Tian v. Newmont International Services Limited
Filing
128
ORDER denying 113 Motion for Judgment as a Matter of Law; granting in part and denying in part 114 Motion to Amend Judgment, by Judge John L. Kane on 02/18/2016.(cthom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 12-cv-02515-JLK
FANG TIAN,
Plaintiff,
v.
NEWMONT INTERNATIONAL SERVICES LIMITED, a Delaware Corporation,
Defendant.
OPINION AND ORDER ON MOTION FOR JUDGMENT AS A
MATTER OF LAW AND MOTION TO AMEND THE JUDGMENT
1. Motion for Judgment as a Matter of Law or a New Trial – Rule 50(b)
Defendant has moved for judgment as a matter of law or for a new trial under Fed. R. Civ.
P. 50(b). Doc. 113. Under Rule 50(b), a party is entitled to judgment as a matter of law “only if
the evidence points but one way and is susceptible to no reasonable inferences which may support
the opposing party's position.” E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 797 (10th Cir. 2007).
“Unless the proof is all one way or so overwhelmingly preponderant in favor of the movant as to
permit no other rational conclusion, judgment as a matter of law is improper.” Greene v. Safeway
Stores, Inc., 98 F.3d 554, 557 (10th Cir. 1996) (citation omitted). A new trial may be granted if the
“claimed error substantially and adversely” affected a party's rights. Henning v. Union Pac. R. Co.,
530 F.3d 1206, 1217 (10th Cir. 2008) (quoting Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297 (10th Cir.
1998)).
Defendant argues that it is entitled to judgment as a matter of law because the jury was not
presented with legally sufficient evidence of reliance, causation, or damages. Doc. 113 at 1.
According to Defendant, Plaintiff was told in January of 2011 that Defendant would begin
1
processing her green card in March, and did not learn that the green card process would not
actually be moving forward until July of 2011, when Defendant notified Plaintiff that her position
was being eliminated.1 Defendant argues that this caused, at best, a six-month delay in Plaintiff’s
search for a new employer to sponsor her green card, and that the evidence at trial was insufficient
to conclude that this six-month delay had any impact on Plaintiff’s ability to find a green card
sponsor before the expiration of her H1B visa. Doc. 113 at 14-18. Defendant also argues that the
damage award was speculative and uncertain, and that Plaintiff’s reliance on her supervisor’s
statements regarding her green card application was unreasonable as a matter of law. Id. at 18-21.
With respect to the issue of whether the six-month delay cost Plaintiff the opportunity to
obtain a green card, I cannot agree that “the evidence points but one way” and is “overwhelmingly
preponderant in favor” of Defendant’s position. PVNF, L.L.C., 487 F.3d at 797; Greene, 98 F.3d at
557. Plaintiff’s H1B visa was set to expire on November 2, 2012, so that in January of 2011,
Plaintiff had approximately 22 months remaining on the visa, and by July of 2011, Plaintiff had
approximately 15 months remaining. Trial Tr. 322:16-23. Both Defendant’s and Plaintiff’s
respective experts testified that the “best practice” is to begin an application for a green card 18
months before the expiration of the H1B visa. Trial Tr. at 243:8-22; 245:2-246:5; 429:12-430:5.
Plaintiff’s expert testified the process of obtaining a green card is an extensive and expensive one,
and that he will require an employer to sign a release before attempting to begin the process with
13 months left because of the risk that the process will not be completed before the employee is
forced to leave the country. Id. at 250:4-22. Defendant’s human resources representative also
1
Defendant makes much of the fact that “undisputed expert testimony established that the
application process was required by law to stop when Newmont decided to eliminate Plaintiff’s
position in July 2011.” Doc. 113 at 2. But Defendant was not required to eliminate Plaintiff’s
position, and its decision to do so does not in any way excuse the alleged breach of Defendant’s
promises and representations regarding Plaintiff’s green card application. See Doc. 40 at 26-27.
2
testified that beginning Plaintiff’s green card process in July of 2011 would have been “cutting it
pretty close.” Id. at 207:20-209:7. Finally, Plaintiff testified that she was informed by Bechtel,
who hired Plaintiff in August 2012 after she had left Newmont, that they would not sponsor her
green card due to timeliness issues because she had only 12 months remaining on her H1B visa.2
Id. at 312:19-314: 16. Although not overwhelming, this evidence is enough to permit the jury to
conclude that Newmont’s misrepresentations caused Plaintiff to lose the opportunity to find
another employer to sponsor her green card application.
