Peeler v. KVH Industries, Inc.
ORDER: Plaintiff's Renewal of the Motion for Judgment as a Matter of Law and to Amend Judgment to Tax Costs 123 is DENIED. Plaintiff's Motion for New Trial on Damages or in the Alternative Motion for Additur 124 is DENIED. Plaintiff 039;s Motion for Application of Prejudgment Interest 125 is GRANTED in part as provided herein. The Clerk is directed to add to the Judgment in this case prejudgment interest running from April 12, 2012, at a rate of twelve percent per annum. Defen dant's Motion to Strike Peeler's Untimely Bill of Costs 126 is DENIED. Plaintiff is directed to file, on or before April 18, 2014, a motion for taxation of costs in this matter, to which Defendant may respond on or before May 2, 2014. Def endant's Motion to Strike Plaintiff's Post-Trial Motions 127 is GRANTED to the extent that Plaintiff's Renewal of the Motion for Judgment as a Matter of Law and to Amend Judgment to Tax Costs 123 and Plaintiff's Motion for New Trial on Damages or in the Alternative Motion for Additur 124 are denied. Signed by Judge Virginia M. Hernandez Covington on 4/7/2014. (CH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 8:12-cv-1584-T-33TGW
KVH INDUSTRIES, INC.,
This cause comes before the Court in consideration of
the following five Motions: (1) Plaintiff David Peeler’s
Renewal of the Motion for Judgment as a Matter of Law and to
Amend Judgment to Tax Costs (Doc. # 123), filed on February
20, 2014; (2) Peeler’s Motion for New Trial on Damages, or in
the Alternative, Motion for Additur (Doc. # 124), filed on
February 20, 2014; (3) Peeler’s Motion for Application of
Prejudgment Interest (Doc. # 125), filed on February 21, 2014;
(4) Defendant KVH’s Motion to Strike Peeler’s Untimely Bill
of Costs (Doc. # 126), filed on February 25, 2014; and (5)
KVH’s Motion to Strike Plaintiff’s Post-Trial Motions (Doc.
consideration, the Court now addresses each Motion in turn.
communication systems for mobile users on moving platforms
such as boats, buses, and motor homes.
On January 29, 2003,
Peeler entered into a Manufacturer’s Representative Agreement
(“the Agreement”) with KVH, by which KVH engaged Peeler as a
technical trainer and independent contractor.
Doc. # 32-2 at 2).
The Agreement provided that KVH would pay
Peeler “on all technical training performed in the Territory
to RV, Automotive, entertainment coach, OEM, mass merchant,
(Id. at 3).
Commission will be considered earned when [KVH] receives the
Technical Training Report upon completion by the end of each
month,” and that “[t]he Commission will be paid to [Peeler]
by the 20th of each month for the most recently ended month.”
In conjunction with these obligations, the Agreement
required KVH to send to Peeler, “[o]n or before the 15th day
of each month, . . . a statement of account showing the
quantity of trainings completed by [Peeler] . . . during the
month most recently ended and the amount of commission due .
. . thereon.”
KVH released Peeler as an independent contractor in
(Doc. # 30-2 at 25).
Peeler testified that,
sometime in 2005 after his termination from KVH, he received
certain KVH sales data and became concerned that KVH had not
paid him the total amount of commissions to which he was
entitled under the Agreement.
(Trial Tr. Doc. # 130 at 90,
Peeler initiated the instant breach-of-contract action
in April of 2012 in Hernando County Circuit Court, after KVH
declined to pay Peeler’s allegedly unpaid back commissions.
(Doc. # 2).
On July 17, 2012, KVH removed the action to this
Court on the basis of diversity jurisdiction.
(Doc. # 1).
On July 25, 2013, the Court entered an Order denying both
parties’ motions for summary judgment (Doc. # 48), and this
matter proceeded to a jury trial beginning on January 21,
2014 (Doc. # 102).
