UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
_____________________ N o
06-CV-4746 (JFB)(GRB) _____________________ ANTHONY CONTE,
Plaintiff, VERSUS COUNTY OF NASSAU, ET AL.,
Defendants. ___________________ MEMORANDUM AND ORDER
March 3, 2017 ___________________ Joseph F. Bianco, District Judge: 1
Following an unfavorable verdict result- ing from a jury trial on pro se plaintiff An- thony Conte’ s claim for tortious interference with contract, defendants William Wallace, Robert Emmons, and Michael Falzarano filed a Rule 50(b) motion seeking judgment as a matter of law (“JMOL”). In addition to chal- lenging plaintiff’s claim under the statu te of limitations, defendants raised five substan- tive arguments regarding the sufficiency of
1 Plaintiff’s letter motion for r ecusal dated December 23, 2016 (ECF No. 710) is denied. Plaintiff asserts that this Court is “hopelessly and profoundly biased toward [him]” based on its previous rulings in this case. (Id.) The Supreme Court has stated, however, that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994); see also United States v. Diaz, 176 F.3d 52, 112 (2d Cir. 1999) (“ [O]pinions formed by a judge on the basis of facts
the evidence at trial and governmental im- munity.
By Memorandum and Order dated July 26, 2013 (the “July 2013 Order”) (ECF No. 624), this Court granted the motion on the statute of limitations ground without address- ing the remaining five arguments and denied both parties’ Rule 59 motions for a new trial as moot. Plaintiff appealed. The Second Cir- cuit reversed and remanded on the tortious in- terference claim with instructions “to resolve that claim in further proceedings consistent introduced or events occurring in the course of judicial proceedings do not constitute a basis for recusal unless they indicate that the judge has a deep-seated favorit- ism or antagonism that would make fair judgment im- possible.” ). As plaintiff has identified no extrajudicial source as the basis for the alleged bias, see Liteky, 510 U.S. at 554– 55, and no such basis exists, his motion for recusal is denied.
with this order.” Conte v. C nty. of Naussau, 596 F. App’x 1, 3 (2d Cir. 2014) [hereinafter “ Conte I” ].
On remand, the parties disputed the scope of Conte I. Plaintiff argued that the only issue on remand was his Rule 59 motion for a new trial on damages, while defendants argued that this Court was required to address all the arguments they made in their Rule 50 motion. By Order dated April 2, 2015 (the “Apri l 2015 Order”) (ECF No. 650), this Court interpreted Conte I as only requiring it to address plaintiff’s Rule 59 motion based on language in Conte I suggesting that the Second Circuit had determined that the defendants waived their remaining Rule 50 arguments.
The defendants appealed the April 2015 Order, and the Second Circuit again vacated and remanded, holding that “ it was this Court’ s intention that the district court con- sider, in the first instance, all arguments re- lated to that claim other than the statute of limitations claim.” Conte v. Emmons , 647 F. App’ x 13, 14 (2d Cir. 2016) [hereinafter “ Conte II” ].
After considering the remaining five grounds defendants raise in their Rule 50 mo- tion, the Court concludes that defendants are not entitled to JMOL and, therefore, denies their Rule 50(b) motion. Specifically, the Court concludes that (1) defendants waived their immunity and sufficiency of the evi- dence arguments by failing to raise them be- fore the verdict, and (2) no manifest injustice will result from this Court declining to ad- dress these arguments on the merits.
I. BACKGROUND Familiarity with the facts is assumed. As such, this section will only summarize the procedural history relevant to defendants’
Rule 50 motion. Substantive evidence elic- ited during the trial relevant to specific issues will be summarized in the discussion section.
Acting pro se, Conte filed this action against the County of Nassau, Emmons, Wal- lace, Falzarano, Philip Wasilausky, Christina Sardo, Tefta Shaska, and Larry Guerra, alleg- ing federal claims under 42 U.S.C. § 1983 for false arrest, malicious prosecution, abuse of process, violation of the First Amendment, conspiracy, and Monell liability against the County. Plaintiff also asserted various state law claims, including claims for false arrest, abuse of process, and tortious interference with contractual relations.
Following discovery, plaintiff and all de- fendants filed motions for summary judg- ment with the Court. In their motion, defend- ants extensively argued that they were enti- tled to absolute immunity and qualified im- munity on plaintiff’s federal claims for false arrest and abuse of process. (Defs.’ Br. Supp. Mot. Sum. J., ECF No. 409 (“ Defs.’ Sum. J. Br.” ), at 14–22.) In a single sentence at the end of their brief, defendants also raised gov- ernmental immunity as a defense to the state law claims against Emmons, Wallace, and Falzarano, including the tortious interference with contract claim. (See id. at 25–26).
After a detailed review of the record and submissions of the parties, the Court issued a Memorandum and Order dated September 30, 2010 (the “Summary Judgment Order”) (ECF No. 462), granting in part and denying in part defendants’ motion for summary judg- ment and denying plaintiff’s motion for sum- mary judgment in its entirety. In that Order, the Court disposed of the defendants’ state law governmental immunity arguments with respect to Emmons, Wallace, and Falzarano, concluding that, under New York law, prose- cutors are not entitled to governmental im- munity “when performing an investigation outside the auspices of the grand jury,” and
there were factual issues over whether the “defendants employed regularly issued legal process with a collateral purpose.” (Sum- mary Judgment Order at 40.) This rendered summary judgment on the state law claims on the grounds of governmental immunity im- proper. (Id.) Between summary judgment and the jury’s verdict , defendants did not ex- plicitly raise governmental immunity in con- nection with the tortious interference with contract claim. (See, e.g., County Defs.’ Pro- posed Portion of Pre-Trial Order, ECF No. 572 (“Defs.’ Pre -Trial Order”), at 5; County Defs.’ Proposed Jury Verdict Sheet (“ Defs.’ Verdict Sheet” ), ECF No. 556, at 4–5.)
Pursuant to the Summary Judgment Or- der, the following claims survived summary judgment: (1) plaintiff’s false arrest claim against Wasilausky; (2) plaintiff’s abuse of process claim against all of the County de- fendants except Sardo; (3) plaintiff’s Monell claim against the County; and (4) plaintiff’s tortious interference with contract claim against all of the defendants except Sardo and Shaska. The matter was then tried before a jury.
At the conclusion of plaintiff’s case in chief, defendants orally moved pursuant to Rule 50(a) for JMOL. (Tr. 902–08). With respect to plaintiff’s tortious interference with contract claim, defense counsel only raised a statute of limitations argument. (See id. at 902–05.) He then spent considerable time discussing plaintiff’s claims for false ar- rest and abuse of process, neither of which is at issue here. (See id. at 905–08.) At the con- clusion of his argument on an abuse of pro- cess issue, counsel remarked that he “did not fully brief that particular issue.” ( Id. at 908.)
2 Plaintiff’s Monell claim was dismissed as a matter of law at trial. (See Tr. at 913– 16.)
It was at that point that the following ex- change occurred:
The Court: That is preserved for pur- poses of renewing it at the end of the case. Do you believe there is insuffi- cient evidence as a whole as well? Mr. Scott: Absolutely. The Court: In your summary judg- ment motion, you moved both on ab- solute immunity [and] qualified im- munity. And I assume that that is con- tinuing as well? Mr. Scott: Yes. Thank you, Judge. (Id.) Counsel did not elaborate on either of these arguments, and the Court reserved de- cision on the Rule 50 motion. (Id. at 908, 912.)
At the end of the trial, the jury found that (1) Wasilausky subjected plaintiff to an un- lawful arrest; (2) none of the defendants ma- liciously abused process in connection with plaintiff’s arrest on a bad check charge or in connection with the issuance of Grand Jury subpoenas; and (3) Emmons, Wallace, and Falzarano tortiously interfered with plain- tiff’s contractual relationships. 2
With respect to damages, the jury awarded $500.00 in compensatory damages and $26,000.00 in punitive damages against Wasilausky in con- nection with plaintiff’s false arrest claim. As to plaintiff’s tortious interference with con- tract claim, the jury awarded plaintiff $3,500.00 in compensatory damages for tor- tious acts that took place before June 1, 2005, and $700,000.00 in compensatory damages for tortious acts that took place on or after June 1, 2005. The jury also awarded punitive
damages in connection with plaintiff’s tor- tious interference with contract claim: $60,000.00 against Emmons; $443,000.00 against Wallace; and $175,000.00 against Falzarano.
After the trial, defendants Wasilausky, Wallace, Emmons, and Falzarano 3
moved for JMOL pursuant to Federal Rule of Civil Pro- cedure 50(b) on various grounds. As relevant here, defendants argued that (1) plaintiff’s tortious interference claim was barred by the statute of limitations; (2) plaintiff failed to adduce evidence of contracts he could en- force; (3) plaintiff failed to establish defend- ants breached any contract; (4) plaintiff failed to establish he had suffered any economic harm; (5) plaintiff’s agreements with route distributors were terminable at will, and thus could not give rise to an action; and (6) plain- tiff’s claim was barred by governmental im- munity. 4
(See Defs.’ Br. Supp. of Mot. J. as Matter Law, ECF No. 601-20 (“Defs.’ Br.”), at 10–31). Plaintiff, meanwhile, moved un- der Rule 59 for a new trial on damages, argu- ing that the Court improperly denied him the opportunity to present to the jury certain evi- dence of damages associated with the tortious interference with contract claim.
In its July 2013 Order, this Court granted defendants’ Rule 50(b) motion—finding that Emmons, Falzarano, and Wallace were enti- tled to JMOL on plaintiff’s tortious interfer- ence with contract claim because plaintiff failed to prove that any injury occurred
3 Hereinafter, “defendants” refers to Wallace, Em- mons, and Falzarano. 4 The Rule 50(b) motion also challenged the jury ver- dict on plaintiff’s false arrest claim against defendant Wasilausky. This Court granted that motion, and the Second Circuit upheld that decision on appeal. See Conte I, 596 F. App’x at 3.
within the limitations period. (July 2013 Or- der at 34). Because the Court vacated the jury’s verdict with respect to the tortious in- terference with contract claim, the Court de- nied both parties’ Rule 59 motions for new trials as moot.