Nor is the damage award “speculative and uncertain.” Doc. 113 at 18. Plaintiff presented
evidence that as a result of her failure to obtain a green card, after 12 months at Bechtel in Houston
she was forced to return to China, where she continued her employment with Bechtel and made
approximately $50,000 less per year. Trial Tr. at 316:20-317:2; 320:2-5. The testimony of
Plaintiff’s expert also indicated that Plaintiff would have an approximately one in three chance of
receiving another H1B visa each year, see Doc. 123 at 12, so that the jury could permissibly
conclude that Plaintiff would remain in China for a total of three years before being able to return
to the United States. Thus, the jury’s $150,000 award can be interpreted as consisting of $100,000
in back pay for the period August 2013 through August 2015, and $50,000 in lost wages going
forward until Plaintiff is presumably able to return to the United States. This evidence, and the
inferences therefrom, is sufficient to sustain the damages award. See Roberts v. Adams, 47 P.3d
690, 697 (Colo. App. 2001) (plaintiff claiming damages must submit “substantial evidence, which
together with reasonable inferences to be drawn therefrom provides a reasonable basis for
computation of the damage”).
Defendant’s final argument is that Plaintiff’s reliance on her supervisor’s representations
2
Defendant argues that this testimony was hearsay, but it was admitted under F.R.E. 807.
3
regarding her green card application was unreasonable. Doc. 113 at 20-21. This argument is based
on Plaintiff’s purported sophistication and her failure to undertake any investigation of the progress
of her green card application. Id. However, there was evidence at trial that Defendant’s human
resources representative would have told Plaintiff to consult her supervisor if she had asked about
the status of her green card application, Trial Tr. at 206:7-207:2, and that Plaintiff’s supervisor was
ultimately responsible for whether her application would go forward. Id. at 206:12-207:2. It was
for the jury to consider this evidence along with evidence of Plaintiff’s sophistication and lack of
investigation, and to decide whether Plaintiff’s reliance was reasonable. See Varady v. White, 595
P.2d 272, 273 (Colo. App. 1979) (“[Q]uestions of misrepresentation and reliance are questions of
fact.”).
2.
Motion to Reduce Judgment – Rule 59(e)
Defendant has also moved to reduce the amount of the judgment under Rule 59(e), arguing
that the punitive damage award does not comply with C.R.S. §13-21-102. Doc. 114 at 1. The jury
awarded Plaintiff $100,000 in damages on her negligent misrepresentation claim, $150,000 in
damages on her fraudulent misrepresentation claim, and $500,000 in punitive damages. Doc. 1023. The Court subsequently reduced the jury’s award by $100,000 on the grounds that the two
claims were based on the same facts and the damages were duplicative. See Doc. 105. The final
judgment therefore awards Plaintiff $150,000 in compensatory damages and $500,000 in punitive
damages. Defendant has moved pursuant to Fed. R. Civ. P. 59(e) to eliminate the punitive damage
award or to reduce it to $150,000, pursuant to C.R.S. §13-21-102, which provides:
(1)(a) In all civil actions in which damages are assessed by a jury for a wrong done to the
person or to personal or real property, and the injury complained of is attended by
circumstances of fraud, malice, or willful and wanton conduct, the jury, in addition to the
actual damages sustained by such party, may award him reasonable exemplary damages.
The amount of such reasonable exemplary damages shall not exceed an amount which is
equal to the amount of the actual damages awarded to the injured party.
4
(b) As used in this section, “willful and wanton conduct” means conduct purposefully
committed which the actor must have realized as dangerous, done heedlessly and
recklessly, without regard to consequences, or of the rights and safety of others, particularly
the plaintiff.
…
(2) Notwithstanding the provisions of subsection (1) of this section, the court may reduce
or disallow the award of exemplary damages to the extent that:
(a) The deterrent effect of the damages has been accomplished; or
(b) The conduct which resulted in the award has ceased; or
(c) The purpose of such damages has otherwise been served.
