a.m. 7:00 which he had introduced the first instructing in the midst of light significant surprisingly, in of the Not women. young these Dunlap-McCuller af- awarded to took that this event vigorously denied sought augment ter first Riese Dunlap-McCuller was place. The fact presented Spe- in its the evidence defense. despite his by day manager, not fired cifically, sought to introduce into evi- Riese so, authority to do could have having the purporting to demon- dence two letters supporting as by been construed that the schools which had strate denial. Dunlap-McCuller’s degree his Ph.D. his correspondence may in schools. These law were evidence that Additional being purpose offered the fact that letters were included have considered Appel- managers impeaching Dunlap-McCuller. day super- of approximately 1985/86, deposition and at lant had testified at could vised Gladstone black, degrees after that he received both person and trial who was recall one study, regular in- completion of courses he could person also the one eluding classroom instruction and seminars evidence should have remained with the Britain. The letter Great from James jury. According to Dunlap-McCuller, the Fry, signed capacity who it his claimed court, by granting a new trial be- president as the of Blackstone School of cause it found jury’s that the verdict was Law, and the letter Cooper, from Bruce against weight evidence, of the imper- signed who his letter as the dean-founder missibly usurped role as the trier School, Braintridge contradicted this of fact. While sympathetic we are to Dun- testimony. The district court found that lap-McCuller’s contention, we are con- these letters not been authenticated. by prior precedent strained Circuit, in this letters, an effort to authenticate these and consequently must hold that the dis- supervised telephonic two trict court’s of a new trial is not depositions Fry Cooper during reviewable. middle of the objected trial. McCuller A district court order granting deny or procedure, part, because these two ing a motion for a new trial grounds on the individuals were included Riese’s wit- that a verdict is weight pre-trial ness list or in the order. This evidence is not reviewable in this Circuit. objection was overruled. These two indi- See, e.g., Kirschner v. Comp the Office of viduals testified that their schools were troller City of N.Y., 88, 973 F.2d 95 of schools, correspondence and that while (2d Cir.1992); Roberts v. Consolidated Dunlap-McCuller had degree received a 21, Corp., (2d Rail 893 F.2d Cir.1989); 26 them, from each of he had never attended Newmont Co., Mines Ltd. v. Hanover Ins. classes or seminars at the schools. The 127, (2d Cir.1986); 784 F.2d 133 Portman transcripts depositions of these were subse- v. American Home Corp., Prods. 201 F.2d quently read into the record. 847, (2d Cir.1953) (L. Hand, 848 This At the conclusion of the second trial the Circuit’s grounded rule is Supreme jury returned a verdict in favor of Riese on holding Court’s in Fairmount Glass the discrimination claims. The did Co., 474, Works v. Cub Fork Coal 287 U.S. Dunlap-McCuller find that was fired in re- 481, 252, 254, 53 (1933) S.Ct. 77 L.Ed. 439 having taliation for filed a of dis- Johnson, and United States v. 327 U.S. crimination, but awarded Dunlap- 106, 111, 66 S.Ct. 90 L.Ed. 562 damages. McCuller Pursuant to (1946),upholding district court decisions re- 1988, 42 Dunlap-McCuller U.S.C. filed § fusing grant litigants new trials. We $64,937.50 fees. The dis- believe, however, that different consider- trict court determined that fees should be ations are at issue when a district court $1,000 limited to of what the court —2% grants a motion for a new trial because it would have awarded attorney had Dun- finds clearly against the verdict to be lap-McCuller succeeded on all of his weight of the evidence. 11 See Charles A. appellant claims—because the had only re- Wright Miller, & Arthur A. Federal Prac- covered approximately of what he was 2% 2819, (1973) tice & Procedures at 123-27 seeking. (criticizing non-reviewability appeals. now grant of a new trial criticizing while also appellate review of the denial of new trial DISCUSSION motions). Specifically, “[ajppellate action I. The District Court’s Grant a New protects in this jury, context role Trial Amendment, as envisioned the Seventh appeal, Dunlap-McCuller running contrary first rather than to it.” Id. at argues Indeed, district court abused its we note that most other cir- granting discretion in Riese’s motion grant cuits review the of a new trial on the new trial. grounds sufficiency maintains of the evidence un- that because there conflicting See, evidence der an abuse discretion standard. concerning charges e.g., Stores, Inc., discrimination Hill v. Winn-Dixie 934 retaliation, the task weighing 1518, (11th Cir.1991) (reversing this F.2d 1528

