[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit
No. 98-1552
RAMON A. TANON,
Plaintiff, Appellee,
v.
PALADIN PRODUCTS, INC., ET AL.,
Defendants,
KENNY O'CONNELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
Thomas C. Jennings III for appellant. Sigfredo A. Irizarry-Semidei on brief for appellee.
April 29, 1999
SELYA, Circuit Judge. This appeal trails in the wake of a capsized commercial transaction. In the underlying litigation, brought pursuant to diversity jurisdiction, 28 U.S.C. 1332(a) (1994), Ramon A. Tan sued Paladin Products, Inc. (Paladin), a printing equipment vendor, and its principal, appellant Kenny O'Connell. In his amended complaint, Tan claimed that Paladin, through O'Connell, convinced him to order $167,500 worth of equipment, accepted a $75,000 deposit, failed to deliver the goods within a reasonable time, and reneged on a promise to rescind the transaction and refund his money. As to O'Connell, Tan claimed that, as Paladin's president and sole shareholder, he was the company's alter ego (and, thus, personally answerable for its dereliction), and that he was guilty of negligent misrepresentation which proximately caused Tan's losses. Paladin and O'Connell defended the suit on substantive grounds, and O'Connell also moved to dismiss for want of in personam jurisdiction. The parties consented to trial before a magistrate judge. See 28 U.S.C. 636(c); Fed. R. Civ. P. 73(b). The magistrate bifurcated the case, severing the claims against the two defendants. In the first trial, a jury found Paladin liable for breach of contract and awarded Tan $96,000. At a hearing on Paladin's unsuccessful post-trial motion for judgment as a matter of law, the magistrate addressed O'Connell's pending motion to dismiss and, although he found that personal jurisdiction existed, he dismissed Tan's claim against O'Connell sua sponte because Tan had not produced evidence sufficient to show that O'Connell was Paladin's alter ego. On appeal, we affirmed the judgment against Paladin, but vacated the judgment in O'Connell's favor on a purely procedural ground, holding that the magistrate had not given any forewarning of his intention to exceed the bounds of the pending motion and reach the issue of O'Connell's substantive liability. We concluded that, as a result, "Tan was never afforded an adequate opportunity to put his best foot forward and muster his evidence on the dispositive point." Tan v. Paladin Prods., Inc., Nos. 96-2059, 96-2060, slip op. at 7 (1st Cir. Oct. 3, 1997) (unpublished) (Tan I). The magistrate convened a second trial, limited to Tan's claims against O'Connell. The jury returned a general verdict in Tan's favor and the court entered judgment for $96,000. O'Connell now appeals. In a brief that charitably can be called discursive, he makes a plethora of arguments. They boil down to three main points. We address each in turn. 1. O'Connell contends that, under the mandate rule, the magistrate erred in permitting the issue of negligent misrepresentation to go to the jury. In the large, the mandate rule provides that lower courts must comply with the instructions of a higher court's remand order. See Field v. Mans, 157 F.3d 35, 40 (1st Cir. 1998); United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993). This means, of course, that courts ordinarily may not reopen issues that have been decided or foreclosed by a superior tribunal. Along these lines, O'Connell contends that our opinion in Tan I had the effect of limiting the subsequent trial to the alter ego issue (to the exclusion of the negligence issue). This contention is premised upon a gross misreading of our earlier opinion. To be sure, in Tan I we referred only to the alter ego claim but that was because the magistrate had focused exclusively on that claim. Our concern, however, was not with Tan's substantive theories of recovery, but, rather, with whether the sua sponte dismissal deprived Tan of a fair chance to adduce evidence of O'Connell's liability under any properly pleaded theory. For this reason we stressed that our emphasis was "procedural," Tan I, slip op. at 6, and, in remanding, we did not in any way restrain the lower court from airing any or all of the claims against O'Connell that Tan had raised in his amended complaint, see id. at 9 (ordering the lower court to conduct "further proceedings consistent with this opinion"). To be faithful to that mandate, the magistrate, on remand, had an obligation to afford Tan a full and fair opportunity to prove all the allegations contained in his amended complaint (including the allegations of negligence). The magistrate followed this course precisely. The assignment of error therefore fails. 2. In a related vein, Tan challenges the jury instructions and the admission of evidence insofar as those rulings relate to the negligence issue. For the most part, these challenges are bound up in O'Connell's claim that the issue of negligence did not belong in the case. To that extent, the challenges lack force. See supra. Although this circumstance does not entirely close the door, it narrows the aperture considerably. Fed. R. Civ. P. 51 completes the task. Rule 51 provides that, as a necessary predicate for assigning error to a jury instruction, an appellant must object before the jury retires, state distinctly the matter objected to, and limn the grounds of the objection. In this case, the appellant made only a general objection to the giving of any negligence instruction. Under the rule, therefore, the appellant has forfeited the right to press other or different objections to the charge. See Elliott v. S.D. Warren Co., 134 F.3d 1, 5-6 (1st Cir. 1998); La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689, 691- 92 (1st Cir. 1991). The door still remains slightly ajar. Even in the absence of a proper objection, an appellate court may review a jury instruction for plain error. See Moore v. Murphy, 47 F.3d 8, 11 (1st Cir. 1995); Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991). For three reasons, this exception is of no solace to O'Connell. First, the plain-error hurdle is high and it is at its apex in respect to claims of instructional error in civil cases. See Toscano, 934 F.2d at 385; 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2558, at 469 (2d ed. 1995) ("If there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case when the error seriously has affected the fairness, integrity, or public reputation of the trial court's proceedings.").