(3) Notwithstanding the provisions of subsection (1) of this section, the court may increase
any award of exemplary damages, to a sum not to exceed three times the amount of actual
damages, if it is shown that:
(a) The defendant has continued the behavior or repeated the action which is the subject of
the claim against the defendant in a willful and wanton manner, either against the plaintiff
or another person or persons, during the pendency of the case; or
(b) The defendant has acted in a willful and wanton manner during the pendency of the
action in a manner which has further aggravated the damages of the plaintiff when the
defendant knew or should have known such action would produce aggravation.
The parties do not dispute that C.R.S. §13-21-102 governs the punitive damages award.
Doc. 114 at 2; Doc. 122 at 3. Defendant argues that the punitive damages award should be
eliminated entirely because the evidence at trial did not establish “fraud, malice, or willful and
wanton conduct” as the misrepresentations regarding Plaintiff’s green card were an “isolated
incident” and there is “no evidence that Defendant acted maliciously or with an intent to injure” the
Plaintiff, Doc. 114 at 5, and in any event should be reduced to the amount of actual damages under
§ 13-21-102(1)(a). Doc. 114 at 6. Plaintiff argues that the Court should allow the punitive
damages award under § 13-21-102(3)(a) because Juan Pablo Reyes’ refusal to give yes or no
answers in response to certain questions at trial constitute a “continuation of the same tortious and
deceitful conduct” at issue in the case. Doc. 122 at 4. Plaintiff also argues that the evidence
establishes “willful and wanton conduct” because “Mr. Reyes deliberately misled Plaintiff on
5
multiple instances by withholding information, and by being untruthful with Plaintiff.” Doc. 122 at
6-7.
I will reduce the punitive damages award to $150,000 pursuant to C.R.S. §13-21-102(1)(a).
In making its punitive damage award, the jury expressly found that “Newmont acted in a fraudulent
manner in causing Ms. Tian’s damages,” and that “Newmont acted in a willful and/or wanton
manner in causing Ms. Tian’s damages,” Doc. 102-3 at 3-4. In addition, the jury expressly found
each of the elements of fraud. Id. at 2-3. Mr. Reyes testified that he had been through the green
card process himself, Trial Tr. at 34:2-35:15, that he was aware of the deadlines and the stakes
involved for Plaintiff, and the jury found that he nevertheless made misrepresentations to Plaintiff
regarding her green card application during the critical time frame for moving the process forward.
This satisfies the “circumstances of fraud, malice, or willful and wanton conduct” requirement of
C.R.S. §13-21-102(1)(a). See Coors v. Sec. Life of Denver Ins. Co., 112 P.3d 59, 66 (Colo. 2005)
(“Where the defendant is conscious of his conduct and the existing conditions and knew or should
have known that injury would result, the statutory requirements of section 13–21–102 are met.”).
Plaintiff also argues that the Court has discretion to allow a punitive damages award of up
to three times Plaintiff’s actual damages under C.R.S. §13-21-102(3)(a) because Mr. Reyes’
testimony at trial constituted a continuation of “the behavior . . . which is the subject of the claim
against the defendant in a willful and wanton manner, either against the plaintiff or another person
or persons, during the pendency of the case.” C.R.S. §13-21-102(3)(a); Doc. 122 at 3. Plaintiff
points to the following questions and answers, which prompted the Court to admonish Mr. Reyes to
answer the questions yes or no:
Q. Okay. Now, you understood at -- if your work visa expired, that means you
would have to leave the United States and return back to Chile -- or Chile, excuse
me; is that correct?
A. That would be correct. Which in reality we weren't opposed to since we were
6
both from Chile, my wife and I –
…
Q. Okay. But that wasn't part of my question, all right? My question to you is:
Not, you know, whether you felt that you were making a promise to her or not -and we're going to get into that -- my question to you is: Did you understand -- it
sounds like what you understood that Ms. Tian wanted from Newmont is are they
going to advocate for her to get a green card sponsorship? Is that right?
A. That's the way I understood it and, therefore, my response back was that I
didn't -- I wasn't fully aware of what the process was, so I needed to go through
that to work with her.
…
Q. I understand that's your position, sir, but my question to you was: You didn't
convey in this e-mail to Ms. Tian the reservations you just testified to in front of
this jury? You didn't communicate those reservations – or at least in this e-mail,
or at least in January of 2011; isn't that true?