On appeal, plaintiff argued, as relevant here, that this Court erred by granting the Rule 50(b) motion on his tortious interfer- ence with contract claim against Wallace, Emmons, and Falzarano and denying his Rule 59 motion for a new damages trial. 5
De- fendants contested these arguments, contend- ing that this Court’s statute of limitations rea- soning was correct and, in the alternative, that the Second Circuit could affirm the judgment on the basis of the other five issues raised in their Rule 50(b) motion.
On December 17, 2014, the Second Cir- cuit vacated this Court’s ruling granting JMOL (on the statute of limitations ground) in favor of Wallace, Emmons, and Falzarano in connection with Conte’s claim for tortious interference with contractual relations, and remanded. Conte I, 596 F. App’x at 5–7. The Court held that, because the factual issues re- lating to the statute of limitations defense were not submitted to the jury, the defendants were not entitled to have that issue decided by the district court. Id. at 6. With respect to the alternative grounds raised on appeal by defendants for JMOL on the tortious interfer- ence claim, the Second Circuit “decline[d] to address” defendants’ immunity or insuffi- ciency of the evidence arguments “for the 5 Plaintiff further argued that this Court erred in dis- missing his state law claims against the City of New York; dismissing on summary judgment his defama- tion, injurious falsehoods, and intentional infliction of emotional distress claims against Wasilausky, Em- mons, Wallace, Falzarano, and Shashka; and dismiss- ing his First Amendment claims against the County defendants on summary judgment. The Court of Ap- peals, however, affirmed these decisions. See Conte I, 596 F. App’x at 3.
first time on appeal” after noting that “ de- fendants did not specifically articulate these grounds for reversal in their Rule 50(a) mo- tion.” Id. “To be entitled to judgment as a matter of law on a factual issue,” the Court continued, “ the movant must, at the close of the plaintiff's case, identify the specific ele- ment that the defendant contends is insuffi- ciently supported.” Id. (quoting Galdieri– Ambrosini v. Nat’ l Realty & Dev. Corp., 136 F.3d 276, 286 (2d Cir. 1998)). With respect to the new trial motions under Rule 59, the Court determined that plaintiff was entitled to have the district court decide his new trial motion on remand. Id. at 6–7. With respect to the defendants’ new trial motion, the Court held that “because the def endants do not raise any reason for a new trial on appeal, we see no reason to deprive [Conte] of the benefit of the jury’s verdict.” Id . at 7 (citation omitted). In closing, the Second Circuit directed this Court “to resolve that claim [i.e., plaintiff’s tortious interference with contract claim] in further proceedings consistent with this or- der.” Id.
On remand, the parties disputed the scope of Conte I. Plaintiff argued that the only is- sue for the Court to decide was his motion for a new trial on damages, while defendants contended that the mandate required the Court to revisit their Rule 50 motion in its en- tirety—beyond the limitations issue that pre- cipitated the remand.
In its April 2015 Order, this Court inter- preted Conte I as only requiring it to address plaintiff’s Rule 59 motion for a new trial.
6 It read the language in Conte I regarding de- fendants’ failure to “specifically articulate these [alternative] grounds for reversal in their Rule 50(a) motion,” 596 F. App’x at 6, as a holding that defendants waived their im-
6 The Court denied plaintiff’s Rule 59 motion in a sep- arate Memorandum and Order issued April 2, 2015.
munity and sufficiency of the evidence argu- ments “in the District Court” ( April 2015 Or- der at 4; see also id. at 5 (“[T]he Second Cir- cuit made it abundantly clear that it had re- viewed the record and found those exact ar- guments to be waived. In other words, they could not be considered on appeal because they had been waived in the District Court.”) ). Correspondingly, this Court held that “the scope of the remand [from Conte I was] clearly limited to consideration of plain- tiff’s motion for a new trial on damages” and, therefore, declined to address defendants’ re- maining substantive arguments. (Id. at 6.)
On appeal, the Second Circuit vacated the April 2015 Order and remanded. Conte II, 647 F. App’x at 14. It clarified that, in Conte I, “ it was this Court’s intention that the dis- trict court consider, in the first instance, all arguments related to [the tortious interference with contract] claim other than the statute of limitations claim.” Id. Consequently, it “re- mand[ed] again to give the district court the opportunity to do so.” Id.
As such, the Court now considers defend- ants’ Rule 50(b) motion, including the five separate arguments raised as grounds for re- lief that this Court previously declined to ad- dress in its April 2015 Order. For the reasons set forth below, defendants’ Rule 50(b) mo- tion is denied in its entirety.
II. STANDARD OF REVIEW The standard governing motions for JMOL pursuant to Rule 50 is well-settled. A court may not properly grant JMOL under Rule 50 against a party “unless the evidence, viewed in the light most favorable to the non- moving party, is insufficient to permit a rea- sonable juror to find in his favor.” Arli o v. Lively, 474 F.3d 46, 51 (2d Cir. 2007) (citing
(ECF No. 651.) Plaintiff appealed that decision (ECF No. 661), but has since withdrawn his appeal.
Galdieri-Ambrosini, 136 F.3d at 289). Gen- erally, a court reviewing such a motion must defer to all credibility determinations and reasonable inferences that the jury may have drawn at trial. See Frank Sloup & Crabs Un- ltd., LLC v. Loeffler, 745 F. Supp. 2d 115, 120 (E.D.N.Y. 2010). That is, a court considering a Rule 50 motion “may not itself weigh the credibility of witnesses or consider the weight of the evidence.” Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001) (quoting Galdieri-Ambrosini, 136 F.3d at 289); see also Playtex Prod., Inc. v. Procter & Gamble Co., No. 02 CIV.8046 WHP, 2004 WL 1658377, at *2 (S.D.N.Y. July 26, 2004) (“A Rule 50(b) motion cannot be granted ‘if, drawing all reasonable inferences in favor of the nonmoving party and making all credibil- ity assessments in his favor, there is sufficient evidence to permit a rational juror to find in his favor.’” (quoting Sir Speedy, Inc. v. L&P Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir. 1992))).
Thus, JMOL is appropriately granted where “(1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the re- sult of sheer surmise and conjecture, or (2) there is such an overwhelming amount of ev- idence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].” Advance Pharm., Inc. v. United States, 391 F.3d 377, 390 (2d Cir. 2004) (alterations in original) (quoting Galdieri-Ambrosini, 136 F.3d at 289); see also Kinneary v. City of N.Y., 601 F.3d 151, 155 (2d Cir. 2010) (same); This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998) (stating that a court assessing a Rule 50 mo- tion must consider whether “the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [people] could have reached” (quoting Cruz
v. Local Union No. 3, Int’l Bd. of Elec. Work- ers, 34 F.3d 1148, 1154– 55 (2d Cir. 1994))). In other words, this Court may only grant de- fendants’ Rule 50(b) motion “if it cannot find sufficient evidence supporting the jury’s ver- dict.” Playtex Products, 2004 WL 1658377, at *2; see also Black v. Finantra Capital, Inc., 418 F.3d 203, 209 (2d Cir. 2005) (“A court evaluating  a motion [for JMOL] cannot as- sess the weight of conflicting evidence, pass on the credibility of the witnesses, or substi- tute its judgment for that of the jury.”). For this reason, a party moving to set aside a jury verdict must clear “a high bar.” Lavin- McEleney v. Marist College, 239 F.3d 476, 479 (2d Cir. 2001).
III. DISCUSSION Defendants argue that (1) they raised their governmental immunity and sufficiency of the evidence arguments in their Rule 50(a) motion and (2) even if they had not done so, JMOL is necessary to avoid a manifest injus- tice. For the reasons set forth below, the Court disagrees and, therefore, denies de- fendants’ Rule 50(b) motion.
A. Waiver Once a case has been submitted to the jury, a motion for JMOL “ may be renewed only on grounds that were specifically articu- lated before submission of the case to the jury.” Kirsch v. Fleet St., Ltd. , 148 F.3d 149, 164 (2d Cir. 1998); see also Provost v. City of Newburgh, 262 F.3d 146, 161 (2d Cir. 2001) (“ Because [defendant] did not specifi- cally include a qualified immunity argument in his pre-verdict request for judgment as a matter of law, he could not have included such an argument in his post-verdict motion even had he attempted to do so.”) . The pur- pose of this “ specificity requirement” “ is to give the other party an opportunity to cure the defects in proof that might otherwise pre- clude him from taking the case to the jury.”
