MEMORANDUM OPINION DENYING PLAINTIFF’S MOTION FOR NEW TRIAL
Presently before the Court is a motion for new trial [279] filed by Plaintiff Power-train, Inc. Defendant Joyce Ma has filed a response, and Plaintiff Powertrain, Inc. has filed a reply. The matter is now ripe for review. Upon due consideration, the Court finds that the motion [279] is not well taken and should be denied.
A. Factual and Procedural Background
On May 3, 2011, Plaintiff Powertrain, Inc. (“Powertrain”) brought this diversity action against Best Machinery & Electrical, Inc. (“Best Machinery”), a dissolved California corporation, and Joyce Ma (“Ma”), a California citizen.
Service of process was perfected on Best Machinery pursuant to applicable law. However, the Clerk of the United States District Court for the Northern District of Mississippi subsequently entered default [108]; Powertrain filed a motion for default judgment [109] against Best Machinery; and the Court granted default judgment against Best Machinery in the amount of $2,600,000.00, together with interest accruing at the then-current federal rate of 0.13% from the date of the Default Judgment until the date it was paid in full. See Ct.’s Default J. [124]; Ct.’s Order [117] & Mem. Op. [118] Re: Serv. of Process on Best Machinery.
The following facts were established by the Pretrial Order:
In 2001, Ma and Oneal Wood, the president of Powertrain, met at a trade show in Las Vegas. Pretrial Order [272] at 3, ¶ (a); 5, ¶ 8(b). Subsequently, Powertrain placed orders for Chinese engines through Best Machinery; Best Machinery then ordered the engines from Chinese manufacturers and had them shipped to the United States. Id. at 3, ¶ 8(a); 5, ¶ 8(b); 7, ¶ 8. After the imported engines arrived in the United States, Powertrain sold or distributed the engines. Id. at 7, ¶ 9. All subject engines were manufactured in China, were imported for resale in the United States
Between sometime in 2002 and early 2003, Best Machinery assisted Powertrain in Powertrain’s purchase of a handful of engines, as well as related equipment, manufactured in China by EVERFINE Corporation (“Everfine”). Id. at 6, ¶ 9(a)(1). As a part of the process of purchasing engines manufactured by Ever-fine, Powertrain applied for and eventually obtained a Class I Certificate of Conformity from the EPA which was issued to Powertrain on June 4, 2002, for a 4 hp/163 ce Everfine engine designated as engine family 2PTIS.1632P1 for model year 2002. Id. at 6, ¶ 9(a)(2). In early 2003, Best Machinery ceased its relationship with Ev-erfine and began to arrange for Power-train to purchase engines and related equipment manufactured by Tong Yong,
Between 2002 and 2006, Powertrain purchased 78,284 small engines and non-road equipment containing such engines from China through Best Machinery for resale in the United States. Id. at 6, ¶ 9(a)(5). Between early 2003 and approximately November of 2006, the engines and related equipment purchased by Powertrain through Best Machinery were manufactured by Tong Yong. Id. at 6, ¶ (9)(a)(4).
On May 28, 2009, the United States Department of Justice, Environmental and Natural Resource Division, filed a complaint against Powertrain and its sister companies, Wood Sales, Inc. (“Wood Sales”) and Tool Mart, Inc. (“Tool Mart”), related to the purchase and importation of the subject engines into the United States. Id. at 7, ¶ 9(a)(10). In May of 2011, the United States and Powertrain, Wood Sales, and Tool Mart entered into a Consent Decree requiring Powertrain, Wood Sales, and Tool Mart to pay civil penalties to the United States in the amount of $2,000,000 plus interest; to implement an emission reduction program; and to destroy or export any remaining subject engines in their inventory. Id. at 7, ¶ 9(a)(11). Powertrain subsequently initiated this suit claiming that Best Machinery and Ma should be held responsible for the damages Powertrain incurred in the suit by the United States against Power-train. Id. at 7, ¶ 9(a)(12).
Alleged Facts
Powertrain alleged that Ma, both individually and as the alter ego of Best Machinery, imported to the United States from China small engines that violated the EPA’s emission and labeling standards and were not covered by certificates of conformity, and that Powertrain purchased 78,284 of the engines (the “subject engines”) from Ma. Powertrain alleged that as a direct and proximate result of Ma’s alleged sale of the subject engines to Pow-ertrain, the United States filed civil actions against Powertrain for injunctive relief and the assessment of civil penalties for these violations, and Powertrain was liable for civil penalties in the amount of $2,000,000
On October 28, 2014, trial commenced. At the close of Powertrain’s case-in-chief, on October 29, 2014, Ma moved for judgment as a matter of law. The Court granted the motion and entered final judgment [277] in favor of Ma against Power-train.
On November 21, 2014, Powertrain filed the present motion for a new trial [279]. Powertrain asserts essentially two grounds for relief: (1) “the trial court erred in refusing to allow Powertrain to read into the record deposition testimony of Best [Machineryj’s owners, Zhao Lei and Zhao Agen”; and (2) “the trial court’s decision [to grant Ma’s motion for judgment as a matter of law at the close of Powertrain’s case-in-chief] is against the great weight of the evidence when viewed in the light most favorable to Powertrain” and was the result of improper weighing of the evidence and credibility determinations. See Pl.’s Mot. New Trial [279] ¶ 9.