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[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit
No. 98-1552
RAMON A. TANON,
Plaintiff, Appellee,
v.
PALADIN PRODUCTS, INC., ET AL.,
Defendants,
KENNY O'CONNELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
Thomas C. Jennings III for appellant. Sigfredo A. Irizarry-Semidei on brief for appellee.
April 29, 1999
SELYA, Circuit Judge. This appeal trails in the wake of a capsized commercial transaction. In the underlying litigation, brought pursuant to diversity jurisdiction, 28 U.S.C. 1332(a) (1994), Ramon A. Tan sued Paladin Products, Inc. (Paladin), a printing equipment vendor, and its principal, appellant Kenny O'Connell. In his amended complaint, Tan claimed that Paladin, through O'Connell, convinced him to order $167,500 worth of equipment, accepted a $75,000 deposit, failed to deliver the goods within a reasonable time, and reneged on a promise to rescind the transaction and refund his money. As to O'Connell, Tan claimed that, as Paladin's president and sole shareholder, he was the company's alter ego (and, thus, personally answerable for its dereliction), and that he was guilty of negligent misrepresentation which proximately caused Tan's losses. Paladin and O'Connell defended the suit on substantive grounds, and O'Connell also moved to dismiss for want of in personam jurisdiction. The parties consented to trial before a magistrate judge. See 28 U.S.C. 636(c); Fed. R. Civ. P. 73(b). The magistrate bifurcated the case, severing the claims against the two defendants. In the first trial, a jury found Paladin liable for breach of contract and awarded Tan $96,000. At a hearing on Paladin's unsuccessful post-trial motion for judgment as a matter of law, the magistrate addressed O'Connell's pending motion to dismiss and, although he found that personal jurisdiction existed, he dismissed Tan's claim against O'Connell sua sponte because Tan had not produced evidence sufficient to show that O'Connell was Paladin's alter ego. On appeal, we affirmed the judgment against Paladin, but vacated the judgment in O'Connell's favor on a purely procedural ground, holding that the magistrate had not given any forewarning of his intention to exceed the bounds of the pending motion and reach the issue of O'Connell's substantive liability. We concluded that, as a result, "Tan was never afforded an adequate opportunity to put his best foot forward and muster his evidence on the dispositive point." Tan v. Paladin Prods., Inc., Nos. 96-2059, 96-2060, slip op. at 7 (1st Cir. Oct. 3, 1997) (unpublished) (Tan I). The magistrate convened a second trial, limited to Tan's claims against O'Connell. The jury returned a general verdict in Tan's favor and the court entered judgment for $96,000. O'Connell now appeals. In a brief that charitably can be called discursive, he makes a plethora of arguments. They boil down to three main points. We address each in turn. 1. O'Connell contends that, under the mandate rule, the magistrate erred in permitting the issue of negligent misrepresentation to go to the jury. In the large, the mandate rule provides that lower courts must comply with the instructions of a higher court's remand order. See Field v. Mans, 157 F.3d 35, 40 (1st Cir. 1998); United States v. Bell, 988 F.2d 247, 251 (1st Cir. 1993). This means, of course, that courts ordinarily may not reopen issues that have been decided or foreclosed by a superior tribunal. Along these lines, O'Connell contends that our opinion in Tan I had the effect of limiting the subsequent trial to the alter ego issue (to the exclusion of the negligence issue). This contention is premised upon a gross misreading of our earlier opinion. To be sure, in Tan I we referred only to the alter ego claim but that was because the magistrate had focused exclusively on that claim. Our concern, however, was not with Tan's substantive theories of recovery, but, rather, with whether the sua sponte dismissal deprived Tan of a fair chance to adduce evidence of O'Connell's liability under any properly pleaded theory. For this reason we stressed that our emphasis was "procedural," Tan I, slip op. at 6, and, in remanding, we did not in any way restrain the lower court from airing any or all of the claims against O'Connell that Tan had raised in his amended complaint, see id. at 9 (ordering the lower court to conduct "further proceedings consistent with this opinion"). To be faithful to that mandate, the magistrate, on remand, had an obligation to afford Tan a full and fair opportunity to prove all the allegations contained in his amended complaint (including the allegations of negligence). The magistrate followed this course precisely. The assignment of error therefore fails. 