GO cn supervising telephonic depositions dur- two under this standard a new trial allowing evidence the middle sufficient there was verdict); v. testimony given depositions at these be support Coffran (1st Inc., 5, Clinic, 683 F.2d 6-7 Specifically, Dunlap- into read evidence. Hitchcock 1087, denied, 459 Cir.) (same), U.S. argues procedure cert. that this (1982); 571, Grove 74 L.Ed.2d 933 inappropriate 103 S.Ct. because the two individuals 433, Inc., Bradstreet, 438 F.2d & v. Dun deposed were not included Riese’s wit- denied, (3d Cir.) (same), 404 cert. 440-41 pre-trial ness list or in the order. This 204, 898, 175 30 L.Ed.2d 92 S.Ct. U.S. is without merit. contention Duncan, 49, 55 (1971); v. Duncan permit A decision to or to district court’s 913, denied, Cir.) (same), 389 U.S. cert. testimony by exclude a witness who (1967). This 239, 19 L.Ed.2d 260 88 S.Ct. pre-trial in the order will not not listed is, nevertheless, empowered panel a clear abuse of discre disturbed absent precedent longstanding overturn a See, e.g., Napolitano Compania v. tion. recently been reaffirmed Circuit that has 382, Vapores, 421 F.2d Americana de Sud See, Thomas E. panel. by another (2d Cir.1970); Pennsylva Clark 522, Corp., 900 F.2d Hoar, Lee Inc. v. Sara Cir.1964), R.R., 591, (2d F.2d 595 nia 328 — -, denied, Cir.), U.S. (2d 527 cert. 1006, 1943, denied, 377 U.S. 84 S.Ct. cert. (1990); 132, L.Ed.2d 100 112 111 S.Ct. L,Ed.2d (1965); Beissel v. 1054 see also Corp., 623 v. Chemical Constr. Kremer R.R., Pittsburgh Erie & Lake (2d Cir.1980), 786, aff'd, 456 U.S. F.2d (3d denied, Cir.1986), cert. (1982). 72 L.Ed.2d 262 102 S.Ct. 94 L.Ed.2d 152 U.S. S.Ct. authorized, were so if we Even (1987). In the court outlined the Beissel court abused issue of whether evaluating whether an exercise criteria one. Almost would be a close its discretion appropriate including: as of discretion by Dunlap presented the evidence all of (1) in prejudice surprise the or fact the of his own testi in the form McCuller was (2) ability party the of the opposing party; prepon does not this evidence mony, and (3) extent of prejudice; to cure the the of heavily his favor. On the basis derate orderly the and efficient trial disruption of not appeal on we would the cold record case; (4) the or willful of the and bad faith the a new non-compliant party. 801 F.2d ness of weight the evidence trial on of a new applying In these criteria at 150. for those occa be reserved grounds should case, we find that the trial facts of this jury’s egre verdict was sions where discretion con court did not abuse its a conclusion is such gious. ducting depositions and in admit these two holding step from a significant removed given ting testimony into evidence. abused its discretion. that the district court court, perjured If not cannot make district we Unlike the prejudiced concerning he not have been a witness’s cred himself would determinations Dunlap-McCuller’s by depositions, solely evi which were taken ibility. Because solely contradicting of his testi purpose consisted almost statements dence concerning evaluation of his credibili his educational mony, the court’s he had made undoubtedly deciding Therefore, ty any prejudice crucial background. clearly sup evidence did Dunlap-McCuller’s whether the own resulted was of However, we cau port by verdict. making and could have been cured testi- empowered capa jury is and depositions, tion that the truthfully. taken fying These credibility, evaluating a during witness’s judge’s ble chambers rarely be dis and this evaluation should recess, disruption any serious did not cause turbed. Finally, Riese should while two witnesses on its wit- have included the Teleyhonic Deyositions II. The list, having ample time had more than ness relevance, their existence argues that discover Dunlap-McCuller next long discovery by given the two trials its discretion the district court abused them, proceeded tory firing we are not period promoted would have been by position defendant to the manager, to hold that the district court prepared damages substantially this could be higher. its discretion on the basis of abused factor alone. We note that the district court’s on the issue was somewhat con- Lastly, note that we Fed.R.Civ.P. fusing may have contributed to the 30(b) telephonic depo expressly authorizes unsupported The charge appeared award. the court finds that a witness sitions when to indicate that an pay award of back could greater at a distance than 100 miles from is only run until the date on Dunlap- place of the trial or is out of the coun McCuller initiated action. this As we have try. There need be a prima facie stated, Dunlap-McCuller is entitled to the showing that would allow the issue salary amount of that he lost from the date answering party’s identity decided of his termination until the date of the jury. Bank v. First State Denton judgment. See, Weaver, 922 F.2d at Co., Maryland Casualty 918 F.2d 1528; City Segundo, Thorne v. El (5th Cir.1990). Therefore, the district court (9th Cir.1986) (“the F.2d permitting telephone did not err in the two compute should backpay award from depositions to be taken. the date of the discriminatory act until the judgment.”). date of final III. Damages Retaliatory Discharge For remand, judge should also carefully reviewing pro In this se equitable consider the remedy of pay front conclude, litigant’s appeal sponte, we sua given that impossible reinstatement that there is no in the record for an basis point. See Dominic v. Consolidated Dunlap-McCuller’s award of $1500 Y., Inc., Edison Co. N. 822 F.2d Appellant retaliation claim. claimed that (2d Cir.1987); Whittlesey v. Union making per he was week at the time $375 Corp., (2d Carbide 728-29 discharge, Riese’s while Director Cir.1984); see also Shore Federal Ex Dunlap Human Resources testified that press Corp., earning per week as of Cir.1985). course, mitigation Of of dam event, any that date. there is no indica in, ages Dominic, must be factored 822 any tion that had income 1258, F.2d at pay and an award of front 28, 1986, September between when he was unduly speculative. cannot be See Whittle 19, 1986, discharged, and October the date sey, evaluating 742 F.2d at 729. In wheth on which he commenced his employment at awarded, pay er front should be the district Macy’s. Appellant’s salary just loss of for should determine “whether these three weeks totaled at least $1050. ending illegal aid in award will discrimina addition, Dunlap-McCuller testified that rectifying tion and it harm causes.” during the year employment first at Shore, 1159; 777 F.2d at Thomp see also $240, Macy’s weekly salary 257, (D.C.Cir. Sawyer, son v. 678 F.2d 286 pay was at least less than Riese was 1982). year Macy’s, him. After his first at appellant went on to earn more than he IV. Attorneys’Fees Award of by employed earned while Riese. Howev er, pay because back runs from the vacating date of Because are the dam we see, judgment, termination until the age remanding date of award a trial limit Gallardo, Inc., damages, Weaver v. 922 Casa ed to the issue of 1515, (11th Cir.1991), Dunlap F.2d 1528 court must recalculate its award of attor neys’ taking entitled to at minimum an addi fees after into account $5,720. represents damages attorney tional This amount increase obtained and Dunlap-McCuller’s difference facilitating between sal hours billed. ary Macy’s representation Dunlap at and Riese’s process we must take note of salary addition, paid that it him. In if McCuller’s contention that appellant can by show that but for the retalia- court erred in its initial calculation