The Court has carefully considered the arguments concerning Powertrain’s request for a new trial, as well as attached documentation, the trial transcript, the trial exhibits, and all authorities bearing on the matter. The Court is of the opinion that none of Powertrain’s arguments have merit and that the Court’s judgment should stand, for the reasons stated below.
B. Federal Rule of Civil Procedure 59 Standard
Rule 59 of the Federal Rules of Civil Procedure provides in pertinent part that “[t]he court may, on motion, grant a new trial on all or some of the issues — and to any party — ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court-” Fed.R.Civ.P. 59(a)(1)(A). Such a motion “must be filed no later than 28 days after the entry of judgment.” Fed.R.Civ.P. 59(b). Because the instant motion for a new trial was filed within 28 days of the entry of judgment, it shall be construed as a Rule 59 motion. See, e.g., Komolafe v. Dewease,
“A district court has discretion to grant a new trial under Rule 59(a) of the Federal Rules of Civil Procedure when it is necessary to do so ‘to prevent an injustice.’ ” Jones v. Ruiz,
C. Analysis and Discussion
As stated above, Powertrain makes two arguments in support of its request for a new trial under Rule 59. The Court will analyze each argument in turn.
Prior to the commencement of trial in this cause, Ma moved in limine to exclude the introduction of depositions of Zhao Lei and Zhao Agen which were taken during the earlier Honda case. The Court granted Ma’s motion in limine and excluded the deposition testimony, finding that the depositions did not involve the same subject matter between the same parties as required by Rule 32(a)(8) of the Federal Rules of Civil Procedure. However, the Court did not foreclose the possibility that Powertrain might use the deposition testimony for impeachment purposes. Trial Tr. vol. 1, at 2, Oct. 28, 2014. Powertrain argues in its post-trial motion that the Court improperly excluded the deposition testimony, and in so doing, “prevented] Powertrain from presenting crucial testimony related to its ‘piercing the corporate veil’ theory.” Pl.’s Mem. Br. Supp. Mot. New Trial [280] at 1. Powertrain further argues that the testimony should have been admitted because it was taken “in [prior] litigation ... involving the same issues herein (engines sold to Power-train)”; because the deponents were unavailable to testify at the trial; because the deponents were owners of Best Machinery and their depositions could have been used for any purpose under Rule 32; and because the deposition transcripts were provided to Ma on December 6, 2013, allowing Ma “every opportunity to depose Zhao Lei and Zhao Agen on matters not covered in the depositions which have been identified and submitted by Plaintiff.” Id. at 1-11.
The Court notes that the Federal Rules of Evidence generally exclude testimony from a prior proceeding as hearsay. See Fed.R.Evid. 802. In addition, under Rule 611 of the Federal Rules of Evidence the Court has discretion to control the “manner in which deposition testimony is presented.” Oostendorp v. Khanna,
Rule 32 provides in pertinent part:
At a ... trial, all or part of a deposition may be used against a party on these conditions:
(A) the party was present or represented at the taking of the deposition or had reasonable notice of it;
(B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and
(C) the use is allowed by Rule 32(a)(2) through (8).
Fed.R.Civ.P. 32(a)(1). Powertrain argues the deposition testimony of Zhao Lei and Zhao Agen was admissible pursuant to Rule 32(a)(8), (3), and (4).
a. Federal Rule of Civil Procedure 32(a)(8)
Rule 32(a)(8) allows the use of deposition testimony “lawfully taken ... in any federal-or state-court action” to “be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action” and “as allowed by the Federal Rules of Evidence.” Fed.R.Civ.P. 32(a)(8). Ma contended in her motion in limine that the deposition testimony should be excluded because “the deposition[s] w[ere] taken for another case, ... defended by attorneys with different objectives,” and “would deprive Ma’s right to cross-examine said witnesses.” See Def.’s Mem. Br. Supp. Mot. Limine [242] at 1. Ma maintained that both depositions were taken by John R. Chiles, an attorney who represented American Honda Motor Co., and were defended by the late attorney Richard F. Cauley. Ma further 'maintained that “[t]he Honda case was a trademark suit,” while “[t]he instant case is about sales contracts and the do-no-harm contracts.” Id. at 2. Ma contended that “[i]f Powertrain wishe[d] to have [Zhao Lei and Zhao Agen] testify by deposition, it could have conducted a deposition for this case, when Ma would be allowed to cross-examine the witnesses.” Id. at 3.
In response, Powertrain maintained that Powertrain, Ma, and Best Machinery were defendants in the Honda case and that the depositions taken in that case of Zhao Lei and Zhao Agen “[were] material and relevant in this cause to establish [Ma]’s conduct and activity with [Best Machinery] and her relationship with Zhao Lei and Zhao Agen.” Pl.’s Mem. Br. Supp. Resp. Opp’n to Def.’s Mot. Limine [249] at 1. Powertrain further maintained that “[t]he exhibits to the deposition of Zhao Lei reflect the disregard of corporate formalities and the transfer of [Best Machinery] funds to Zhao Lei’s new corporation, Champion Power Equipment, Inc.” Id. at 1-2. Pow-ertrain asserted that “[i]n the case at bar, Ma had every opportunity to depose Zhao Lei and Zhao Agen on matters not covered in the depositions which have been identified and submitted by Plaintiffs.” Id. at 2.
In the opinion of the Court, the depositions of Zhao Lei and Zhao Agen were not admissible under Rule 32(a)(8), because the depositions involved neither the “same parties” nor the “same issues” for purposes of the Rule.
