Minsor Systems and Minsor Powertrain Systems (“Minsor”) entered into a contract with Production Specialties Group (“PSG”) in which PSG agreed to make Minsor a machine needed for manufacturing an automotive part. Minsor cancelled the contract after PSG was unable to deliver an acceptable machine, and PSG brought this diversity action for breach of contract and fraud in the inducement. A jury found for PSG on both claims and awarded punitive damages on the fraud claim. Minsor moved for judgment notwithstanding the verdict and for a new trial on the fraud claim, arguing that PSG’s claims were barred by the economic loss doctrine; that the court issued erroneous jury instructions; аnd that the evidence was insufficient to support either a verdict for the plaintiff on the fraud claim or punitive damages. The district court denied both motions, and Minsor appeals from that ruling. We find that Minsor failed to preserve its economic loss argument and that an erroneous burden of proof instruction did not constitute plain error. In addition, we conclude that the district court did not err in giving a punitive damages instruction because there was sufficient evidence to show that Minsor intentionally disregarded PSG’s rights. For these reasons, we affirm.
I. BACKGROUND
Minsor supplies automotive parts. In March 2004, Minsor solicited bids on a contract to manufacture a maсhine that could turn a steel forging into a “TB knuckle,” an automotive part that is attached to a truck axle. Minsor needed to submit 1 a prototype of the TB knuckle to its customer by April 15, 2004. Minsor selected PSG to produce the machine as it was the only company that could commit to delivering the prototype TB knucklеs on time. In early April, PSG received steel *698 forgings so it could begin making the prototypes. At this point, PSG began having problems. Before it submitted its bid, Minsor’s vice-president of engineering, Brett Stevenson, told PSG that it would need to make a machine that could remove 2.0 millimeters to 2.5 millimeters of excess material per side from the steel fоrging. But when PSG received the steel forgings to make the prototype, it discovered that they actually contained significantly more than 2.5 millimeters of excess material. This meant that the machine PSG was making could not transform the forgings into TB knuckles as quickly as its original bid had promised. PSG informed Stevenson of this problem, and accоrding to PSG’s vice-president of sales and engineering, Rick Glowacki, Stevenson assured PSG that the steel forgings it had received were just preliminary prototypes and PSG would be able to make changes to the forgings that would be used during the actual production process. After receiving this assurance, PSG signed the contract оn April 13, 2004. The contract, consistent with PSG’s original bid, required PSG to produce a machine that could manufacture 22 parts per hour. A couple weeks later, PSG learned that, contrary to Stevenson’s assurance, the forgings could not be changed to eliminate the excess material. Realizing that this meant it would have difficulty рroviding Minsor with a machine that could manufacture the promised 22 parts per hour, PSG offered to cancel the contract and return Minsor’s initial payment. Minsor declined and told PSG to keep working on the machine to see how close it could come to meeting the 22 parts per hour goal. By June, PSG had still not been able to produce an acceptable machine, and Minsor had rejected PSG’s proposals to address the problem. Minsor then cancelled the contract because of PSG’s failure to perform.
PSG brought suit for breach of contract and fraud in the inducement. It claimed that Minsor fraudulently induced it to entеr into the contract when Stevenson told PSG’s Glowacki that the steel forgings with the excess stock were just prototypes that could be changed later. PSG’s principal evidence that this statement was false was the testimony of Minsor’s vice-president of quality assurance, Patrick Smith. Smith testified that he knew early in the process that the production forgings would likely be the same as the prototypes and could probably not be changed.
At the trial, Minsor unsuccessfully moved for judgment as a matter of law at the close of PSG’s case. It did not renew this motion at the close of all the evidence, and the jury returned a verdict in favor of PSG. Minsor then retаined new counsel who moved for judgment notwithstanding the verdict and for a new trial. In its motions, Minsor argued that: (1) PSG should have written into the contract Stevenson’s assurance that the forgings could be changed and, therefore, was barred from asserting a fraud claim under the economic-loss doctrine; (2) the district court erroneously instructed the jury that the standard of proof on the fraud claim was by a preponderance of the evidence instead of clear and convincing evidence; (3) insufficient evidence supported the jury’s verdict on the fraud claim; and (4) there was insufficient evidence to justify the giving of a punitive damages instruction. Minsor did not challenge the jury’s verdict on the breach of contract claim.
PSG argued that Minsor had waived the economic-loss doctrine defense because it did not raise this defense before trial in a motion for summary judgment or a motion to dismiss. It contended that Minsor was only entitled to plain error review of the erroneous jury instruction because it did not object at trial and that the instruction did not violate Minsor’s substantial rights because the court also instructed the jury *699 that to award punitive damages it had to find by clear and convincing evidence that Minsor intentionally disregarded PSG’s rights. Finally, PSG pointed to Smith’s testimony as evidence that was sufficient to support the jury’s vеrdict on the fraud claim and support the giving of a punitive damages instruction. The district court accepted all of these arguments and denied Minsor’s motions.