Galdieri-Ambrosini, 136 F.3d at 286 (quoting Baskin v. Hawley, 807 F.2d 1120, 1134 (2d Cir. 1986)). Therefore, where a defendant ar- guably failed to satisfy the specificity re- quirement, “[t]he ultimate question is whether the motion, either of itself or in the context of the ensuing colloquy, was suffi- ciently specific to alert the opposing party to the supposed deficiencies in her proof.” Id. General arguments not tailored to a spe- cific claim are insufficient to meet the speci- ficity requirement. In Piesco v. Koch, 12 F.3d 332, 341 (2d Cir. 1993), for example, the Second Circuit held that the defendants failed to meet the specificity requirement in their Rule 50(a) motion when, at the close of the evidence, counsel simply stated, “De- fendants move for a directed verdict.” This statement, the Court reasoned, “ plainly did not identify the issue on which defendants contended there was insufficient evidence to permit the jury to find in favor of [the plain- tiff]” and, therefore, did not give the “ plain- tiff the adequate notice envisioned by Rule 50.” Id. The Court reached the same conclu- sion in Smith v. Lightning Bolt Products., Inc., 861 F.2d 363, 368 (2d Cir. 1988), where the defendant’s “ first motion stated simplisti- cally that ‘ plaintiff has failed to make out a prima faci[e] case’ ; and its attorney renewed this motion with only the statement, ‘ I don't believe there is any evidence before this Jury of any fraud.’ ” Again, these motions were not “sufficiently specific to alert [the plain- tiff] to [the defendants’ Rule 50(b)] conten- tions that there was simply no proof” to sup- port a specific element of the claim. Id.; see also Am. Nat’ l Fire Ins. Co. v. Mirasco, Inc., 451 F. Supp. 2d 576, 581 (S.D.N.Y. 2006). Relatedly, when challenging the suffi- ciency of the evidence, a defendant must “ identify the specific element that the defend- ant contends is insufficiently supported” be- fore the case is submitted to the jury to satisfy
the specificity requirement. Galdieri-Am- brosini, 136 F.3d at 286. In their Rule 50(a) motion in Kirsch, for example, the defend- ants “challenged the evidence of discrimina- tion and constructive discharge . . . but they did not mention any lack of proof as to will- fulness.” 148 F.3d at 164. Thus, when they challenged the sufficiency of the evidence on the element of willfulness in their post-trial motion, the Second Circuit held that the “challenge was not authorized by Rule 50(b) because no JMOL motion had been made on that issue before submission of the case to the jury.” Id. Furthermore, where a defendant raises an argument with respect to one claim but not another, the Second Circuit has held that the defendant waived that argument with respect to the second claim. For instance, in McCardle v. Haddad, 131 F.3d 43, 52 (2d Cir. 1997), a case involving 42 U.S.C. § 1983 claims for unlawful stop and unlawful sei- zure, defense counsel argued at the close of the evidence that “on the issue of illegal stop . . . the evidence compels a ruling for the De- fendant . . . on the issue of qualified immun- ity.” However, “ no mention whatever was made of qualified immunity with respect to the claim of illegal search.” Id. After the trial, the defendant moved for JMOL on the plaintiff’s unlawful search claim on the grounds of qualified immunity. Id. The Sec- ond Circuit determined that the “ motion was improper to the extent that it sought to invoke qualified immunity because no motion for JMOL on that basis had been directed to the claim of unlawful search at trial.” Id. In Galdieri-Ambrosini, by contrast, the Second Circuit concluded that the defendant ade- quately raised a particular argument with re- spect to multiple claims. 136 F.3d at 287. In that case, defense counsel made a detailed ar- gument for JMOL prior to the verdict on the plaintiff’s gender discrimin ation claim. Id. The district court then asked if the defend- ant’s 50(a) motion “was meant to encompass
the [plaintiff’s] retaliation claim,” as the court “had not heard [defense] counsel in- clude that claim.” Id. Counsel replied, “ I think that they follow. The issues are the same. There is no evidence, your Honor. I think that flows right through every cause of action.” Id. (quoting trial transcript). The Second Circuit held that this comment ren- dered “ the Rule 50(a) motion . . . sufficient to cover the claim of retaliation.” Id. Finally, while making a Rule 50(a) argu- ment, a defendant’s “explicit refe rence to ma- terials and argument previously supplied to the court” can preserve those arguments for the Rule 50(b) motion. Hudson Optical Corp. v. Cabot Safety Corp., 162 F.3d 1148, *1 (2d Cir. 1998) (unpublished opinion) (quoting Fed. R. Civ. P. 50, Advisory Com- mittee Notes). In Hudson, for example, the Second Circuit noted that, “[i]n moving for judgment as a matter of law prior to the ver- dict, [the defendant] referenced its motion in limine (in which it had argued that the fraud claim was not viable).” Id. The Court, there- fore, concluded that the argument was pre- served for the Rule 50(b) motion. Id.
1. Governmental Immunity Under this body of law, defendants’ gov- ernmental immunity argument “ had plainly been waived” when they raised it in their written Rule 50(b) motion after the trial. McCardle, 131 F.3d at 52. Defendants did not explicitly raise their state law govern- mental immunity argument in their Rule 50(a) motion. See Conte I, 596 F. App’x at 6 (“[D] efendants did not specifically articulate these grounds for reversal in their Rule 50(a) motion.”). Thus, that argument was waived. See Provost, 262 F.3d at 161; Kirsch, 148 F.3d at 164. Defendants point out that counsel re- sponded “Yes” when, at the close of plain- tiff’s case, the Court asked him, “ In your
summary judgment motion, you moved both on absolute immunity [and] qualified immun- ity. And I assume that that is continuing as well?” ( Tr. at 908.) They argue that, given their governmental immunity arguments at summary judgment, counsel’s affirmative re- sponse to the Court’s question was adequate to notify plaintiff of their governmental im- munity argument with respect to his tortious interference with contract claim. The Court disagrees. It is true that a party can preserve an argument prior to the close of evidence by making an “explicit refe rence to materials and argument previously supplied to the court.” Hudson Optical , 162 F.3d 1148, *1 (quoting Fed. R. Civ. P. 50, Advi- sory Committee Notes). In the context of the record, however, counsel’s vague, Court - prompted confirmation that he was “continu- ing” his immunity arguments from the sum- mary judgment stage was not explicit enough to put plaintiff on notice that defendants were reviving their governmental immunity argu- ment with respect to the tortious interference with contract claim. See Galdieri-Ambrosini, 136 F.3d at 287 (“The ultimate question is whether the motion, either of itself or in the context of the ensuing colloquy, was suffi- ciently specific to alert the opposing party to the supposed deficiencies in her proof.”). Specifically, the Court asked about im- munity immediately after counsel delivered an argument on plaintiff’s abuse of process claim. (See Tr. at 907– 08.) Concentrating “on the third cause of action, malicious abuse of process,” counsel stated that plaintiff failed to establish “any evidence of malice or an intent to destroy the plaintiff’s business.” (Id. at 907, 908.) He continued, “I did not fully brief that particular issue,” and the Court responded, “That is preserved for pur- poses of renewing it at the end of the case.” (Id. at 908.) It was only at this point that the questions about immunity arose. (Id.) No
mention was made in that moment of the tor- tious interference claim, as everyone in- volved was focused on abuse of process. (See id. at 907–08.) Indeed, a lengthy discussion of plaintiff’s false arrest claim had occurred between the tortious interference and abuse of process arguments (see id. at 905–08), fur- ther divorcing the tortious interference dis- cussion from the Court’s question about im- munity. Thus, in context, counsel clearly was reasserting his immunity defenses with re- spect to abuse of process and possibly false arrest, but certainly not tortious interference. The procedural history of this case bol- sters this reading of the record. The only time defendants raised the governmental immun- ity argument prior to their Rule 50(b) motion was at summary judgment. At that time, however, the argument was fairly cursory, es- pecially with respect to tortious interference with contract. After noting that plaintiff raised state law claims including tortious in- terference (Defs.’ Sum. J. Br. at 25), defend- ants summarily asserted that “Emmons, Wasilausky, Wallace, and Falzarano are also entitled to absolute immunity from suit since, under New York State Law, a prosecutor is immune from civil suit for official acts per- formed in the investigation and prosecution of criminal charges” (id. at 26 (citation omit- ted)). They did not elaborate on how the ac- tions giving rise to plaintiff’s tortious inter- ference claims fell into this category at this point in their brief. Their earlier arguments concerning federal immunity, meanwhile, were restricted to plaintiff’s claims for false arrest and abuse of process, which were based on different courses of conduct. 7
(See id.) Therefore, the logic of defendants’ federal immunity arguments made with respect to 7 Specifically, plaintiff’s tortious interference with contract claim was based on defendants’ statements to route distributors, printers, and advertisers that plain- tiff was a scam artist and his business was fraudulently run. (See July 2013 Order at 8– 10, 27.) His false ar-
plaintiff’s false arrest and abuse of process claims does not apply to his tortious interfer- ence claim. It follows that defendants’ refer- ence to these arguments from summary judg- ment during their oral Rule 50(a) motion was insufficient “ to alert the opposing party to the supposed deficiencies in [his] proof.” Galdieri-Ambrosini, 136 F.3d at 287. In their proposed pre-trial order, moreo- ver, defendants did not indicate that they would be raising governmental immunity as an affirmative defense to the tortious interfer- ence with contract claim. (See Defs.’ Pre- Trial Order at 5 (qualified immunity raised as a defense to state law claims of false arrest and malicious abuse of process, but not tor- tious interference with contract).) Through- out the trial, meanwhile, counsel’s oral argu- ments concerning immunity were restricted to the false arrest and abuse of process claims, not tortious interference. (See, e.g., Tr. at 1022 (defense counsel discussing im- munity in the context of the false arrest claim and the misdemeanor information); cf. id. at 1189–1191 (while renewing Rule 50(a) mo- tion, immunity argument restricted to false arrest issue, and only argument on tortious in- terference issue concerned statute of limita- tions).) In light of defendants’ apparent abandon- ment of the immunity defense on the tortious interference claim at the time counsel made his Rule 50(a) motion, counsel’s one -word answer to the Court’s brief question regard- ing immunity cannot be interpreted as a re- vival of defendants’ perfunctory summary judgment argument that they were entitled to governmental immunity on the tortious inter-
rest claim, by contrast, arose out of Wasilausky’s ar- rest of plaintiff in connection with a bad check (see id. at 5, 14– 16), and his abuse of process claim arose out of the subpoenas defendants issued to plaintiff request- ing documents in connection with their investigation (see id. at 9).
ference claim. Instead, it can only be inter- preted as, at most, a reassertion of the immun- ity arguments on the false arrest and abuse of process claims. It follows that, because the Second Cir- cuit has made clear that arguments on one claim are not enough to preserve those same arguments on another claim, defendants have not preserved their immunity argument on the tortious interference claim. See Mc- Cardle, 131 F.3d at 52. Unlike Galdieri-Am- brosini, this was not a case where counsel made an argument about why immunity should be granted on the false arrest and abuse of process claims and then added as an afterthought that the same logic applied to the tortious interference claim. See 136 F.3d at 287. Instead, it is much closer to McCardle, where counsel briefly raised qualified im- munity on only one claim, and the Second Circuit deemed that the defendant waived qualified immunity on the other claim. 131 F.3d at 52. Specifically, as noted above, counsel’s passing remark, at most, reasserted defendants’ immunity arguments on the false arrest and abuse of process claims, rendering it inadequate to preserve their Rule 50(b) ar- gument that they are entitled to governmental immunity on the separate tortious interfer- ence claim. See id. This argument, therefore, was waived. 8
See id.; Provost, 262 F.3d at 161; Kirsch, 148 F.3d at 164.