First, the Honda case did not involve the “same parties” as the case sub judice for the purposes of Rule 32(a)(8). Power-train filed that suit in anticipation of a future lawsuit by American Honda Motor Co. (“Honda”) against Powertrain for allegedly infringing on Honda’s trademark. Honda filed a countersuit against Best Machinery, Ma, and others, alleging that those persons had infringed upon its trademark. Thus, Ma was sued by Honda — not Powertrain — in the Honda case. Ma and Best Machinery subsequently filed a counterclaim against Honda alleging, inter alia, that “counterdefendant Honda has engaged in a systematic campaign of threatening distributors and customers of Pow-ertrain” by “falsely and misleadingly, in print and through sales representatives, claiming] and continufing] to claim Power-train’s black and yellow small engines sold
Second, the Honda case did not “involve the same subject matter” for the purposes of Rule 32(a)(8). The Honda case presented trademark infringement issues.
These considerations aside, the Court also had other concerns about the admissibility of the deposition testimony under Rule 32(a)(8). Of ultimate importance to a district court faced with such an admissibility question is whether the other party will have a fair opportunity to address or challenge the deposition testimony at the trial. In the case sub judice, particularly disturbing to this Court was the fact that Powertrain and Ma were aligned with the same interests in the Honda case wherein the subject depositions were taken. That alone highlights the conflicting issues present in the Honda case and this case. It cannot be said that Ma’s involvement in the depositions in the Honda case “was calculated to induce as thorough a cross-examination as the interest of [Ma]” as the instant case would require, given that the instant ease involves claims to hold Ma individually liable based on her involvement with Best Machinery. See Rule v. Int’l Ass’n of Bridge, et al., Workers,
b. Federal Rule of Civil Procedure 32(a)(3)-(4)
Powertrain never raised an argument that the deposition testimony should have been allowed in pursuant to Rule 32(a)(3) or Rule 32(a)(4) until it filed the present post-trial motion. Accordingly, any such arguments are waived. See Henry’s Marine Serv., Inc. v. Fireman’s Fund Ins. Co.,
Rule 32(a)(3) permits a deposition to be used “for any purpose” if the Court finds the deponent “was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).” Fed.R.Civ.P. 32(a)(3). Best Machinery was dismissed on default judgment earlier in this proceeding and thus was not a party to this action at the time of trial. Further, neither Zhao Lei nor Zhao Agen has been designated under Rule 30(b)(6) to testify on behalf of Best Machinery in this case. Accordingly, Powertrain failed to demonstrate the deposition testimony was admissible under Rule 32(a)(3).
Rule 32(a)(4) permits a deposition to be used “for any purpose” if the Court finds the witness is “unavailable” to attend or testify at trial. Fed.R.Civ.P. 32(a)(4).
c. Other Considerations
Even assuming arguendo that the deposition testimony of Zhao Lei and Zhao Agen could have been properly admitted into evidence at trial, the testimony would not have affected the Court’s decision.
Powertrain contends that “[t]he depositions of Zhao Lei and Zhao Agen are material and relevant in this cause to establish Ma’s conduct and activity with Best [Machinery] and her relationship with Zhao Lei and Zhao Agen” and further states that “[without question this information is necessary given that this Honorable Court ruled Zhao Lei and Zhao Agen were the owners of Best [Machinery].” Pl.’s Mem. Br. Supp. Mot. New Trial [280] at 9. Powertrain maintains that the excluded testimony would have shown, inter alia, that “Zhao Lei lives with Ma and has been commonly referred to as Ma’s husband” and that “Best [Machinery] disregarded corporate formalities and ... was underca-pitalized — Zhao Lei tunneled over $1 million dollars out of Best [Machinery] to Zhao Lei’s new corporation, Champion Power Equipment, Inc.” Id. Powertrain further maintains that Zhao Agen testified in his deposition that he gave full authority to Ma, that testimony from both demonstrated that there were no directors of Best Machinery, that no records were kept at Best Machinery’s alleged corporate office, that there were no corporate meetings, no meetings of shareholders, and that Zhao Agen had no idea who was the president of Best Machinery.
However, Powertrain also states that Ma’s testimony on the witness stand showed that “she lived with Zhao Lei and he was the father of her daughter”; that although “she did not initially remember when Best [Machinery] went out of business, ... Zhao Lei sold Best [Machinery] to his father, Zhao Agen, for $2,000.00 in 2002”; that “although Zhao Lei sold Best [Machinery] to Zhao Agen, he was responsible for transferring $1.2 million dollars to Champion [Power Equipment, Inc. (“Champion Power Equipment”) ] — a new company owned by Zhao Lei”; and that Ma had no interest in Champion Power Equipment, yet signed a guaranty for Champion Power Equipment for $1,000,000.00. Id. at 3-4.
Next, Powertrain argues that a new trial is proper because the Court erred in granting Ma’s motion for judgment as a matter of law at the close of Powertrain’s ease-in-chief. Powertrain maintains that the Court failed to review the evidence in the light most favorable to Powertrain in ruling that Powertrain failed to carry its burden to pierce the corporate veil. Pow-ertrain further maintains that the Court improperly weighed evidence and made credibility determinations in Ma’s favor.
The United States Supreme Court has stated:
[Rule] 50 sets forth the procedural requirements for challenging the sufficiency of the evidence in a civil jury trial and establishes two stages for such challenges — prior to submission of the ease to the jury, and after the verdict and entry of judgment. Rule 50(a) allows a party to challenge the sufficiency of the evidence prior to submission of the case to the jury, and authorizes the district court to grant such motions at the court’s discretion^]
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
Fed.R.Civ.P. 50(a).