II. ANALYSIS
As an initial matter, we note that at the time of the trial in this case, the Federal Rules of Civil Procedure required a party moving for judgment notwithstanding the verdict (“J.N.O.V.”) to first move for judgmеnt as a matter of law at the close of all the evidence. Fed.R.Civ.P. 50(b) (2005);
1
see also Laborers’ Pension Fund v. A & C Envtl., Inc.,
These procedural rules do not apply to motions for a new trial however. See Fed. R.Civ.P. 59. Therefore, we can consider all of Minsor’s arguments in support of that motion. On appeal, Minsor renews the arguments it made in the district court.
A. Economic Loss Doctrine
PSG argues that Minsor' waived its argument that the economic loss doctrine bars PSG from recovering on its fraud claim by not raising it sooner, and we agree. A motion for a new trial is not the appropriate place to raise for the first time arguments that could have been brought earlier in the proceedings.
Naeem v. McKesson Drug Co.,
B. Sufficiency of the Evidence & Burden of Proof Instruction
Minsor next argues that the district court erroneously denied its motion for a new trial on the grounds that the jury was given the wrong burden of proof on the fraud claim and that PSG did not present sufficient evidence to support the jury’s verdict on that claim. Under Wisconsin law, which the parties agree applies, PSG had to prove the following elements to support its fraud claim: (1) Minsor made a factual misrepresentation before contract formation, (2) Minsor knew the representation was untrue or made it recklessly without caring whether it was true, (3) Minsor made the representation intending to deceive PSG and induce PSG to act on it, and (4) PSG believed the representation to be true and justifiably relied on it.
Kaloti Enters., Inc. v. Kellogg Sales Co.,
The jury, however, was instruсted that in order to find that Minsor committed fraud, PSG had the burden of establishing each element by a preponderance of the evidence. PSG submitted the wrong instruction to the district court, and the error went unchecked. Minsor never supplied its own correct instruction and waited until its motion for a new trial to challenge the court’s instruction.
Fed.R.Civ.P. 51(d)(2) permits a court to consider a plain error in the jury instructions affecting substantial rights that has not been preserved as required by Fed.R.Civ.P. 51(d)(1). As in the criminal context, “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights,” and (4) the court must be convinced that the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.”
See Johnson v. United States,
Although the district court clearly erred by giving the wrong instruction, we find that Minsor has not met its “burden of establishing that the error affected substantial rights, i.e., that the outcome probably would have been different without the error.”
United States v. Pree,
This argument ignores the evidence that Minsor made further false representations about the excess material after PSG informed Minsor of the difficulties it was having with the prototype forgings. Rick Glowacki (оf PSG) testified that Brett Stevenson (of Minsor) told him that the prototype forgings were just preliminary and could be changed later. Based on this statement, Glowacki was reassured that the original representations about the excess material to be removed from the forging would be honored even though the prototype fоrgings turned out to have more excess material than expected. PSG presented enough evidence for the jury to conclude that Stevenson’s statement was knowingly false. Specifically, Patrick Smith (of Minsor) testified that he knew the prototype forgings probably could not be changed early in the process, around the same time that Stevenson told Glo-wacki the prototype forgings could be changed. Smith also testified that he had discussions with Stevenson about problems with the prototypes. The jury could easily infer from this testimony that at the time Stevenson told Glowacki that changes could be made to the prototypes, Stevenson, like Smith, knew that changes probably would not be possible. Indeed, that the jury awarded PSG punitive damages suggests that it found by “clear, satisfactory, and convincing evidence”
2
that Steven
*701
son had made a knowing misrepresentation.
Cf. United States v. Verrusio,
In its reply brief, Minsor argues that PSG was not justified in relying on Stevenson’s statement because all he said was that the forgings could be changed, not that they would be changed, and because PSG made no attempt to write this assurance into the contract. A party is not justified in relying on a representation that it should recognize as obviously false.
Hennig v. Ahearn,
At any rate, Minsor has failed to show that the particular error here is of the kind that if left uncorrected would result in a miscarriage of justice. As explained above, Minsor probably would have lost on PSG’s fraud claim even if the jury had been properly instructed, so Minsor is hard-pressed in claiming that this error tainted the district court proceedings. And here, the civil litigant claiming that it alone has been harmed by an erroneous instruction bears significant responsibility for that error in the first place.
Cf. Diaz-Fonseca v. Puerto Rico,
C. Punitive Damages
Finally, Minsor argues that the district court erred by instructing the jury on
*702
punitive damages because there was not sufficient evidence to show that Minsor acted maliciously, vindictively, or with an improper motive. But PSG did not have to show that Minsor acted maliciously or vindictively; it had to show only that Min-sor intentionally disregarded PSG’s rights.
See
Wis. Stat. § 895.043(3) (formerly § 895.85(3));
Wischer v. Mitsubishi Heavy Indus. Am., Inc.,
III. CONCLUSION
For the above reasons, we AffiRM the decision of the district court denying Min-sor’s motions for judgment notwithstanding the verdict and for a new trial.
Notes
. Effective December 1, 2006, Rule 50 was amended “to permit renewal of any Rule 50(a) motion for judgment as a matter of law, deleting the requirement that a motion be made at the close of all the evidence.’’ Fed. R.Civ.P. 50 advisory committee’s note.
. The jury was correctly instructed that this heightened burden applied for PSG’s punitive *701 damages claim.