A. I didn't convey that but I didn't convey we would support a green card either.
…
Q. Well, you say you never had a chance to do it. You certainly had the
opportunity, at least in an e-mail in January 2011, to explain to her that, Look,
Ms. Tian, you know, there's a process here. I'm not comfortable at this point in
time endorsing you. I need to talk to HR. Let me look into this further. You didn't
explain that to her in writing or verbally in January 2011, did you?
A. I didn't because it was the first time she approached me formally on the subject
and, again, I wasn't ready to, via e-mail --
Trial Tr. at 32:7-12, 44:7-17, 49:3-10, 62:2-12. The “behavior . . . which is the subject of
the claim” is Mr. Reyes’ misleading responses and material omissions regarding the status of
Plaintiff’s green card application in the first half of 2011. That behavior could not have continued
after Plaintiff learned that Newmont would not sponsor her green card and that her position would
be eliminated in July of 2011. I find that Mr. Reyes’ editorializing regarding his communications
with Plaintiff are not a continuation of that conduct, but rather an inappropriate after the fact
7
attempt to justify that conduct. See Martin v. Union Pac. R. Co., 186 P.3d 61, 72 (Colo. App.
2007) reversed on other grounds, 209 P.3d 185 (Colo. 2009) (finding defendant’s testimony
regarding his current opinion about events at issue was not “conduct during the pendency of the
case” under §13-21-102(3)(a)).
3.
Prejudgment Interest
Plaintiff argues that she is entitled to pre-judgment interest pursuant to C.R.S. § 5-12-102,
which provides:
[W]hen there is no agreement as to the rate thereof, creditors shall receive interest as
follows:
(a)
When money or property has been wrongfully withheld, interest shall be an amount
which fully recognizes the gain or benefit realized by the person withholding such money
or property from the date of wrongful withholding to the date of payment or to the date
judgment is entered, whichever first occurs; or, at the election of the claimant…
Plaintiff argues that she is entitled to pre-judgment interest (although she does not take a
position on when it should accrue) because “Defendant’s withholding information Plaintiff needed
to obtain a Green Card was tantamount to denying her access to money and/or property.” Doc. 110
at 4. Defendant responds that it is not a “creditor” and that a six-month delay in seeking another
employer to sponsor her green card is not “money or property” within the meaning of the statute.
Doc. 112 at 4-6.
I find that Plaintiff is entitled to prejudgment interest. Section 5-12-102 is to be liberally
construed, see Mesa Sand & Gravel Co. v. Landfill, Inc., 776 P.2d 362, 365 (Colo. 1989), and
“victims of tortious conduct are clearly entitled to prejudgment interest under [§ 5-12-102].”
Estate of Korf v. A.O. Smith Harvestore Products, Inc., 917 F.2d 480, 486 (10th Cir.1990); see
Keller v. A.O. Smith Harvestore Products, Inc., 951 F.2d 1259 (10th Cir. 1991) (unpublished)
(reversing denial of prejudgment interest on negligent misrepresentation claim under § 5-12-102).
The “money or property” at issue is the wages Plaintiff lost by having to return to China instead of
8
maintaining her employment in the United States, not the six month delay in seeking a new
employer to sponsor her green card.
Prejudgment interest is measured from the date of the “wrongful withholding,” i.e., the date
that Plaintiff’s damages were measured. See Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d
821, 827 (Colo. 2008). As discussed above, I interpret the jury’s $150,000 award to include
$100,000 in lost wages for the period from August 2013 through August 2015 and $50,000 in lost
wages going forward from August 2015. Accordingly, Plaintiff is entitled to prejudgment interest
on the $100,000 measured periodically as that money would have been earned from August 2013
through August 2015. See Reed v. Mineta, 438 F.3d 1063, 1067 (10th Cir. 2006).
In sum, for the reasons given above, Defendant’s motion for judgment as a matter of law or
for a new trial under Fed. R. Civ. P. 50(b) (Doc. 113) is DENIED. Defendant’s motion to alter or
amend the judgment (Doc. 114) is GRANTED IN PART and DENIED IN PART, and the jury’s
punitive damages award of $500,000 is reduced to $150,000 pursuant to C.R.S. § 5-12-102(1)(a).
The Plaintiff is ORDERED to submit a new proposed form of judgment, including a calculation of
prejudgment interest, in accordance with this opinion on or before March 4, 2016.
Dated: February 18, 2016
s/ John L. Kane
Senior U.S. District Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?