On a Rule 50(a) motion, “[t]he court may render judgment where a party has been heard and there is no legally sufficient evidentiary basis for a reasonable factfinder to find for the party on that issue.” Bass v. City of Jackson, Miss.,
“Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what is called a scintilla oí evidence in support of a case the judge was bound to leave it to the jury, but recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literallyno evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.”
Id. at 251,
“[D]irected verdict motions are ... decided on the evidence that has been admitted.” Id., 106 S.Ct.'2505 (internal quotation marks and citation omitted). “Inadmissible evidence contributes nothing to alegally sufficient evidentiary basis.” Weisgram v. Marley Co.,
“[T]he determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.” Id. at 255,
In the case sub judice, the Court held that Powertrain failed to offer proof sufficient to create a jury issue on its pierce-the-corporate-veil theory, and in so doing, failed to lay a necessary foundation for its •other claims: negligence, breach of contract, and breach of warranty. In the Court’s opinion, the ruling that Plaintiff failed to present proof on its prima facie case necessarily preceded the credibility-assessment stage of the trial, as it was a determination based on the law itself. Because a reasonable jury would not have had a legally sufficient evidentiary basis to find for Powertrain under Mississippi law, judgment as a matter of law was proper. If the case had been given to the jury, only one verdict would have been possible, given the deficiency of Powertrain’s pierce-the-veil theory.
The Necessary Foundation: Power-train’s Pierce-the-Corporate-Veil Theory
“Corporate veil claims are analyzed under, state law,” in this case, Mississippi law. See Penn Nat’l Gaming v. Ratliff,
“The cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of
In this case, Powertrain alleged that Ma should be held liable as an alter ego of Best Machinery. See Pl.’s Mem. Br. Supp. Mot. New Trial [280] at 13. “Alter ego is defined as: ‘A corporation used by an individual in conducting personal business, the result being that a court may impose liability on the individual by piercing the corporate veil when fraud has been perpetrated on someone dealing with the corporation.’ ” Tanfield Eng’g Sys., Inc.,
Powertrain introduced evidence that Ma referred to Best Machinery as “my new office and company,” see, e.g., 3/19/2002 Email from Ma to Jeffery Wood, Pl.’s Trial Ex. 10, at 1 (Bates # 00008575); and that Ma was a personal guarantor for Champi
However, Jeffery Wood, vice president of Powertrain, testified that “[Power-train’s] understanding from [Ma] was that she was an employee of Best Machinery.” Jeffery Wood Test., Trial Tr. vol. 1, at 116, Oct. 28, 2014; see Joyce Ma Test., Trial Tr. vol. 2, at 8, Oct. 29, 2014 (“I would be the employee always of [Best Machinery].”). See also Pl.’s Mem. Br. Supp. Mot. New Trial [280] at 9-10 (“Best [Machinery], Champion [Power Equipment], and JL Industrial shared employees, primarily Ma, who worked for all three[.]”). Additionally, Ma’s W-2 statements, which were admitted as a trial exhibit, show the withholding of Social Security and other requirements of a regular employee. See Ma’s W-2 Statements, Def.’s Trial Ex. 5. Jeffery Wood further testified that he was “[n]ot ... aware of any documentation wherein Ma signed as president, owner, or otherwise of Best Machinery,” and that he was “[n]ot ... aware of any corporate records that listed Ma as a shareholder, director, or owner of Best Machinery.” Jeffery Wood Test., Trial Tr. vol. 1, at 119, 133-35, Oct. 28, 2014. Although Power-train introduced evidence at trial that Ma was the sole employee of Best Machinery and was heavily involved in its day-to-day operations, “general assumption of sales duties and business operation duties for the corporation cannot be held a basis of liability for one agent or shareholder.” See Hardy v. Brock,
However, even assuming arguendo that Powertrain had produced evidence that Ma was a principal shareholder, director, or owner of Best Machinery, that alone would not have supported piercing the corporate veil; nor would evidence that a sole owner used and controlled a corporation to promote his or her ends; nor would evidence that a principal shareholder oversaw the day-to-day operation of the corporation.
Under Mississippi law, the Court will not disregard the corporate entity unless the plaintiff presents proof on three elements, as laid out in Gray v. Edgewater Landing, Inc.: “ ‘(a) some frustration of contractual expectations regarding the party to whom he looked for performance; (b) the flagrant disregard of corporate formalities by the defendant corporation and its principals; and (c) a demonstration of fraud or other equivalent misfeasance on the part of the corporate shareholder.’ ” See GM Acceptance Corp.,
(a) Some Frustration of Contractual Expectations Regarding the Party to Whom Powertrain Looked for Performance
The Mississippi Supreme Court has explained that the first Gray factor, “some frustration of contractual expectations regarding the party to whom he looked for performance,” requires a showing that the plaintiff had a reasonable expectation of contractual performance from the party behind the veil (allegedly, Ma). See Rosson,
The uncontroverted evidence on this prong was as follows. Powertrain “work[ed] with [Ma] on how many engines would fit in the shipment.” Jeffery Wood Test., Trial Tr. vol. 1, at 79, Oct. 28, 2014. Ma prepared purchase orders, packing list, and invoices for the engines from Best Machinery to Powertrain. Id. at 83, 93, 99-100. Powertrain owner Oneal Wood signed off on all purchase orders. Id. at 134-35. Powertrain paid Best Machinery for the subject engines, as well as shipping and customs fees. Id. at 85, 101, 115, 119, 135; Purchase Orders, Pl.’s Trial Ex. 9; Emails from Ma to Powertrain, Pl.’s Trial Ex. 10; Various Emails, Pl.’s Trial Ex. 13. See also Purchase Orders [280-33] at 1-7. The Chinese factories shipped the engines by rail to Memphis. Jeffery Wood Test., Trial Tr. vol. 1, at 79, Oct. 28, 2014. Pow-ertrain took possession of the engines. Id.