2. Sufficiency of the Evidence The same is true for defendants’ suffi- ciency of the evidence arguments. See McCardle, 131 F.3d at 52. In their Rule 50(a) motion, defendants never claimed, as they do now, that there was no evidence of valid con- tracts, conduct constituting tortious interfer- ence, actual breach, causation, or damages. See Conte I, 596 F. App’x at 6. Instead, these 8 As discussed below, even if properly preserved, the Court concludes that defendants would not be entitled
arguments were raised for the first time in their initial Rule 50(b) motion. (See Defs.’ Br. at 16–19 (no evidence of valid contracts), 19–23 (breach), 23–26 (damages), 27–29 (conduct)). As such, the Court concludes that defendants waived these arguments. See Provost, 262 F.3d at 161; Kirsch, 148 F.3d at 164. Again, defendants argue that their collo- quy with the Court at the close of plaintiff’s case-in-chief adequately preserved their suf- ficiency of the evidence arguments. Specifi- cally, they argue that, because counsel con- firmed that he “believe[d] there [was] insuf- ficient evidence as a whole as well,” they did not waive their more specific arguments chal- lenging the individual elements of plaintiff’s tortious interference with contract claim. The Court disagrees. At the outset, the Court finds that counsel’s r emark, when read in context, was a reference to his abuse of process and false arrest claims for the same reasons that his comment on immunity only applied to those claims. Even assuming, however, that counsel was challenging the sufficiency of the evidence underlying all of plaintiff’s claims, it is clear from Piesco and Lighting Bolt Products that short, conclusory, and simplistic statements are not enough to preserve more detailed arguments. Counsel’s statement here closely resembles the remarks in Lightning Bolt Products, where the attor- ney stated, at various times prior to the ver- dict, that “ plaintiff has failed to make out a prima faci[e] case” and that he, the attorney, did not “ believe there [was] any evidence be- fore this Jury of any fraud.” 861 F.2d at 368. Like those statements, counsel’s passing, conclusory remark here was not “ sufficiently specific to alert [plaintiff] to [defendants’] present contention[s]” that the evidence was insufficient to show a valid contract, conduct to JMOL on this ground based upon the record before the Court.
constituting tortious interference, a breach, causation, or damages. Id. From this sole re- mark, plaintiff could not have discerned these more precise arguments with enough clarity “ to cure the defects in proof that might other- wise preclude him from taking the case to the jury.” Galdieri -Ambrosini, 136 F.3d at 286 (quoting Baskin, 807 F.2d at 1134.) Indeed, counsel’s general statement here would pro- vide even less notice than the defense attor- ney’s detailed arguments in Kirsch targeting specific elements of the plaintiff’s claim, which the Second Circuit nevertheless found insufficient to preserve a similar argument on a different claim. See 148 F.3d at 164. Therefore, the Court concludes that counsel’s brief remark prior to the verdict was not spe- cific enough to preserve defendants’ Rule 50(b) sufficiency of the evidence arguments. See Provost, 262 F.3d at 161; Kirsch, 148 F.3d at 164; Galdieri-Ambrosini, 136 F.3d at 286.
B. Manifest Injustice Where, as here, a defendant fails to sat- isfy the specificity requirement, “JMOL may neither be granted by the district court nor up- held on appeal unless that result is required to prevent manifest injustice.” Galdieri -Am- brosini, 136 F.3d at 287 (quoting Cruz, 34 F.3d at 1155). Whether to grant JMOL on the basis of a waived argument to prevent a manifest injustice is left to the court’s discre- tion. See Flannigan v. Vulcan Power Grp., LLC, 642 F. App’x 46, 51 (2d Cir. 2016) (“[W] e may exercise our discretion to con- sider the [waived] issue if necessary to pre- vent manifest injustice.” (citations omitted)); Malmsteen v. Berdon, LLP, 369 F. App’ x 248, 249 (2d Cir. 2010) (“T he forfeited issue may be reached if to ignore it would result in manifest injustice.” (emphasis added) (cit- ing Fabri v. United Tech. Int’ l, Inc., 387 F.3d 109, 119 (2d Cir. 2004))); Wat Bey v. City of N.Y., No. 01 CIV. 09406 (AJN), 2013 WL 12082743, at *12 (S.D.N.Y. Sept. 4, 2013)
(“[T] he Court could, at its discretion, review the [waived] issue . . . if doing so was re- quired to prevent manifest injustice.”). Nev- ertheless, “[w] here the argument presents a question of law and there is no need for addi- tional fact-finding, and manifest injus- tice may arise, then exercise of this discretion is warranted.” Welch v. United Parcel Serv., Inc., 871 F. Supp. 2d 164, 178 (E.D.N.Y. 2012) (quoting Malmsteen, 369 F. App’x at 251).
The manifest injustice inquiry is fact-spe- cific, Protostorm, LLC v. Antonelli, Terry, Stout & Krauss, LLP, No. 08-CV-931 PKC JO, 2015 WL 3605143, at *4 (E.D.N.Y. June 5, 2015) (“ What constitutes manifest injus- tice turns on the specifics of each case.”), and “ a defendant may not merely argue that the procedural bar should be waived because they should win on the underlying motion.” Welch, 871 F. Supp. 2d at 178. Instead, he must establish that the “jury’ s verdict is wholly without legal support.” Patsy’ s Ital- ian Rest., Inc. v. Banas, 658 F.3d 254, 271 (2d Cir. 2011) (quoting Russo v. State of N.Y., 672 F.2d 1014, 1022 (2d Cir. 1982)). In Russo, for instance, the Second Circuit con- cluded that a jury verdict was “wholly with- out legal support” where the plaintiff “failed to prove one of the four essential elements of a malicious prosecution action.” 672 F.2d at 1022; see also Sojak v. Hudson Waterways Corp., 590 F.2d 53, 54 (2d Cir. 1978); Oli- veras v. Am. Exp. Isbrandtsen Lines, Inc., 431 F.2d 814, 817 (2d Cir. 1970). By contrast, where there is evidence to support each ele- ment of a claim, there is no manifest injustice when a court declines to entertain a suffi- ciency of the evidence argument on that claim. See, e.g., Lore v. City of Syracuse, 670 F.3d 127, 154 (2d Cir. 2012); Cordius Trust v. Kummerfeld, 331 F. App’ x 810, 811 (2d Cir. 2009); Kirsch, 148 F.3d at 164; Reich- man v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 281 (2d Cir. 1987).
In addition, the Second Circuit has indi- cated that it “ cannot find manifest injus- tice . . . where, had Defendants properly raised [an] issue at trial, ‘ it may be that Plain- tiffs would have been able to present addi- tional evidence’ ” on that issue. Rivera v. City of N.Y., 594 F. App’ x 2, 6 (2d Cir. 2014) (quoting Kirsch, 148 F.3d at 165) (brackets omitted). In Rivera, for example, the district court found the evidence insufficient to sup- port the jury’s punitive damages award even though the defendant failed to make such an argument prior to the verdict. Id. at 4–5. Th e Second Circuit held that, because the defend- ant failed to challenge the sufficiency of the evidence in its Rule 50(a) motion, “ the dis- trict court was not permitted to reach the question of the sufficiency of the evidence, and the subsequent vacatur of the punitive damages award was an abuse of discretion.” Id. at 6. It expressly rejected the defendant’s claim that vacatur of the award was necessary to prevent manifest injustice. Id.; see also In re Johns-Manville Corp., 759 F.3d 206, 219 (2d Cir. 2014) (consideration of arguments raised for the first time on appeal is disfa- vored “where those a rguments were available to the parties below and they proffer no rea- son for their failure to raise the arguments be- low” (quoting In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (brackets omitted))); Corsair Special Situa- tions Fund, L.P. v. Nat’l Res., 595 F. App’x 40, 44 (2d Cir. 2014) (“[A] judgment in a civil case does not constitute ‘ manifest injus- tice’ where the movant’ s arguments for relief ‘ were available to the [party] below and [the 9 As an initial matter, the Court notes that defendants argue that the “manifest injustice” standard warrants granting JMOL in their favor. Even in instances where manifest injustice has been found, however, the rem- edy is not JMOL, but rather a new trial during which plaintiff would have an opportunity to cure the defects that were not properly raised. See, e.g., Baskin, 807 F.2d at 1134 (“Thus, if the party moving for judgment n.o.v. has not moved for a directed verdict, and if the court is nevertheless satisfied that justice requires that
party] proffer[s] no reason for [its] failure to raise the arguments.’” (quoting Johns–Man- ville Corp., 759 at 219) (alterations in origi- nal)).
The Court declines to exercise its discre- tion to grant defendants’ Rule 50 motion on the basis of their waived arguments. 9
First, with respect to their governmental immunity argument, the Court finds that, as with their earlier statute of limitations argument, their immunity defense raises a factual question that defendants should have submitted to the jury. In any event, plaintiff presented evi- dence suggesting bad faith by defendants in conducting the investigation, and the jury, by virtue of its finding of malice as to the de- fendants with respect to the award of punitive damages, essentially found that such bad faith existed. See Rodrigues v. City of N.Y., 602 N.Y.S.2d 337, 341– 43 (N.Y. App. Div. 1993) (indicating that governmental immun- ity does not apply where government agents acted in bad faith). Construing the evidence at trial most favorably to plaintiff, there is no basis to disturb that finding or to find that a “manifest injustice” exists with respect to the governmental immunity issue. Second, with respect to the various elements of a tortious interference claim, the Court disagrees with defendants’ contention that the verdict is “wholly without legal support.” Russo, 672 F.2d at 1022. Plaintiff presented evidence pertaining to each and every one of the ele- ments of a tortious interference claim. 10
To the extent that defendants make a post-trial attempt to raise specific defects with respect
the judgment be vacated for insufficiency of the evi- dence, the court should normally grant a new trial.”). 10 Although this Court initially ruled that pre-June 1, 2005 evidence regarding the tortious interference of contract claim was barred by the statute of limitations, the Second Circuit reversed that finding and, thus, the Court can analyze that evidence in determining the sufficiency of the evidence on the question of manifest injustice.
to certain proof, this Court “ cannot find man- ifest injustice” because def endants could have “properly raised [these] issue[s] at trial,” and, had they done so, plaintiff “would have been able to present additional evi- dence,” or make other applications to the court, to address the alleged defects in proof. Rivera, 594 F. App’ x at 6 (quoting Kirsch, 148 F.3d at 165). Under these circumstances, no manifest injustice will result from the Court’s refusal to grant JMOL on the basis of the waived arguments and, therefore, defend- ants’ Rule 50(b) motion is denied.
1. Governmental Immunity The Second Circuit has indicated that a manifest injustice will not result from a court’s refusal to entertain an immunity argu- ment where the evidence is sufficient to prove that immunity does not apply. Specif- ically, in Provost, after concluding that a de- fendant had waived his qualified immunity argument by failing to raise it in his Rule 50(a) motion, the Second Circuit held that it did not need to grant the Rule 50(b) motion to prevent a manifest injustice. 262 F.3d at 162. To justify this holding, the Court rea- soned that “ the evidence would have reason- ably supported a finding that [the defendant] acted abusively without even a belief that the arrest was justified.” Id. Therefore, it was “ doubtful that [the defendant] was entitled to qualified immunity as a matter of law.” Id.