On January 23, 2014, the jury returned a
verdict for Peeler, specifically concluding that KVH had
breached its contractual obligations to Peeler under the
Agreement and that Peeler had not waived his right to receive
the unpaid commissions claimed by him under the Agreement.
(Doc. # 108).
The jury additionally determined that, as a
result of the breach by KVH, Peeler sustained a total of
$11,664.64 in damages.
On February 20, 2014, Peeler filed a Renewed Motion for
Judgment as a Matter of Law (Doc. # 123) and a Motion for New
Trial on Damages, or in the Alternative, Motion for Additur
(Doc. # 124).
Despite receiving a judgment in his favor,
Peeler explains that he “seeks relief from the judgment due
to substantive legal issues not addressed in the jury’s
verdict . . . [as well as] various evidentiary issues.” (Doc.
# 133 at 4). Additionally, on February 21, 2014, Peeler filed
a Motion for Application of Prejudgment Interest.
In response to these Motions, KVH filed a Motion to
Strike Peeler’s Bill of Costs 1 (Doc. # 126), a Motion to
response in opposition to Peeler’s Motion for Application of
Prejudgment Interest (Doc. # 134).
Peeler filed a response
in opposition to each of KVH’s Motions to Strike (Doc. ##
132, 133) on March 5, 2014.
With leave of Court, KVH filed
a reply (Doc. # 137) in support of its Motion to Strike
Peeler’s Post-Trial Motions on March 17, 2014.
The Court has
reviewed the Motions, the responses, and the reply, and is
otherwise fully advised in the premises.
Peeler attached his Bill of Costs as an exhibit to the
Motion for Judgment as a Matter of Law. (Doc. # 123-1).
Peeler’s Post-Trial Motions
Renewed Motion for Judgment as a Matter of Law
On January 23, 2014, after the close of evidence at
trial, both Peeler and KVH moved for judgment as a matter of
law pursuant to Federal Rule of Civil Procedure 50(a). 2 (Doc.
(Doc. # 107).
On the same day, the jury returned
a verdict in Peeler’s favor.
(Doc. # 108).
On January 24,
2014, the Court denied KVH’s motion for judgment as a matter
of law, finding a legally sufficient evidentiary basis for a
reasonable jury to find for Peeler, and accordingly denied as
moot Peeler’s motion for judgment as a matter of law.
## 113, 114).
Peeler, the prevailing party in this matter, “now moves
to renew his prior motion for judgment as a matter of law as
The Court notes that both parties designated their motions
for judgment as a matter of law as motions for “directed
However, “[i]nstead of using the term ‘directed
verdict’ for a motion for judgment as a matter of law when
the motion is made prior to the verdict, and the term
‘judgment notwithstanding the verdict’ when the motion is
made after the verdict is returned, Rule 50 now refers to
both motions as motions for judgment as a matter of law.”
Rankin v. Evans, 133 F.3d 1425, 1430 n.6 (11th Cir. 1998).
The Court viewed this improper designation as merely a
technical error, and therefore treated the motions as motions
for judgment as a matter of law in accordance with Rule 50.
See Beach-Mathura v. Am. Airlines, Inc., No. 08-21925-CIV,
2010 WL 1038563, at *6 (S.D. Fla. Mar. 19, 2010).
KVH has been fully heard on the issues of breach, contract
modification, and waiver, and pursuant to Fed. R. Civ. P. 50
‘[t]here is no legally sufficient evidentiary basis for a
reasonable jury to find for that party [KVH],’ on these
(Doc. # 123 at 2).
Indeed, the Court previously
denied as moot Peeler’s pre-judgment motion for judgment as
a matter of law because the jury did not find for KVH in this
matter, and the Court found a legally sufficient evidentiary
basis for a reasonable jury to find for Peeler.
a verdict for Peeler, the jury found (1) that KVH breached
its contractual obligations to Peeler under the Agreement and
(2) that Peeler did not waive his right to receive all of the
unpaid commissions claimed by him under the Agreement.