Under Mississippi law, “where parties to a transaction finally reduce its terms to an executed writing, all negotiations and previous understandings are merged into the writings[,] and the terms of the writing will control.” Rosson,
Failure to establish the foundation of the alter-ego theory and the first Gray prong provided sufficient justification for judgment as a matter of law. Nonetheless, in the interest of thoroughness, the Court addresses the proof on the other two Gray prongs.
(b) The Flagrant Disregard of Corporate Formalities
The second Gray prong, “the flagrant disregard of corporate formalities by the corporation and its principals,” refers to the lack of corporate separateness, for example, the failure to hold regular board meetings and maintain minutes that memorialize corporate decisions. See GM Acceptance Corp.,
(c) A Demonstration of Fraud or Other Equivalent Misfeasance on the Part of the Corporate Shareholder
The third Gray prong, “a demonstration of fraud or other equivalent misfeasance on the part of the corporate shareholder,” is the most difficult to prove, and without it, a plaintiff cannot make its case on piercing the corporate veil. See Whitaker v. Limeco Corp.,
The evidence introduced at trial was insufficient to meet Powertrain’s burden on the third Gray prong. There was no evidence that Powertrain contracted with Ma, but there was also no evidence that Ma committed fraud by trying to use Best Machinery to shield herself from personal liability. Although the alleged subject engines Ma assisted in ordering on behalf of Best Machinery for Powertrain did not comport with EPA specifications, that fact alone does, not support that Ma committed a fraudulent act or misfeasance. While there is no doubt that Powertrain incurred civil penalties and other damages as a result of trying to introduce into commerce noncompliant engines, these problems were not answerable by Ma individually because Powertrain offered no proof that Ma abused the corporate form in committing any alleged fraud or misfeasance.
At one point in the trial, Jeffery Wood was asked: “You’re not aware of any fraud that [Ma] committed while she was working on Powertrain’s behalf and finding engines to buy, right?” Jeffery Wood Test., Trial Tr. vol. 1, at 121, Oct. 28, 2014. As stated above, Jeffery Wood testified: “I’ve seen where she wrote checks ... from Best [Machinery] to Champion [Power Equipment] ... as [Best Machinery] closed,” but then admitted that all the checks were signed by Lei Zhao. Id. at 133-34. Also, as stated above, testimony that Ma was involved in the writing of checks from Best Machinery to Champion Power Equipment as Best Machinery closed — but did not actually sign the checks — was an insufficient basis for disregarding the corporate entity under Mississippi law.
When asked if Ma committed any specific acts of fraud in the process of ordering, shipping, and payment for the importation of engines, Jeffery Wood testified, “Not to my knowledge.” Id. at 121. Jeffery Wood then testified: “I believe if you look at all
The record is bereft of evidence that Ma represented that she would obtain a certificate of conformity for the engines purchased by Powertrain, and instead, supported that Powertrain had the responsibility for obtaining the certificates of conformity for its engines before introducing them into commerce. As background, the Court notes that under federal law new nonroad engines cannot be sold or imported unless covered by a certificate of conformity issued by EPA verifying that the engine satisfies the appropriate emissions standard. See 42 U.S.C. § 7522(a)(1); 40 C.F.R. § 89.1003(a)(l)(i)(ii). For each model year, a certificate covering the “engine family” must be obtained prior to sale or importation. 40 C.F.R. § 89.105. Manufacturers are prohibited from selling any covered engine that does not bear a permanent emission control information label verifying that the engine conforms to these requirements. 42 U.S.C. §§ 7541(c)(3)(C) & 7522(a)(4)(A); 40 C.F.R. §§ 89.110 & 89.1003(a)(4)(h).
At trial, Powertrain’s expert witness, Christopher Weaver, a mechanical engineer specializing in emissions, testified that “[i]t is normally the responsibility of the manufacturer or the importer to place th[e] EPA-certified sticker on the engine” and that when an engine is for sale in the United States but is imported into this country it must have the EPA-certified sticker on it before it comes into the country. Christopher Weaver Test., Trial Tr. vol. 2, at 75-76, Oct. 29, 2014. Christopher Weaver further testified that the person who obtains the certificate of conformity is considered the manufacturer for EPA’s purposes, whether that person actually built the engine or not, id at 85; and that physical shipment of the engine to a location in the United States, as well as arranging all of the import documentation, including the customs declarations, is part of the process of importing an engine, id at 88.