Echoing their argument from summary judgment, defendants claim that, under New York law, an officer is entitled to absolute immunity for the consequences of his discre- tionary actions “even if resulting from negli- gence or malice.” (Defs.’ Supp l. Mem. Law Supp. Rule 50 Mot., ECF No. 703 (“Defs.’ Suppl. Br.”) , at 22 (quoting Tango v. Tule- vech, 61 N.Y.2d 34, 40 (N.Y. 1983)). 11
They, 11 Defendants also argue that there is insufficient evi- dence to support a finding of “bad faith,” as required to overcome qualified immunity. (Defs.’ Suppl . Br. at
therefore, argue that they are immune from plaintiff’s tortious interference claim because all their actions were conducted pursuant to a lawful investigation. (See id. at 24–25.)
As this Court made clear in its Summary Judgment Order, however, “ there are situa- tions where, when performing an investiga- tion outside the auspices of the grand jury, prosecutors would not be entitled to absolute immunity.” (Summary Judgment Order at 40 (citing Rodrigues, 602 N.Y.S.2d at 341–43; Hirschfeld v. City of N.Y., 686 N.Y.S.2d 367, 370 (N.Y. App. Div. 1999)).) Specifically, “ [w]hen a Grand Jury or a court is not in- tended to be convened, the prosecutor is not exercising a prosecutorial function,” and therefore is not entitled to governmental im- munity. (Id. (quoting Moore v. Dormin, 676 N.Y.S.2d 90, 94 (N.Y. App. Div. 1998) (Tom, J., concurring)).) In Rodrigues, for in- stance, the District Attorney’s office issued numerous grand jury subpoenas to custom- ers, suppliers, and business contacts of the plaintiff’s comp any in connection with an in- vestigation into his financial affairs even though no grand jury had been convened. 602 N.Y.S.2d at 339. Plaintiffs brought an abuse of process claim based on this conduct, alleging that the prosecutors “engaged in an extortion scheme to harass and destroy them.” Id. at 340. The Appellate Division held that the prosecutors were not entitled to absolute immunity because New York law “ confers no power upon the District Attorney to employ a subpoena for the purpose of con- ducting his own investigation.” Id. at 342. Where “ an official is acting in knowing vio- lation of law,” the court continued, “ he should be made to hesitate.” Id. at 343.
Under Rodrigues, moreover, governmen- tal immunity presents a mixed question of
24 n.13 (quoting Arteaga v. State of New York, 72 N.Y.2d 212, 216 (N.Y. 1988)).)
law and fact, as the plaintiff’s factual allega- tion that the prosecutors issued the subpoenas in bad faith was enough to defeat the defend- ant’s immunity argument at the motion to dis- miss stage. See id. at 340, 342–43; see also Jones v. Parmley, 465 F.3d 46, 64 (2d Cir. 2006) (“ Clearly, without a factual resolution of the sharply conflicting versions of these events, it is not possible to determine whether defendants are qualifiedly immune.” (quoting Simpkin v. City of Troy, 638 N.Y.S.2d 231, 232 (N.Y. App. Div. 1996))). Thus, in the in- stant case, it was for the jury to decide whether defendants ever intended to convene a grand jury or whether they were conducting their “own investigation” in bad fai th. See Rodrigues, 602 N.Y.S.2d at 342–43. The burden of proof was on the defendant to prove entitlement to governmental immunity. See Villar v. Howard, 28 N.Y.3d 74, 80–81 (N.Y. 2016) (“[D]efendant’ s argument that he is entitled to governmental immunity . . . [is] an affirmative defense on which he bears the burden of proof.” (citing Valdez v. City of New York, 18 N.Y.3d 69, 79–80 (N.Y. 2011))); see also Lore, 670 F.3d at 149 (“[A] defendant has the burden of proof with re- spect to affirmative defenses, and qualified immunity is such a defense.” (citing, inter alia, Jules Rabin Associates, Inc. v. Lan- don, 38 N.Y.2d 827, 828 (N.Y. 1976) (char- acterizing state law qualified immunity as “an affirmative defense”)) ).
As the Second Circuit made clear in Conte I, moreover, “ to the extent that a par- ticular finding of fact [is] essential to an af- firmative defense, the defendant must . . . re- quest that the jury be asked the pertinent question. If the movant fails to request a spe- cial interrogatory, he is not entitled to have the court, in lieu of the jury, make the needed factual finding.” 596 F. App’x at 6 (brackets and citations omitted). Thus, it vacated this Court’s initial ruling on the statute of limita- tions issue even though this Court found no evidence that the plaintiff’s injuries occurred
during the limitations period because find- ings of fact “were essential to [the] affirma- tive defense, [and] the defendants were not entitled to have the district court decide these facts in the first instance.” Id.
The same is true here. As noted above, to establish their entitlement to state law gov- ernmental immunity under Rodrigues, de- fendants needed to prove that their actions were pursuant to a legitimate investigation, rather than their “own investigation.” 602 N.Y.S.2d at 342. They also needed to prove that the investigation was not conducted in bad faith to establish state law qualified im- munity. See Arteaga, 72 N.Y.2d at 216. Therefore, it was incumbent on defendants to “to request that the jury be asked the pertinent question.” Zellner v. Summerlin , 494 F.3d 344, 368 (2d Cir. 2007); see also Conte I, 596 F. App’x at 6.
It is true that, with respect to the proposed verdict sheet, defendants included one ques- tion that appears to relate to the issue of im- munity, and a corresponding proposed in- struction. (See Defs.’ Verdict Sheet ¶ 15; County Defs.’ Proposed Jury Instructions, ECF No. 555, at 15.) They did not, however, object to the Court’s Proposed Verdict Sheet (ECF No. 575), a general verdict sheet that contained no such question. (See Tr. at 922, 925–26 (no objection to C ourt’s instructions or the proposed verdict sheet based on ab- sence of immunity language on tortious inter- ference claim during charge conference).) Because they did not object to this more gen- eral verdict form, they are “not entitled to have the district court decide . . . facts in the first instance” to resolve their affirmative de- fense of state law governmental and qualified immunity. Conte I, 596 F. App’x at 6; see also Jarvis v. Ford Motor Co., 283 F.3d 33, 57 (2d Cir. 2002) (“ We have previously em- phasized that ‘ [f]ailure to object to a jury in- struction or the form of an interrogatory prior to the jury retiring results in a waiver of that
objection. . . . Surely litigants do not get an- other opportunity to assign as error an alleg- edly incorrect charge simply because the jury’ s verdict comports with the trial court’ s instructions.’ ” (quoting Lavoie v. Pac. Press & Shear Co., a Div. of Canron Corp., 975 F.2d 48, 55 (2d Cir. 1992))); Clarex Ltd. v. Natixis Sec. Americas LLC, No. 1:12-CV- 7908-GHW, 2014 WL 4276481, at *10 (S.D.N.Y. Aug. 29, 2014) (“[A] party ‘ may [not] rely on her submission of proposed jury instructions’ which were not adopted by the district court to preserve an objection for ap- peal.” (quoting Caruso v. Forslund, 47 F.3d 27, 31 (2d Cir. 1995))); Gray v. Genlyte Grp., Inc., 289 F.3d 128, 134 (1st Cir. 2002) (“[E] ven if the initial request is made in de- tail, the party who seeks but did not get the instruction must object again after the in- structions are given but before the jury retires for deliberations.”) .
In any event, plaintiff presented evidence to the jury to show that the conduct forming the basis of his tortious interference with con- tract claim occurred in the course of defend- ants’ “own investigation” and in bad faith, ra- ther than within the scope of a legitimate grand jury investigation. Rodrigues, 602 N.Y.S.2d at 342. As a threshold matter, de- fendants Emmons and Wallace testified that no evidence was ever presented to a grand jury. (Tr. at 392–93 ( Emmons admitting that “no evidence was presented to the grand jury” ); id. at 550 (Wallace responding “No” when asked if he “ever present[ed] the case to a grand jury”) .) As discussed in more de- tail below, plaintiff recounted an instance where, when defendant Falzarano served him a subpoena, Falzarano “gra bbed my hand and started squeezing it in a crushing manner.” (Id. at 155.) At this point, plaintiff testified that Falzarano “told me that he was going to 12 Although that conversation took place after Conte testified that his business had ceased operation, the ev-
get me.” ( Id.) In addition, Paul Hoppe, who became a route distributor for I Media in Oc- tober 2004, testified to a conversation with Falzarano where he “felt threatened” and “thought [he] was going to be subject to arrest if [he] continued to deliver the magazine or even speak to Mr. Conte.” ( Id. at 210.) Moreover, defendant Wallace testified that he spoke to attorney Joseph Giaimo about a civil class action being filed against Conte, Giaimo sent a copy of the complaint to Wal- lace in September 2006, and the phrase “Ponzi scheme” may have come up during their conversation. 12
(Id. at 573–75, 603; Ex. 162.)
In short, plaintiff’s presentation of evi- dence was focused on showing that defend- ants were conducting their “own investiga- tion” in bad faith to “harass and destroy” plaintiff’s business , rather than to legiti- mately investigate an alleged crime. Ro- drigues, 602 N.Y.S.2d at 340, 342. The ver- dict and damages award, moreover, indicates that, based upon the evidence presented, the jury did not believe the investigation was le- gitimate. The jury was instructed that it could impose punitive damages if it found “that the acts or omissions of the defendant were done maliciously or wantonly,” with “maliciously” defined to mean “prompted by ill will or spite toward the injured person.” (Tr. at 1345; see also id. at 1350 (applying same definition to tortious interference claim).) The verdict awarding punitive damages on the tortious interference claim, then, can reasonably be read as a factual finding by the jury that de- fendants’ actions were “prompted by ill will or spite” toward the plaintiff. ( Id. at 1345, 1350.) Construing the evidence most favora- bly to plaintiff, a rational jury could have found in plaintiff’s favor on this issue and there is no basis to disturb the verdict on this idence could still be relevant on the issue of the moti- vation of the defendants in connection with the inves- tigation.
ground. Thus, on the governmental immun- ity issue, the jury verdict is not “wholly with- out legal support,” and no manifest injustice results from this Court’s refusal to consider that argument on the merits. Patsy’ s, 658 F.3d at 271; see also Provost, 262 F.3d at 162.