Verdict Doc. # 108 at 1).
The crux of Peeler’s argument appears to be that the
awarded damages in the amount of $11,664.64 reflects the
modification of the Agreement.”
(Doc. # 123 at 2).
argues that “[c]onsidering the jury’s award of $11,664.64, it
is clear that the jury found that the contract was modified,
Peeler’s actual damages under the contract and the evidence
presented at trial.”
Peeler further reasons that,
since “[t]he documentary evidence and undisputed testimony at
trial clearly established that KVH breached the Agreement,
that Peeler did not waive his rights under the Agreement, and
that the Agreement was not modified,” the Court must “resolve
this issue due to KVH’s insistence on an oral or unexecuted
modification of the Agreement, which [ ] obviously confused
inconsistent with the evidence.”
KVH moves to strike this Motion because Peeler “failed
to preserve his objections to the jury’s verdict before the
jury was discharged by the Court and he has accordingly waived
any claim for an amendment to the verdict.”
(Doc. # 127 at
Thus, according to KVH, Peeler’s Renewal of the Motion
for Judgment as a Matter of Law (Doc. # 123) and Peeler’s
Motion for New Trial on Damages (Doc. # 124) effectively
request the same relief: an increase in the jury’s award of
To the extent KVH requests that the Court strike
The Court acknowledges Peeler’s argument within the Renewed
Motion for Judgment as a Matter of Law that KVH “never
actually pled contract modification as an affirmative defense
in its response to Peeler’s Complaint.” (Doc. # 123 at 6).
However, because Peeler did not raise this argument in either
his Rule 50(a) motion (Doc. # 104), or his extensive pretrial motion in limine (Doc. # 70), both of which contained
other arguments related to KVH’s modification defense, the
Court declines to address this argument raised for the first
time in a post-trial motion.
Peeler’s Motion for Judgment as a Matter of Law due to
Peeler’s failure to object to the jury’s verdict previously,
the Court addresses this argument further below. For purposes
of the present analysis, the Court will overlook Peeler’s
potential waiver of his challenge to the jury’s verdict and
will analyze the present Motion according to Rule 50.
“Under Fed. R. Civ. P. 50(b), a Court may overturn a
jury verdict only if: (1) the verdict is premised on incorrect
legal standards, or; (2) ‘the facts and inferences point so
overwhelmingly in favor of one party that reasonable people
could not arrive at a contrary verdict.’”
Booth v. Pasco
Cnty., Fla., 854 F. Supp. 2d 1166, 1170 (M.D. Fla. 2012)
(quoting Brown v. Ala. Dept. of Transp., 597 F.3d 1160, 1173
verdict, the Court must view the evidence in a light most
favorable to the party opposing the motion.”
the Court may not make credibility judgments, re-weigh the
evidence, and/or substitute its own judgment for that of the
“On the contrary, the Court’s role is limited to
deciding whether there is some evidence in support of the
verdict such that a reasonable person could have supported
Id. (emphasis in original).
overturn the general verdict in his favor. Peeler’s exclusive
argument is that the damages award in this case is “wholly
inconsistent with the evidence.”
(Doc. # 123 at 2).
particular, Peeler presumes that the only possible reason for
an award of damages in the amount of $11,664.64 is the jury’s
“lack of legal clarity on the issue of modification of the
However, the Court notes that numerous
factual disputes existed in this case regarding the trainings
provided by Peeler and the method by which he was compensated
for those trainings.
Additionally, KVH successfully elicited
Peeler’s version of the facts.
(See Trial Tr. Doc. # 130 at
documents, credit cards receipts, and other documents from
the relevant period); Id. at 108 (illustrating a dispute as
to which accounts Peeler was already paid for); Id. at 113
(questioning Peeler’s calculation of damages)).