Taking this testimony as true, no evidence supported that Ma was the manufacturer or importer of the subject engines or that she otherwise had a duty to obtain the certificates of conformity for the subject engines and that her alleged failure to do so constituted fraud or misfeasance. Jeffery Wood testified that Powertrain was aware that to import engines from overseas and sell them in the United States the engines had to have a certificate of conformity. .When asked about Ma’s alleged responsibility to obtain the certificates of conformity with respect to the Tong Yong engines, Jeffery Wood testified that he was not aware of any contract Ma signed indicating that she agreed to provide the certificates of conformity for the engines— or any other contract with Powertrain; that he did not “particularly remember” whether Powertrain and Ma discussed the EPA certificates with respect to Tong Yong; that “[Ma] told [Powertrain] she would take care of everything with the new company, that we wouldn’t have to do anything,” but that Ma did not specifically indicate that involved getting certificates of conformity for the engines from Tong Yong; and that he did not investigate whether Ma would obtain the appropriate certificates of conformity for the subject engines beyond just assuming that Ma would be getting those certificates of conformity. Jeffery Wood Test., Trial Tr. vol. 1, at 121-24, 129, Oct. 28, 2014. Although Powertrain argues in its motion for new trial that Ma “ensured certificates were affixed to each engine imported,” see Pl.’s Mem. Br. Supp. Mot. New Trial [280] at 4,
Powertrain produced evidence that Ma requested information from V. Alexander & Co., Inc., Import Traffic Specialist, about “documents needed for importing.” See Ma Email to Chris Varias, Pl.’s Trial Ex. 12, at 8 (Bates # 00008798). However, aside from establishing Ma’s involvement in the process of obtaining the subject engines, the trial evidence supported that Powertrain and/or the Chinese factories were the manufacturers of the engines purchased by Powertrain from Best Machinery and that Powertrain was the importer. On every EPA form introduced into evidence at trial, the importer of the subject engines was listed as either Wood Sales Co. Inc. or Powertrain, Inc. and the manufacturer of the subject engines was listed as Powertrain, Inc. See EPA Decl. Forms, Def.’s Trial Ex. 6, at 1-20 (Bates # 00008078-# 00008197) (listing name of relevant party as “Oneal Wood,” the engine importer as “Wood Sales Co. Inc.,” the broker as “V. Alexander,” and the owner as “Wood Sales Co. Inc.”); EPA Engine Decl. Forms, Pl.’s Trial Ex. 3, at 35-36 (Bates # 00001010-# 00001011) (listing name of relevant party as “Oneal Wood,” the engine importer as “Power-train, Inc.,” the broker as “V. Alexander,” and the owner as “Powertrain, Inc.”). See also Bionetics Letter & Nonroad Inspection Report, Powertrain to EPA, Pl.’s Trial Ex. 3, at 7, 8 (Bates # 0000982, # 0000983) (listing engine manufacturer as “PowerTrain, Inc.” and the engine importer/dealer as “PowerTrain, Inc” [sic]); EPA Nonroad Field Inspection of Engines, PL’s Trial Ex. 3, at 33 (Bates # 00001008) (listing facility as “Power Train Inc.” and facility type as “importer”); EPA 2003 Certifícate of Conformity, PL’s Trial Ex. 4, at 6-7 (Bates # 0000651- # 0000652) (listing manufacturer of particular nonroad engine family “3PTIS.1632P1” as “Powertrain, Inc.,” contact person as “Mr. Oneal Wood,” and production plant as “Powertrain, Inc.”); EPA 2004 Certificate of Conformity, PL’s Trial Ex. 4, at 22-23 (Bates # 0000666- # 0000667) (listing manufacturer of particular nonroad engine family “4PTIS.1632P1” as “Powertrain, Inc.,” contact person as “Mr. Oneal Wgood” [sic], and production plant as “Powertrain, Inc.”); EPA 2005 Certificate of Conformity, PL’s Trial Ex. 4, at 37-38, (Bates # 0000681-# 0000682) (listing manufacturer of particular nonroad engine family “5PTIS.1632P1” as “Powertrain, Inc.,” contact person as “Mr. Oneal Wood,” and production plant as “Powertrain, Inc.”); EPA 2006 Certificate of Conformity, PL’s Trial Ex. 8, at 2, 12 (Bates # 0000249, # 0000259) (listing manufacturer of particular off-road engine family “6PTIS.1632P1” as “Powertrain, Inc.,” contact person as “Mr. Oneal Wood,” and production plant as “Powertrain, Inc.”). See also EPA Engine Decl. Forms [280— 28] at 1-8.
Jeffery Wood testified that Powertrain was listed as an importer of the subject questions on importation documents because that is what Ma advised, and that Ma filled out the documents and sent them to Oneal Wood to be signed. Jeffery Wood Test., Trial Tr. vol. 1, at 101, Oct. 28, 2014. However, as Jeffery Wood testified, it is undisputed that Oneal Wood signed off on every one of the importation documents. See id. at 134-35. No evidence supported that Ma was ever listed as importer of the engines or that she ever signed a form listing herself as an importer of the subject engines. Id. at 132. Furthermore, no evidence supported that Ma ever referred to herself as the importer or manufacturer of the subject engines.