2. In a related vein, Tan challenges the jury instructions and the admission of evidence insofar as those rulings relate to the negligence issue. For the most part, these challenges are bound up in O'Connell's claim that the issue of negligence did not belong in the case. To that extent, the challenges lack force. See supra. Although this circumstance does not entirely close the door, it narrows the aperture considerably. Fed. R. Civ. P. 51 completes the task. Rule 51 provides that, as a necessary predicate for assigning error to a jury instruction, an appellant must object before the jury retires, state distinctly the matter objected to, and limn the grounds of the objection. In this case, the appellant made only a general objection to the giving of any negligence instruction. Under the rule, therefore, the appellant has forfeited the right to press other or different objections to the charge. See Elliott v. S.D. Warren Co., 134 F.3d 1, 5-6 (1st Cir. 1998); La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689, 691- 92 (1st Cir. 1991). The door still remains slightly ajar. Even in the absence of a proper objection, an appellate court may review a jury instruction for plain error. See Moore v. Murphy, 47 F.3d 8, 11 (1st Cir. 1995); Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991). For three reasons, this exception is of no solace to O'Connell. First, the plain-error hurdle is high and it is at its apex in respect to claims of instructional error in civil cases. See Toscano, 934 F.2d at 385; 9A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2558, at 469 (2d ed. 1995) ("If there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case when the error seriously has affected the fairness, integrity, or public reputation of the trial court's proceedings."). Second, the verdict against O'Connell seems amply justified, and justice does not appear to have miscarried. See Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 940 (1st Cir. 1995) (explaining that, to warrant setting aside a verdict, an appellant normally must show that an unpreserved instructional error "caused a miscarriage of justice or . . . undermined the integrity of the judicial process"). Last but surely not least our review of the instructions in this case reveals nothing that strikes us as error, let alone error sufficiently egregious to warrant plain-error review. 3. The appellant posits that the evidence adduced at trial is insufficient as a matter of law to sustain the verdict. The principal problem with this asseveration is that the appellant neglected to make a motion for judgment as a matter of law either at the close of the plaintiff's case in chief, or at the close of all the evidence. See Fed. R. Civ. P. 50(a). He then compounded his lapse by failing to move for judgment notwithstanding the verdict. See Fed. R. Civ. P. 50(b). When a defendant has not made a timely motion for judgment as a matter of law, the court of appeals ordinarily will not consider the legal sufficiency of the evidence. See Hammond v. T.J. Litle & Co., 82 F.3d 1166, 1171 (1st Cir. 1996); La Amiga del Pueblo, 937 F.2d at 691; Jusino v. Zayas, 875 F.2d 986, 991 (1st Cir. 1989). Of course, in La Amiga del Pueblo we acknowledged that, even absent such a motion, the court of appeals retains a modicum of residual discretion to inquire whether the record reflects a total absence of evidentiary support for the jury's verdict. See La Amiga del Pueblo, 937 F.2d at 691. Here, however, such a canvass quickly reveals that the evidence is not so lopsided as to bring this seldom-invoked discretion into play. We need go no further. Concluding, as we do, that O'Connell's appeal lacks any semblance of merit, we affirm the judgment below.
Affirmed. Costs to appellee.