As KVH correctly explains, “although the jury heard
testimony from Peeler and his witnesses, Scott Czewski and
testimony in determining whether Peeler had met his burden of
claimed.” (Doc. # 137 at 3). To be sure, the Court instructed
the jury in this case that “it is the responsibility of the
Plaintiff to prove every essential part of his claims by a
preponderance of the evidence,” and that this standard means
“an amount of evidence that is enough to persuade you that
the Plaintiff’s claim is more likely true than not true.”
(See Jury Inst. Doc. # 109 at 6; Eleventh Circuit Civil
Pattern Jury Instructions 2013, Basic Instruction 3.7.1).
One example of an obstacle to Peeler’s ability to prove
his claims by a preponderance of the evidence during trial
was the amount of time that lapsed in this case between the
Throughout the trial, testimonial evidence reminded the jury
of the unavailability of documents that could have assisted
in computing the damages due (Trial Tr. Doc. # 130 at 10506; Doc. # 118 at 189) as well as the parties’ personal
difficulty remembering events that transpired over a decade
ago (Trial Tr. Doc. # 118 at 189) (“[T]en years ago – I mean,
my memory is pretty good, but ten years ago, some of the
details of exactly what happened are tough to recall.”).
In denying KVH’s Motion for Summary Judgment on the basis
of laches, the Court explained:
The Court acknowledges, as do the parties in
the instant case, that many of the preferred
sources of evidence that might once have assisted
in ascertaining the truth of the matters in
controversy are now unavailable due to the passage
of time. However, the Court does not find that the
staleness of this case is such that the Court should
preclude this matter from proceeding toward a
resolution on the merits.
With regard to the extent of prejudice
suffered by KVH due to the time lapse in this case,
the Court notes that Peeler has been prejudiced
likewise; this is not a case involving a plaintiff
who stockpiled relevant documents before lying in
wait only to ambush the defendant after some
predictable destruction of more favorable evidence
As discussed in reference to
instance, Peeler lacks documentation -- once
admittedly in his possession -- to demonstrate the
amount of training he completed for KVH. The amount
of training performed by Peeler constitutes a
central dispute of material fact in this case and,
as the plaintiff in this matter, Peeler bears the
ultimate burden of proving the amount of damages to
which he claims he is entitled.
continue to bear that burden with the added
challenge of utilizing decade-old evidence.
(Doc. # 48 at 35-37).
Now, after having the benefit of
returned a verdict in his favor, Peeler argues that the amount
of damages awarded is insufficient to compensate Peeler for
The Court finds that Peeler’s concern that the damages
award in this case is not high enough is inappropriately
raised in a Rule 50(b) motion because “[t]he jury’s findings
should be excluded from the decision-making calculus on a
reasonable jury could find for the party who prevailed at
Chaney v. City of Orlando, 483 F.3d 1221, 1228 (11th
Furthermore, “[t]he fact that Rule 50(b) uses
the word ‘renew[ed]’ makes clear that a Rule 50(b) motion
should be decided in the same way it would have been decided
prior to the jury’s verdict,” and that “any renewal of a
motion for judgment as a matter of law under Rule 50(b) must
be based upon the same grounds as the original request for
judgment as a matter of law made under Rule 50(a) at the close
of the evidence and prior to the case being submitted to the
Id. (citing Doe v. Celebrity Cruises, Inc., 394 F.3d
891, 903 (11th Cir. 2004)).
As repeatedly emphasized herein, Peeler is the party who
prevailed at trial, in light of which the Court previously
denied as moot Peeler’s Rule 50(a) motion for judgment as a
matter of law.
Within that motion, Peeler made no demand for
a legal determination that he was entitled to a specific
invitation to make specific damages calculations relating to
the purported “clear and uncontroverted evidence of damages”
Peeler claims to have presented at trial.
Peeler made no
such request for a determination of damages as a matter of
law in his Rule 50(a) motion, and therefore such a request in
Peeler’s Rule 50(b) motion is inappropriate.