Trial evidence further supported that Powertrain had the ultimate responsibility for obtaining certificates of compliance for
In addition, uncontroverted evidence introduced at trial showed that Powertrain owner Oneal Wood was involved in obtaining the certificates of conformity for the time period at issue in this case: 2002-2006. Ed Langford, an employee of Environmental Solutions Worldwide, Inc. (“ESW”), stated in his affidavit:
[O]ne of my customers was Power Train., Inc.... I dealt with Oneal Wood and Jeffery Wood with regard to Power-Train engines.... I am generally aware that a certificate of conformity for the PT550 engine was issued in 2002.... I first became involved with PowerTrain in 2005 as they were filing for a renewal of their existing certificate of conformity, on a “rollover” basis — that is, recertifying the PT550 engine based on the 2002 data. On this project, I worked with a Mr. Tutor, who I understand is an attorney who represents Power-Train.... Sometime in early 2006,1 was contacted by Oneal Wood about obtaining certificates of conformity for other PowerTrain engines besides the PT550 which was the subject of the 2002 testing. ... [T]here was some discussion with Oneal Wood about the possibility of using the
[Tong Yong] EPA certifications for the PowerTrain engines.... I advised [Oneal Wood] that the [Tong Yong] certificates could not be used.... Having determined that the [Tong Yong] certificates could not be relied upon by Power-Train, Oneal Wood authorized us to move forward with emissions testing on the PowerTrain engines.
Langford Aff., Pl.’s Trial Ex. 4, at 1, 2 (Bates # 0000646, # 0000647). See also Bontekoe Report Addendum, Pl.’s Trial Ex. 5, at 3-4 (Bates # 0000592-# 0000593) (“PowerTrain changed the manufacturer of the PT550 engine from Everfine to ... [Tong Yong] ... prior to the submission of the cárryover requests to certify the PT550 engine for the 2003, 2004, 2005 model years. The carryover certificates were issued by EPA based on this incorrect information.... Consequently, it was not legal for PowerTrain to import, market, or sell the PT550 engines under the Certificates for 2002, 2003, 2004[,] and 2005.”) Letter from Katherine T. Gates, an attorney for Powertrain, to IDS Labs, Pl.’s Trial Ex. 7, at 64 (Bates # at 000077) (“Power[t]rain retained IDS Labs ... to perform emissions testing and assist in preparing applications for certificates of conformity for PowerTrain engines,” apparently in 2002 and 2003).
Although the certificates of conformity for the subject engines did not comply with EPA standards and Ma on behalf of Best Machinery was at least partly in-, volved in the process of obtaining the en
According to Jeffery Wood’s testimony, Ma recommended Chinese factory Tong Yong to Powertrain, and Ma represented to Powertrain that she worked for and with Tong Yong, that Tong Yong made engines, and that her family had some interest in the factory. Jeffery Wood Test, Trial Tr. vol. 1, at 83, 86, 88, 114, Oct. 28, 2014. Powertrain’s evidence further shows that Powertrain ceased its relationship with Everfine and began to do business with Tong Yong, based on Ma’s recommendation — though Powertrain’s decision to do so was voluntary. Id. at 86, 92; see id. at 114 (“We could have determined we didn’t want to follow [Ma]’s advice, but based on [Ma]’s advice and her working with the factories, we decided to follow what she suggested.”). Perhaps Powertrain followed this advice to its detriment. However, “[i]t was within [Power-train]’s power to investigate the financial strength and prior business dealings of [Best Machinery] and take appropriate means to safeguard against the ever-present possibility of non-performance by that corporation. That [Powertrain] did not is no reason to extend [Best Machinery]’s liability to [Ma] acting on behalf of [Best Machinery].” See Richardson,
The Court reiterates that Champion Power Equipment and Tong Yong, Ma’s family’s factory in China, are not parties to this case. Because neither Champion Power Equipment nor Tong Yong were served with process or named in this suit, neither Champion Power Equipment nor Tong Yong can be held liable. See Nash Plumbing, Inc. v. Shasco Wholesale Supply, Inc.,
Finally, the Court briefly addresses Powertrain’s argument that its claims for negligence, breach of warranty, and breach of contract against Ma individually existed separately from its pierce-the-corporate-veil theory. Based on all of the foregoing, that argument has no merit. Powertrain failed to lay the necessary pierce-the-corporate-veil foundation on its claims against Ma. If this Court had nonetheless allowed those claims to go to the jury without piercing the corporate veil of Best Machinery, this Court would have done so in error.
With respect to Powertrain’s breach-of-contract claim against Ma, the Mississippi Supreme Court’s words from the seminal Gray case are particularly poignant:
Where, in the context of an action for breach of a lease or other consensual undertaking, a party seeks to pierce the veil of the corporation with whom hehas contracted and to hold the shareholders personally liable, our focus is fixed upon the expectations of the parties in concluding the bargain. Since contract liability arises from an essentially consensual relationship, courts generally decline to disregard the corporate entity, choosing instead to enforce the contract as written.
The attempt to hold another party liable where the claim asserted is of contractual origins presents difficulties. The question which must be met and answered is why one who contracted with a selected party and received the promise he bargained for should be allowed to look to another merely because he is disappointed in the selected party’s performance. The answer under contract law is that he may not hold the other liable without additional compelling facts.
It is rare indeed for this Court to grant a Rule 50(a) motion for judgment as a matter of law at the close of a plaintiffs proof. However, this Court is of the opinion that such a ruling was warranted in this case, particularly given the strictures of Mississippi law on the claims presented in this diversity suit. The Court further finds that Powertrain has failed to show that a new trial should be granted pursuant to Rule 59.
D. Conclusion
For all of the foregoing reasons, the Court finds that its judgment in favor of Defendant Joyce Ma against Plaintiff Pow-ertrain, Inc. is fully sustainable and that Plaintiff Powertrain, Inc. has failed to persuade this Court that a new trial is warranted. Accordingly, Plaintiff Powertrain, Inc.’s motion for new trial [279] is DENIED.