160 quate attorneys with this attorneys' fees consistent only awarding 2% him opinion. sought. The district court had he had fees appellant had that reasoned WALKER, Judge, concurring: Circuit of what approximately 2% recovered Dunlap-McCuller was enti- seeking, precedents, most recent agree I that our the court would of what to tled 2% Comptroller ly Kirschner v. Office attorney plaintiff- have awarded York, 88, 973 F.2d 96 City New of (2d claims. on all of his succeeded appellant Cir.1992), render non-reviewable a dis this deter- maintains that grant of a motion for a new trict court’s clear error. We mination constituted upon a verdict the clear trial based agree. Miller, Wright and weight of the evidence. criticizing foreclos the Second Circuit rule plaintiff a successful partially While review, point “[a]p- out that ing appellate “only that amount of awarded should be protects in this context pellate action in relation is reasonable fees by jury, as envisioned the Sev role of the Eckerhart, obtained,” Hensley v. results Amendment_” Wright 11 & A. C. enth 1933, 1943, 76 103 S.Ct. 461 U.S. Miller, Practice & Procedure Federal (1983), this Court has consis- 40 L.Ed.2d 2819, (1973). my colleagues 126 As an notion that award tently rejected the note, other cir this criticism has led most proportional fees reject our rule and review these cuits See, e.g., damages recovered. amount of under an nullifications of verdicts America, Ins. Co. v. Prudential Cowan Majority standard. abuse discretion See (2d Cir.1991)(holding F.2d 936 Indeed, Opinion some of our at 158-59. subject to reduction lodestar was extremely strin apply courts “an sister with proportionality to achieve grants gent” standard of review to of new Morizio, v. award); DiFilippo evidentiary grounds “to trial motions on (same). Cir.1985) “Proportion- (2d 235 right to a trial.” protect party’s policy of contrary to our national ality is City City, v. Redd Phenix every type encouraging the eradication see, (11th Cir.1991); e.g., Digi discrimination; it should not be of racial Corp., 734 F.2d dyne v. Data Gen. Cowan, F.2d at 527-28. tolerated.” Cir.1984)(same); (9th Shows Jami especial- reduction was court’s The district Inc., F.2d Bedding, son case, in the instant be- ly inappropriate Cir.1982) (applying “strict” standard of re except court’s of defen- cause view). trial, appellant for a new motion dant’s complete success as achieved would I am bound Second Circuit Because Furthermore, of the first result majority’s con- precedent, I concur determined, it can coun- be the extent from the plaintiff’s appeal clusion the first trial should preparation for sel’s My fail. differ- grant of a new trial must degree it compensated to contribut- be my colleagues not with the ence with lies representation at sec- appellant’s toed outcome, analysis, unneces- but with ond trial. view, sary would conduct my how we applying if we were an abuse of

