Palmer v. Smith

• Court: District Court, D. New Hampshire
• Decided: March 2, 1998
• Docket: CV-95-598-SD
• Status: Published

Opinion

Palmer v. Smith CV-95-598-SD 03/02/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

B. Irene Palmer, et al.

v. Civil No. 95-598-SD

David Smith, et al.

O R D E R

This order addresses the issues raised by certain post-trial

motions. The details and background of the case is fully set

forth in the court's order of December 15, 1997, familiarity of

the reader with which is here presumed (document no. 153).

1. Plaintiffs' Motion for a New Trial, Document no. 152

This motion to which the respective defendants objected

(document nos. 156, 157, 158)1 implicitly denied by the issuance

of the order of December 15, 1997 (document no. 153).

Accordingly, only a few additional remarks are here warranted.

The thrust of the motion is that the jury answers to (such of)

the special verdicts which they answered were inconsistent and

that the jury erred in awarding different amounts of damages as

against each of the defendants. Plaintiffs further complain of

1Document #156 is the objection of the defendant David Smith. Document #157 is the objection of the defendant Bruce McCall. Document #158 is the objection of the defendant Richard Daigle. the form of some of the special verdict questions.

A motion for a new trial is addressed to the discretion of

the court and will not granted unless the verdict was so clearly

against the weight of the evidence as to amount to a manifest

miscarriage of justice. Cigna Fire Underwriters v. MacDonald &

Johnson, 86 F.3d 1260, 1263 (1st Cir. 1996); Fernandez v.

Corporacion Insular de Seguras, 79 F.3d 207, 211 (1st Cir. 1996);

Federico v. Order of St. Benedict in Rhode Island, 64 F.3d 1, 5

(1st Cir. 1995); Lama v. Borras, 16 F.3d 473, 477 (1st Cir.

1994) . And, unless the alleged error was fundamantal, a new

trial will not be granted on grounds that were not called to the

court's attention during the trial. Perez-Perez v. Popular

Leasing Rental, Inc., 993 F.2d 281, 284 (1st Cir. 1993); 11

W r i g h t , M iller & Ka n e , Federal Practice & Procedure § 2805 at 57, 58 (2d

ed. 1985). Moreover, where a claim of inconsistency in verdicts

is raised, such claim must be presented before the jury is

discharged. Kavanaugh v. Greenlee Tool Co., 944 F.2d 7, 11 (1st

Cir. 1991).

Plaintiffs here fail to comply with these requirements, and

accordingly as there is no manifest miscarriage of justice, the

motion for new trial is denied.

2 2. Plaintiffs' Motion for Reconsideration, Document no. 163

This motion seeks reconsideration of the December 15, 1997

order (document no. 153). The defendants object (document nos.

165, 167, 168) .2

Governed by Federal Rules of Civil Procedure Rule 59(e), a

motion for reconsideration requires the movant to clearly

establish a manifest error of law or fact or present newly-

discovered evidence but it does not permit the introduction of

new evidence or the advancement of arguments that could and

should have been presented to the court prior to judgment. Aybar

v. Crispin-Reves, 118 F.3d 10, 16 (1st Cir. 1997); FDIC v. World

University, Inc., 978 F.2d 10, 16 (1st Cir. 1992).3 Thus viewed,

plaintiffs' motion fails to present any argument not raised

previously, nor does it demonstrate the existence of a manifest

error of law or fact. The motion is accordingly denied.

3. Conclusion

The court has reviewed the issues raised by plaintiffs'

motion for new trial (document no. 152) and plaintiffs' motion

for reconsideration of its order of December 15, 1997 (document

2Document 165 is the objection of defendant Daigle. Document 167 is the objection of defendant Smith. Document 168 is the objection of defendant McCall.

3Rule 59(e) provides that any motion to alter or amend a judgment shall be filed no later than ten days after entry of the judgment.

3 no. 163). Finding the motions to be without legal merit, the

court has denied each of said motions.

SO ORDERED.

Shane Devine Senior Judge

March , 1998

cc: James J. Bianco Jr., Esguire Roy A. Duddy, Esguire Carl L. Hess, Esguire Doreen F. Connor, Esguire