An order in accordance with this opinion shall issue this day.
Notes
. Diversity jurisdiction was established in this action, as complete diversity of citizenship existed between the Plaintiff Powertrain, a Mississippi resident, and the Defendants Best Machinery, a California corporation with its principal place of business in California, and Ma, a California resident, and the jurisdictional amount in controversy was satisfied by Powertrain’s prayer for damages exceeding $2,000,000. The parties agreed that Mississippi law governed the action.
. Apparently, there have been no payments or collections relative to the judgment.
. In the midst of the proceedings in the instant case, Ma filed counterclaims against Powertrain and third-party claims against William H. Shawn and ShawnCoulson, LLP, lawyers she claimed had represented her in an earlier case. The Court dismissed the counterclaims and third-party claims prior to trial, as detailed below.
In Ma's third-party claims against William H. Shawn and ShawnCoulson, LLP (the "Third-Party Defendants”), Ma asserted that the instant case was "spawned from” a previous case styled Powertrain, Inc., et al. v. American Honda Motor Co., et al., No. 1:03-cv-668,
Ma’s counterclaims against Powertrain were based on the same set of facts as her third-party claims and included nearly identical claims for breach of contract, breach of fiduciary duty, fraud, negligent misrepresentation, and constructive fraud. The backbone of her counterclaims was that Powertrain had offered to represent her and “do no harm to her” in the Honda case and that Powertrain had violated this "do-no-harm agreement” by filing the instant case against Ma. Powertrain filed a motion for summary judgment, arguing that Ma's counterclaims were barred by both the statute of limitations and the statute of frauds. The Court granted Powertrain’s motion for summary judgment, finding that no genuine dispute of fact existed concerning the timeliness of Ma’s counterclaims and that the counterclaims were barred by the statute of frauds — in part because the alleged agreement could not have been performed within the space of fifteen months as required by the statute.
. Tong Yong is variously referred to throughout the Pretrial Order [272] and trial exhibits as "Tong Yong” or "Tongyong.” Throughout this opinion, the Court will refer to the company as “Tong Yong.”
.' The Court notes that Rule 32(a)(2) allows the use of deposition testimony “to contradict
. Defendant’s Trial Exhibit 2 has no corresponding Bates labels.
. United States District Court Judge Michael P. Mills subsequently entered an Order granting Ma's and Best Machinery's motion to voluntarily dismiss all counterclaims filed against Honda. See Order, Honda case, Def.’s Trial Ex. 1, at 1-6. (Defendant’s Trial Exhibit 1 has no corresponding Bates labels.)
. The Honda case was set for trial in two phases: the first phase to determine whether Honda had a protectable trade dress interest with respect to its GX series engines and, if so, whether such trade dress interest had been infringed; in the event that infringement was found, the second phase to determine appropriate recovery against the infringing parties. The jury verdict in the first phase of the trial was that Honda had a protectable trade dress interest with respect to its GX series engines, that Best Machinery had infringed on Honda’s trade dress interests, and that Ma had contributorily infringed upon Honda’s trade dress interests. Judge Mills entered a permanent injunction and amended permanent injunction, allowing Powertrain to present an engine design for the Court to determine whether the proposed engine design violated the terms of the injunction. Powertrain presented the proposed engine design to the Court, and Judge Mills ruled that the engine design did not violate the terms of the injunction. Judge Mills also entered a $13 million judgment against Best Machinery. See generally Powertrain, Inc. v. Am. Honda Motor Co., No. 1:03-cv-668.
. An "unavailable witness” as defined by the Rule is predicated upon a finding by the Court:
(A) that the witness is dead;
(B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition;
(C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment;
(D) that the party offering the deposition could not procure the witness’s attendance by subpoena; or
(E) on motion and notice, that exceptional circumstances make it desirable-in the interest of justice and with due regard to the importance of live testimony in open court-to permit the deposition to be used.
See Fed.R.Civ.P. 32(a)(4).
. Powertrain further states that Ma’s personal banking records from 2005 show that Ma was married and infers that this means she was married to Lei Zhao. However, these records were not admitted into evidence at trial and thus cannot be considered.
. See Penn Nat’l Gaming, Inc. v. Ratliff,
. As stated above, Powertrain argues that the excluded deposition testimony of Zhao Lei and Zhao Agen would have substantiated its pierce-the-corporate-veil case. However, that testimony does not support that Ma was a shareholder or owner of Best Machinery.
. Furthermore, the Mississippi Supreme Court has stated: ''[I]n accordance with the corporate shield and alter[-]ego liability, in order for there to be alter[-] ego liability placed on one shareholder of a corporation, there must be a claim in existence against the corporation. A claim against the corporation is a prerequisite for alter[-]ego liability being placed on one shareholder.” See Hardy v. Brock,
. Mississippi federal district courts have often utilized a ten-factor test when applying Mississippi law for alter-ego theories concerning a parent corporation and its subsidiary. See, e.g., Gammill v. Lincoln Life & Annuity Distribs., Inc.,
. This, of course, does not include other entities which may have frustrated contractual expectations (such as Champion Power Equipment and/or Tong Yong, which Power-train could have added as defendants, but did not).
. The Court notes that Powertrain could not have prevailed on the theory that Ma was personally liable as the agent of an undisclosed principal. See Thames & Co. v. Eicher,
. Plaintiff's Trial Exhibit 1 has no corresponding Bates labels.