In addition, had defendants specifically alerted plaintiff to their state law immunity arguments in their Rule 50(a) motion, “it may be that [plaintiff] would have been able to present additional evidence” on that issue. Rivera, 594 F. App’x at 6. For ex ample, in his supplemental submission to this Court, plaintiff attaches a declaration from attorney Joseph Giaimo, who represented a number of the route distributors in the class action against Conte and sought information from defendant Wallace before filing the class ac- tion. In the declaration, Giaimo states, inter alia, that Wallace told him that, with respect to the criminal investigation of Mr. Conte and I Media, “that evidence was being presented to a grand jury” ( Pl.’s Mem. Law in Opp’ n to Defs.’ Suppl . Mem. Law and Rule 50(b) Mot. (“Pl.’s Suppl . Br.”) , Ex. A (“ Giaimo Decl.” ), ECF No. 709, at ¶ 4), which would have con- tradicted Wallace’s trial testimony that no ev- idence was presented to the grand jury (Tr. 550). Thus, if defendants had specifically raised the governmental immunity argument at the close of plaintiff’s c ase, Conte could have sought to re-open his case to call Giaimo or present additional evidence on the “bad faith” issue (such as the testimony of other route distributors contacted by Falzarano or Wallace) to attempt to overcome that motion.
In sum, this Court “cannot find manifest injustice” on the grounds of defendants’ waived governmental immunity argument. Rivera, 594 F. App’x at 6; see also Welch, 871 F. Supp. 2d at 178 (reviewing waived Rule 50(b) argument is appropriate where
“there is no need for addi tional fact-find- ing”) , and, in any event, the motion would fail on the merits.
2. Sufficiency of the Evidence Defendants next argue that, even assum- ing they did not properly preserve their suffi- ciency of the evidence arguments, the Court should grant their motion to prevent manifest injustice. Under New York law, to establish a tortious interference with contact claim, a plaintiff must prove (1) the existence of a valid contract, (2) the defendants’ knowledge of the contract’ s existence, (3) that the de- fendant intentionally procured a breach of the contract, and (4) that it resulted in damages to the plaintiff. See Int’l Minerals & Res., S.A. v. Pappas, 96 F.3d 586, 595 (2d Cir. 1996); Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (N.Y. 1996). De- fendants now argue that plaintiff failed to present sufficient evidence to prove these el- ements, specifically (1) the existence of a valid contract, (2) conduct amounting to tor- tious interference, (3) a breach or causation thereof, and (4) damages. To the extent they argue that the jury’s findings with respect to these elements were wholly without support in the record, the Court disagrees. Moreover, with respect to the purported deficiencies that are the focus of defendants’ post -trial motion, plaintiff could have sought to address them, if they had been specifically raised at the close of the plaintiff’s case, with additional evidence or with legal applications to the Court. Thus, no manifest injustice will result if this Court refuses to grant JMOL on the ba- sis of those deficiencies. Conte’s theory of the case was that the de- fendants maliciously interfered with his con- tractual relationships with printers, route dis- tributors, and advertisers to destroy his busi- ness by making false and baseless allegations that he was engaged in a fraudulent scheme,
and such interference resulted in the termina- tion of contracts with him and the destruction of his business. In connection with that the- ory of the case, as summarized below, Conte submitted evidence on each of the essential elements of a tortious interference claim. With respect to the formation and termi- nation of contracts, Conte testified to the fol- lowing facts, among others: (1) he had signed 20–30 route distributor contracts in May/June 2003 (Tr. at 70), which increased to about 30–40 route distributor contracts by October 2003 (id. at 114); (2) when allegations of fraud surfaced in 2003, his business was sub- stantially disrupted by termination of con- tracts by a number of route distributors (id.); (3) after obtaining a printing contract with Quebecor in January 2014 (id. at 128–29, 775–76; Pl.’s Ex . 51), he was able to execute contracts with 15–20 new distributors (Tr. at 115–16; 192–95); (4) Quebecor suddenly stopped dealing with him in 2004 (id. at 129– 30), and he began having problems with route distributors terminating the agreements with him because they believed I Media was a scam (id. 138); (5) by about April 2004, only 6–8 distributors, out of the 40–50 with whom he had agreements, were still willing to do business with him (id.); (6) he proceeded to rebuild his business in fall 2004 (id. at 143– 44); (7) Transcontinental Printing entered into an agreement in December 2004 with I Media, but then refused to do business with it (id. at 147–48; Pl.’s Ex. 109); (8) in spring 2005, route distributors were telling Conte that he is a fraud (Tr. at 197–98); and (9) by June 2005, I Media was “pretty much dead in the water” ( id. at 203). In terms of eviden- tiary support of his testimony, Conte submit- ted into evidence (without objection) a sum- mary chart (Pl.’s Ex. 104), which he testified contained a list of 72 route distributors with whom he had agreements and the amounts 13 At trial, this list was mistakenly identified as Plain- tiff’ s Exhibit 50, but a review of the record revealed
they paid (id. at 169, 194–95). Conte also in- troduced into evidence (without objection), the documentation that formed the basis of that summary chart. (Pl.’s Ex. 200; 196–97.) In addition, Conte submitted the following documents: (1) a standard home distributor agreement (Pl.’s Ex. 28); (2) documents from Quebecor (Pl.’s Ex. 51); and (3) a copy of a printer’s agreement with Transcontinental Printers in December 2004 (Pl.’s Ex. 109; Tr. at 147). With respect to conduct amounting to in- terference with his contracts by the Nassau County District Attorney’s Office, Conte pre- sented the following evidence: (1) evidence regarding 21 letters that were sent by the Dis- trict Attorney’s Office to route distributors in February 2004 (Tr. at 139–40; Pl.’s Ex. 5); (2) a letter from the Nassau County District Attorney’s Office to Quebecor on April 27, 2004 (Tr. at 142–43; Pl.’s Ex. 86); and (3) a March 2005 document from William Wallace indicating a list of 28 victims as of October 13, 2004, and monetary amounts after their names (Tr. at 162–63; Pl.’s Ex. 151). 13
Conte also testified that, when Investigator Fal- zarano was serving a subpoena on Conte in April 2005, he squeezed Conte’s hand “in a crushing manner” and told Conte he was “go- ing to get [him].” ( Tr. at 155.) Conte also called Paul Hoppe, who be- came a route distributor for I Media in Octo- ber 2004. (Id. at 206). Hoppe testified that defendant Falzarano contacted him in Febru- ary 2005 and said that he was investigating I Media and Conte, “ that the business was fraudulently run, [and] that Anthony Conte was a scam artist.” ( Id. at 209–10.) Hoppe further testified that Falzarano made a joking statement that, the next time Hoppe would see Conte, he, Conte, would be in handcuffs. (Id. at 210.) Moreover, Falzarano told Hoppe that it was actually marked and entered as Exhibit 151.
that, if he spoke to Conte about their conver- sation, “it would be hindering a prosecution or investigation, and that [Hoppe] could be subject to arrest.” ( Id.) Hoppe testified that, as a result of that conversation, he “felt threatened” and “thought [he] was going to be subject to arrest if [he] continued to deliver the magazine or even speak to Mr. Conte.” (Id.) Hoppe also testified that Falzarano asked for the names of other distributors, and that Hoppe provided him with several names. (Id. at 211.) Mr. Hoppe further stated that he had conversations with other distributors about these allegations by Falzarano. (Id. at 213.) Hoppe continued his relationship with I Media until April 2005, when there were no longer any magazines to deliver. (Id. at 223.) With respect to the personal involvement and knowledge of defendant Wallace, Conte established through the testimony of Wallace that: (1) he was assigned the Conte investiga- tion in March 2004, and defendant Falzarano assisted in the investigation (id. at 512–13); (2) at some point, he became aware that de- fendant Wasilausky had sent out letters to the route distributors requesting information about I Media (id. at 534); (3) in or about March or April 2004, Wallace contacted Ga- briel Sauro of Quebecor, a printing company in Canada, and told Sauro that his office was conducting an investigation of I Media and Conte and wanted information about their business relationship (id. at 534–35; Pl.’s Ex. 86); (4) in particular, Wallace told Sauro “that we were co nducting an investigation that had to do with numerous complaints we had received alleging possible fraud with re- spect to the sale of distribution routes” ( Tr. at 537); (5) Wallace knew that Conte was trying to get Quebecor to print for his firm, I Media (id. at 540, 546; Pl.’s Ex. 16); (6) Wallace in- dicated that, when he spoke to people in the investigation, he did not indicate Conte was a fraud, but rather “indicated to people that there were allegations of fraud and that we
were conducting an investigation of these al- legations” (Tr. at 546–47); (7) Wallace spoke to Stuart Hubbard of Transcontinental in May 2004 regarding I Media and Conte (id. at 550; Pl.’s Ex. 129); (8) Transcontinental cancelled the printing job with I Media in December 2004, stating it did not have “press time” (Tr. at 555); (9) Wallace sent a list of 28 victims to Conte’s attorney in March 2005 (Tr. 562– 63; Pl.’s Ex. 151); (10) Wallace spoke to at- torney Giaimo about a civil class action being filed against Conte, Giaimo sent a copy of the complaint to Wallace in September 2006, and the phrase “Ponzi scheme” may have come up during the conversation (Tr. at 573–75, 603; Pl.’s Ex. 162); (11) the main claim in that lawsuit was that the defendant Conte “created a pyramid scheme by utili zing le- gally dissolved nonexisting corporations” (Tr. at 865; see also Pl.’s Ex. 162); and (12) Wallace knew that Investigator Falzarano had spoken to Mr. Hoppe (Tr. at 577). With respect to the personal involvement and knowledge of defendant Emmons, Conte established the following: (1) Emmons, as Chief of the Frauds Bureau, had conversa- tions with Falzarano and Wallace regarding the investigation, and supervised the investi- gative efforts (id. at 361–63, 378–82); Em- mons told Wallace to contact the printing companies to determine if, in fact, any print- ing was being done by I Media (id. at 534– 35); (2) Emmons made other suggestions to Wallace regarding investigative avenues to pursue (id. at 589–91; Def s.’ Ex. 7); and (3) Wallace sent a memo to Emmons in August 2006, advising that, “[t]he attempts by the ac- cused to enter into the agreements with TV listing companies and printers and the actual productions, delivery of the magazine lend at least some support to his position that TV Time and I Media were a legitimate, ongoing business and not a scam,” and recommending the investigation be closed (Tr. at 422–23; Pl.’s Ex. 36).