a review CONCLUSION discretion standard. grant colleagues “the of a foregoing, My affirm the note that we on the

Based weight new on the evidence grant of a new and we trial district court’s for those occa- grounds be reserved judgment entered should vacate the egre- jury’s remand sions where the verdict the second trial and after Redd, F.2d at gious.” limited also to hold a new trial See instructions with evi- (“ granted on damages. Accordingly, the ‘new trials should not be the issue of unless, minimum, dentiary grounds is fees court’s award of merely the remanded, against great, is on remand verdict vacated also ”) (quot- weight of the evidence’ greater[,] set ade- is instructed to the district court ing Conway (“When v. Chemical Leaman Tank F.2d at 1215 there support is some 360, Lines, Inc., verdict, Cir. it is irrelevant what we 1980)); Clinic, Inc., v. Hitchcock or the district court would have conclud- Coffran 5, (1st Cir.) (new properly trial ed.”); Coffran, 683 F.2d at 7 (reversing granted weight grounds of the evidence nullification of verdict on evidentiary where “the verdict is the clear grounds where case “factually ... evidence, weight upon or is based very difficult”). close and false, evidence which is or in a will result In all respects, other I concur in the miscarriage justice....”) (citation clear majority’s opinion and in the result. omitted), denied, cert. 459 U.S. (1982). They S.Ct. 74 L.Ed.2d 933 also

recognize that where—as here—witness involved,

credibility is “the empow capable evaluating

ered and a witness[ ] rarely

... should evaluation standard, agree

disturbed.” Under this I that, my colleagues

with the basis of “[o]n appeal, the cold record on we would not America, UNITED Appellee, STATES of a new trial....” However, the majority opinion goes on to conclude that the district court did not Yahya AHMED, M. also known as Yaha its discretion granting abuse Riese’s new Ahmaed, M. also known as Ahmed M. trial motion because “almost all of the evi- Yahya, Defendant-Appellant. presented by Dunlap-McCuller dence in the form of testimony his own and this No. Docket 92-1225. testimony preponderate does not in his fa- opinion vor.” The credibility adds that the United States Court Appeals, court, determination rests with the district Second Circuit. it which defers. It seems to me that this Argued Sept. 1992. analysis confuses the respect need to

discretion of the trial court proper with the Decided Nov. legal ruling upon test for a new trial mo- tion.

A circuit court must accord deference to involving

the district court in matters fact

finding. legal ap- standard

plicable to a new trial motion is the same at

the district and circuit court levels. As set above,

forth a court should motion evidentiary grounds a new trial on contrary

where the verdict is to the clear

weight the evidence. The majority as-

serts that we must defer to the district

court and affirm the plain- nullification of a

tiffs verdict where the record reveals that merely

a case respond is close. I that the

district court’s discretion limited governing

Seventh Amendment and the le-

gal standard. Where the equiv- evidence is merely preponderate

ocal or fails to favor,

plaintiffs appellate an court must greater

accord deference to the than See, Redd,

to the district court.

Case Details

Case Name: James Dunlap-Mcculler v. The Riese Organization Mannu Sohi Robert Gladstone Gary Chielmewski

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 25, 1992

Citation: 980 F.2d 153

Docket Number: 3, 16, Dockets 91-7676, 91-9292

Court Abbreviation: 2d Cir.