With respect to damages, Conte testified that the alleged interference by defendants with his printers caused him to have difficul- ties printing and disseminating TV Time Magazine, and affected his business opera- tions. For example, Conte testified that, when Transcontinental ceased doing business with him in late 2004, he was unable to print three or four critical issues of the magazine during the holiday season. (Tr. at 834–35.) Nevertheless, he continued to publish into April 2005. (Id. at 837– 38.) In addition to impacting his ability to obtain printers for his publication, Conte also testified that the al- leged rumors about his company being a fraud crippled his ability to maintain or add new route distributors. (Id. at 838.) Thus, he testified that he was forced to effectively cease operations by June 2005. (Id. at 203– 04.) In terms of quantifying the monies he lost from the alleged interference, Conte tes- tified he suffered losses “well over a million dollars” in terms of money that h e had in- vested into I Media. (Id. at 232.) Specifi- cally, Conte noted that he had made over $1 million in revenues from the sale of route dis- tributors and that all that money was put back into I Media and lost when the company was forced to shut down. (Id. at 842–43.) To doc- ument those losses, Conte submitted a sum- mary chart which included, among other things, a list of route distributors and the monies obtained from each. (Id. at 859–62; Pl.’s Exs. 164, 201.) During the damages phase of the trial, Conte submitted additional testimony and documents setting forth that he had entered 154 contracts between October 2004 and May 2005, and that I Media re- ceived a total of $1,090,772.80 from those contracts. (Tr. at 1255–57; Pl.’s Ex. 104.) Conte testified that he lost all of that income, which he devoted to create circulation for his magazine, attract advertisers, and move the business forward. (Tr. at 1257.) In addition, Conte testified as to substantial emotional
distress that he suffered from the alleged in- terference, including the allegations of fraud. (See, e.g., id. at 1263 (“Because of this, I re- ceived many phone calls, harassing phone calls, threatening phone calls, from route dis- tributors who were angry and upset that I had stolen money. I was treated like a leper by my business associates, and friend[s] and neighbors didn’t want to talk to me anymore and to this day want nothing to do with me.”); id. at 1264–65 (discussing severe anxiety and depression from loss of his personal and busi- ness reputation); id. at 1266 (“The acts of the defendants, that became published in the newspapers and online. It destroyed my busi- ness reputation among my business associ- ates, who will not talk to me.”); id. at 1268 (“[B]ecause of the tortious interference with respect to the contract that took place, as I stated, my business reputation was destroyed both among my business associates as well as my route distributors and iMedia’s vendors . To this day, they refuse to do business with me or return my calls.”).) Based upon the above-referenced evi- dence, as well as the other evidence adduced at trial, assuming all credibility issues were resolved in plaintiff’s favor and all reasona- ble inferences were drawn in his favor, see Arlio, 474 F.3d at 5, it is clear that there is no basis to conclude, as is required under the manifest injustice standard, that there is no legal support for plaintiff’s claim, see Patsy’ s, 658 F.3d at 271; Russo, 672 F.2d at 1022; Lore, 670 F.3d at 154; Cordius Trust, 331 F. App’ x at 811; Kirsch, 148 F.3d at 164; Reichman, 818 F.2d at 281. Moreover, as noted above, the Second Circuit has made clear that a court “cannot find manifest injustice . . . where, had De- fendants properly raised [an] issue at trial, it may be that Plaintiffs would have been able to present additional evidence” on that issue. Rivera, 594 F. App’ x at 6 (quoting Kirsch, 148 F.3d at 165) (brackets omitted). This rule
also proves dispositive on defendants’ waived sufficiency of the evidence argu- ments. Indeed, this case demonstrates why the Second Circuit has embraced this ap- proach. Defendants could have raised all of their sufficiency of the evidence arguments before the case was submitted to the jury, but they failed to do so, and now they “proffer no reason for [this] failure.” Johns -Manville, 759 F.3d at 219 (quoting Nortel Net- works, 539 F.3d at 133 (brackets omitted)). Had defendants alerted plaintiff to these ar- guments, he “would have been able to present additional evidence” on the issues they now raise, Rivera, 594 F. App’x at 6, or taken other legal steps that could have “cure[d] the defects in proof” that defendants belatedly identify, Galdieri-Ambrosini, 136 F.3d at 286. As the Second Circuit has emphasized,
We have previously stated that the specificity requirement is obligatory and that its purpose is to ensure that the other party is made aware of any deficiencies in proof that may have been overlooked. Requiring a party to state specific grounds for its Rule 50(a) motion puts a party on notice of potential deficiencies in its proof be- fore the case is submitted to the jury. Holmes v. United States, 85 F.3d 956, 962 (2d Cir. 1996) (citations and brackets omitted); see also Oliveras, 431 F.2d at 816 (“‘ At the time that a motion for a directed verdict is permitted, it remains possible for the party against who the motion is directed to cure the defects in proof that might otherwise pre- clude him from taking the case to the jury. A motion for judgment n.o.v., without prior no- tice of alleged deficiencies of proof, comes too late for the possibility of cure except by way of a complete new trial. The require- ment of the motion for directed verdict is thus in keeping with the spirit of the rules to avoid tactical victories at the expense of substantive interests.’” (quoting 5 Moore, Fed. Practice,
50.08 at 2359)); Waters v. Young, 100 F.3d 1437, 1441 (9th Cir. 1996) (“‘ In no event, however, should the court enter judgment against a party who has not been apprised of the materiality of the dispositive fact and been afforded an opportunity to present any available evidence bearing on that fact.’” (quoting Fed. R. Civ. P. 50 Advisory Com- mittee’s Note to 1991 Amendment )); Villara v. City of Yonkers Police Dep’t , No. 95 CIV. 10654 (JSR), 1997 WL 399660, at *1 (S.D.N.Y. July 15, 1997) (“[B]asic principles of judicial economy require a party to raise issues of this kind in a Rule 50(a) motion, be- fore a case is submitted to the jury, so that a Court has the opportunity to correct any ma- terial oversights at that time.”) . Although defendants now raise several post-trial deficiencies to plaintiff’s proof, none of those purported deficiencies were necessarily fatal and could have been ad- dressed by plaintiff if they had been timely and specifically raised by defendants under Rule 50 at the trial. Indeed, several of plain- tiff’s responses to defendants’ new argu- ments in his opposition to their Rule 50(b) motion raise factual issues that the jury could have resolved. See Conte I, 596 F. App’x at 6 (holding that “defendants were not entitled to have the district court decide these facts in the first instance”); Bennett v. Britton , 609 F. App’x 11, 13 (2d Cir. 2015) (“[T]he district court’s justification for granting judgment as a matter of law—holding Bennett to his testi- mony and making a factual finding that it was inaccurate—was erroneous. Factual find- ings, such as where and how an injury oc- curred, are for juries.”); see also Zellner, 494 F.3d at 368; Kerman v. City of N.Y., 374 F.3d 93, 120 (2d Cir. 2004). First, defendants pointed out that the trial evidence established that I Media had been dissolved at the time the contracts at issue were formed (see Tr. at 703 (plaintiff ac-
knowledging that his company had been dis- solved in December 2003), and dissolved corporations cannot enter into valid contracts under New York law, see Moran Enters., Inc. v. Hurst, 66 A.D.3d 972, 975 (N.Y. App. Div. 2009) (citing N.Y. Bus. Corp. Law § 1005(a)(1)). Indeed, in a footnote, this Court agreed with defendants on this point in its July 2013 Order, although the Court did not consider the waiver issue that is presented by the pending motion papers. (See July 2013 Order at 29 n.36.) As a threshold mat- ter, Conte contests that the company was dis- solved in accordance with proper procedure under New York State law and requests an evidentiary hearing on that issue. In partic- ular, plaintiff contends that the dissolution proclamation was invalid under New York law because the Secretary of State failed to timely publish it. (Pl.’s Suppl . Br. at 45– 46). 14
In any event, even assuming arguendo that the dissolution was proper, Conte could have addressed this issue in two different ways during the trial if it had been properly 14 Under New York Tax Law Section 203-a, the tax commission may send a list to the Department of State identifying any corporations that are delinquent in their taxes. N.Y. Tax Law § 203-a(1). Upon receiving the notification,
[t]he secretary of state shall make a procla- mation under his hand and seal of office, as to the corporations whose names are included in such list as finally corrected, declaring such corporations dissolved and their charters forfeited pursuant to the provisions of this section. He shall file the original proclama- tion in his office and shall publish a copy thereof in the state bulletin no later than three months following receipt of the list by him. Id. § 203-a(3). It is only “[u]pon the publication of such proclamation” that the corporation “shall be deemed dissolved without further legal proceedings.” Id. § 203-a(4). 15 Defendants raised the dissolution issue for the first time in a motion for reconsideration on the summary
raised by defendants in a Rule 50 motion. 15 First, it is well settled under New York law that, if back taxes are paid by the company and the company is re-instated, transactions during the dissolution period may be retroac- tively validated and enforceable by the com- pany. See, e.g., St. James Construction Corp. v. Long, 253 A.D.2d 754, 755 (N.Y. App. Div. 1998) (“[C] ourts have held that corpo- rate transactions which occurred during a pe- riod of dissolution are retroactively validated because the corporation’s status, and its cor- responding powers, rights, duties, and obliga- tions, have been reinstated nunc pro tunc. The ability to sue is among those rights to which a corporation with active status may avail itself.” (citations omitted)); Lorisa Cap- ital Corp. v. Gallo, 119 A.D.2d 99, 113 (N.Y. App. Div. 1986) (“We note that should Lorisa pay its back taxes as it offered to do in its pa- pers at Special Term, and, thus, be reinstated to de jure status nunc pro tunc, its contract entered into during the period of delinquency would be retroactively validated.”); see also S&J Mechanical Corp. v. IDI Construction Co., 15 Misc. 3d 1106(A), at *2–3 ( N.Y. Sup. judgment motion, which was procedurally improper. Moreover, although defendants’ counsel elicited testi- mony regarding the dissolution and made arguments to the jury regarding that issue in summation, it was in the context of questioning Conte’s credibility, not making any legal argument regarding the impact of dissolution on the validity of the contracts. (See, e.g., Tr. 701– 13; 1000– 04; see also id. at 1078 (during sum- mation of defendants’ counsel, noting, “Now, Mr. Conte acknowledges there is no such thing as iMedia Corporation after December of 2003. But we went on into 2004, and we went on to 2005, and he still held himself out to be the vice-president of iMedia Corpo- ration. But wait. Mr. Conte offered an explanation. He said those corporation attorneys, those attorneys who incorporated my business never told me that the corporation no longer existed.”).) In other words, the suggestion was that Conte was involved in a scam be- cause his company was dissolved. At no point during the trial did defendants’ counsel make an argument to the jury, or request an instruction, regarding the inabil- ity to enforce a contract for a dissolved company.
Ct. 2007) (giving plaintiff an opportunity to pay back taxes and have company reinstated in order to overcome affirmative defense that contract had been entered when the company was dissolved). Second, during the trial, Conte could also have sought to amend his pleadings to conform to the proof. In partic- ular, Conte could have sought to amend to modify his claim to tortious interference with business relations, which would not have re- quired proof of a valid contract. 16
See, e.g., Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 837–38 (2d Cir. 1980) (considering tort claim for interference with business relations where no interference with contract claim existed because contract was void); Catskill Development, L.L.C. v. Park Place Entertainment Corp., 547 F.3d 115, 132–37 (2d Cir. 2008) (same); see also Polo Fashions, Inc. v. Fashion Assocs., Inc., No. 82 Civ. 4870 (CBM), 1986 WL 1176, at *2 (S.D.N.Y. Jan. 22, 1986) (“Third- party plain- tiffs are correct in their assertion that a con- tract need not exist in order for the tort of in- terference with prospective economic ad- vantage to lie.”) . Because these issues were not properly raised under Rule 50 during the trial by defendants, however, neither Conte 16 The Court notes that plaintiff did seek to add such a new claim during the trial. (Tr. at 786– 90.) In the Court’s view, however, that request was not directed at addressing this purported defect as to the route dis- tributors and printers that were the centerpiece of the trial, but rather would open up the case to any potential business relationship that Conte sought during his company’s existence. Because the Court believed al- lowing a claim based upon new potential business re- lationships (such as with certain advertisers) would be prejudicial, the Court denied the motion. (Id. at 882– 86.) If, however, it was made clear to the Court that the amendment related only to the route distributors and printers who had always been the core part of plaintiff’s case, and was necessary to address thi s spe- cific legal objection by defendants regarding the valid- ity of the contracts in a Rule 50 motion, such an amendment would have been warranted in the Court’s discretion under Rule 15(b)(1). Such an amendment would also have been able to address the defendants’ post-trial argument that there was no interference with
nor the Court had the ability to consider how these issues could have been addressed by plaintiff. The same is true concerning defendants’ waived arguments that the evidence was in- sufficient to prove conduct amounting to tor- tious interference. (Pl.’s Suppl . Br. at 47– 48.) Specifically, plaintiff has submitted an affidavit from Giaimo in which Giaimo as- serts that the claims of fraud underlying his lawsuit on behalf of the route distributors originated in the Nassau County District At- torney’s Office and that he initiated the class action lawsuit against plaintiff after speaking with Wallace, which contradicts Wallace’s testimony. 17
(Giaimo Declaration ¶¶ 3–5; see also Tr. at 573–74 ( Wallace testifying that he “didn’t even know of Mr. Giaimo’s existence until he had already filed his suit in civil court”). ) Had defendants alerted plaintiff to their arguments, he could have called Giaimo to establish the timing of his conversation with Wallace, as well as the content of their conversation. Giaimo could also have poten- tially shed light on whether any route distrib- utors breached their contracts as a result of
the route distributors because Conte received their money, and no interference with certain printers be- cause there was no actual contract. In other words, Conte could have argued more generally that his on- going business relationships with the printers and route distributors were interfered with, and destroyed, whether or not there was an actual breach of an exist- ing contract. 17 This Court does not consider Giaimo’s affidavit on the merits of the insufficiency of the evidence argu- ments. That is, in its discussion of defendants’ suffi- ciency of the evidence arguments above, the Court did not take into account Giaimo’s post- trial statements. Instead, the Court merely cites this affidavit as proof that, had defendants raised their sufficiency of the ev- idence arguments at trial, plaintiff could have offered specific evidence “ to cure the defects in proof” that de- fendants now identify. Galdieri-Ambrosini, 136 F.3d at 286.
conversations with the Nassau District Attor- ney’s Office. In particular, in his declaration, Giaimo notes:
On July 5, 2005, I attended a meeting at a restaurant on Long Island and met a number of people, mostly I Media route distributors, many of whom be- came plaintiffs in the Amorizzo case. At that meeting I heard allegations of fraud concerning Mr. Conte and I Me- dia. Several participants said they had spoken to members of the Nassau County District Attorney’s Office where they claimed those fraud alle- gations originated. (Giaimo Declaration ¶ 3.) Although that tes- timony would have raised hearsay issues, Conte could have used that testimony to iden- tify other route distributors that could have been called as additional witnesses to address this alleged defect. Thus, at the very least, Giaimo’s post -trial affidavit demonstrates that plaintiff could have presented additional evidence to dispute defendants’ waived argu- ments had they timely raised them. Similarly, with respect to the other grounds for plaintiff’s tortious interference claim, plaintiff might have presented addi- tional evidence to correct the deficiencies the defendants identify post-trial. For example, defendants suggest that there was no evi- dence of conduct constituting interference because, even if the interaction with Paul Hoppe was attempted interference, there was no evidence that Hoppe stopped dealing with Conte, and this was the “single instance of a route distributor, Hoppe, being approached by Falzarano.” (Defs.’ Suppl. B r. at 19.) 18 The Court notes that, during the charge conference on the damages instructions, no objection was made to allowing the jury to consider emotional distress dam- ages on the interference with contract claim. (Tr. 1219– 38.) In fact, defendants’ brief regarding dam- ages cites the relevant case authority. (ECF No. 584.)
However, Hoppe testified that Falzarano asked him for the names of other distributors, which he provided. (Tr. at 211.) Hoppe also had his own conversations with other distrib- utors about this interaction. (Id. at 213.) Moreover, Falzarano testified that, although he could not remember the exact number, he spoke to several route distributors. (Id. at 298–99.) If the jury believed Mr. Hoppe’s testimony, it would not have been unreason- able for them to draw an inference from all the evidence in this case that Falzarano had similar conversations with many route dis- tributors, and that Falzarano could reasona- bly foresee his allegations being shared among many route distributors. In any event, if plaintiff needed to show other conduct con- stituting tortious interference to overcome this argument, plaintiff could have called the printers, advertisers, and route distributors to testify as to their conversations with defend- ants. Likewise, to show breach and causa- tion, these witnesses could have testified as to when and why they repudiated their con- tracts. Finally, with respect to damages, plaintiff could have attempted to submit additional ev- idence on how the defendants’ interference deprived him of the benefit of the contracts with his route distributors and printers. Moreover, some of the damages awarded by the jury also could have related to emotional distress damages, which are recoverable in certain circumstances for a tortious interfer- ence claim under New York law. 18
See. Pap- pas, 96 F.3d at 597 (“With respect to dam- ages, [o]ne who is liable to another for inter- ference with a contract or prospective con- tractual relation is liable for damages for (a)
To the extent defendants challenge the amount of dam- ages as excessive or against the weight of the evidence, that type of motion is available under Rule 59 of the Federal Rules of Civil Procedure. Although defend- ants initially made such a motion, they subsequently abandoned it.
the pecuniary loss of the benefits of the con- tract or the prospective relation; (b) conse- quential losses for which the interference is a legal cause; and (c) emotional distress or ac- tual harm to reputation, if they are reasonably expected to result from the interference.” (ci- tations omitted)); see also GS Plasticos Lim- itada v. Bureau Veritas, 37 Misc.3d 1228(A), at *3 (N.Y. Sup. Ct. 2012) (“[T]hat GS seeks consequential damages resulting from harm to its reputation – as permitted in connection with a claim for tortious interference with contract – is insufficient to transform GS’s tortious interference claim into a defamation claim.” (citing Guard Life Corp. v. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 197 (N.Y. 1980))). In short, had defendants alerted plaintiff to the defects in proof they now identify, he may have been able to cure them. As noted, moreover, the entire purpose of Rule 50(a)’ s specificity requirement “ is to give the other party an opportunity to cure the defects in proof that might otherwise preclude him from taking the case to the jury.” Galdieri -Am- brosini, 136 F.3d at 286 (quoting Baskin, 807 F.2d at 1134). Thus, in this case, to grant de- fendants’ Rule 50 motion or afford them a new trial on the basis of the waived argu- ments, see Russo, 672 F.2d at 1022, would undermine the purpose of Rule 50(a), see Kirsch, 148 F.3d at 165; Rivera, 594 F. App’x at 6; Galdieri-Ambrosini, 136 F.3d at 286. As such, the Court “ cannot find manifest in- justice” here and therefore declines to exer- cise its discretion to grant the motion based on the waived arguments. Rivera, 594 F. App’ x at 6 (quoting Kirsch, 148 F.3d at 165).
IV. CONCLUSION In sum, the Court concludes that (1) de- fendants waived their governmental immun- ity and insufficiency of the evidence argu- ments by failing to raise them with specificity
in their Rule 50(a) motion, and (2) no mani- fest injustice will result if this Court declines to grant them JMOL or a new trial on the ba- sis of those arguments. Therefore, the Court denies defendants’ Rule 50 motion in its en- tirety. SO ORDERED.
______________________ JOSEPH F. BIANCO United States District Judge
Dated: March 3, 2017 Central Islip, NY
* * * Plaintiff is proceeding pro se. Defendants are represented by Andrew Reginald Scott and Sondra Meryl Toscano of the Nassau County Attorney’s Office, 1 W est Street, Mineola, N.Y. 11501, as well as Eliza Mae Scheibel and Robert A. Spolzino of Wilson Elser Mos- kowitz Edelman & Dicker, LLP, 1133 Westchester Avenue, 3rd Floor, West Harri- son, NY 10604.