Peeler may consider his Renewed Motion for Judgment as
a Matter of Law to be proper because he requests that the
Court make a finding that the jury could not, as a matter of
law, have found for KVH on the issue of contract modification
– an issue that Peeler raised in his previous motion for
judgment as a matter of law.
However, to the extent Peeler
requests this relief, the Court declines to make such a
finding at this juncture.
The Court adheres to its previous
determination that Peeler’s Motion is moot in light of the
verdict in his favor, and also in light of this Court’s
finding that numerous disputed issues of fact could have
affected the jury’s computation of damages in this case. 4
Given the confines of the Court’s role at this juncture –
inquiring as to whether there is some evidence in support of
The Court additionally notes that Peeler’s proposed verdict
form, which the Court adopted nearly verbatim, proposed a
question to the jury on the issue of waiver, but did not
propose a similar question inviting a conclusive finding on
the issue of modification. (See Doc. # 77-11).
the verdict such that a reasonable person could have supported
it – the Court finds that Peeler’s Rule 50(b) Motion for
Judgment as a Matter of Law is due to be denied.
The Court is persuaded by the procedural explanation in
Lyon Development Co. v. Business Men’s Assurance Co. of
America, 76 F.3d 1118, 1122 (10th Cir. 1996), which describes
Rule 50(b) as one that “permits a party to resurrect its
earlier motion for judgment as a matter of law after an
adverse verdict, [and] was drafted to accommodate Seventh
Importantly, “the rule does not permit
a party in whose favor the verdict was rendered to renew its
motion because ‘a jury verdict for the moving party moots the
Amendment to Subdivision (b)).
substance, merely an alternative basis for the relief he seeks
in his second post-trial motion, titled “Plaintiff, David
Alternative, Motion for Additur,” which the Court examines
more closely below.
In both Motions, Peeler complains that
the jury should have computed a higher damages award in
conjunction with its determination that KVH breached its
Agreement with Peeler and that Peeler did not waive his right
to receive commissions under the Agreement.
The Court found this case appropriate for submission to
the jury precisely due to its abundance of disputed factual
The number of trainings Peeler performed, as well as
how the parties contemplated Peeler would be compensated for
those trainings at the time the parties entered into the
Agreement, have been hotly disputed factual issues throughout
the course of this litigation, and the parties presented the
jury with conflicting evidence on these points.
essentially argues that the jury’s finding that KVH breached
its Agreement with Peeler necessarily means that the jury
must accept as true all testimony favorable to Peeler on the
issue of Peeler’s damages resulting from the breach.
simply not true; Peeler himself bore the ultimate burden of
proving his damages in this case, and the jury was free to
inferences therefrom in arriving at the awarded amount of
Thus, for all the reasons stated above, the Court denies
Peeler’s Renewal of the Motion for Judgment as a Matter of
Motion for New Trial on Damages or Alternative
Motion for Additur
Motion for New Trial
Failure to Object to Jury Verdict
Peeler has additionally filed a Motion for New Trial on
Damages, or in the Alternative, Motion for Additur, citing
six separate grounds.
(Doc. # 133 at 9).
that a new trial is warranted because this Court erred in (1)
admitting testimony at trial regarding contract modification,
(2) admitting testimony regarding parol evidence, (3) failing
to find “judicial estoppel as to Defendant’s assertion that
documents in evidence were not ‘final documents,’” (4) making
testimony, (5) permitting a demonstrative aid not admitted
into evidence to be sent back into the jury room, and (6)
allowing improper closing argument by KVH’s counsel.
Peeler asserts that these errors led to an incorrect award by
the jury, and he accordingly moves for a new trial on the
issue of damages only pursuant to Rule 59(a) of the Federal
Rules of Civil Procedure.
Rule 59 provides in relevant part:
Grounds for New Trial. The Court may, on
motion, grant a new trial on all or some
of the issues – and to any party – as
after a jury trial, for any reason
for which a new trial has heretofore
been granted in an action at law in
Fed. R. Civ. P. 59(a).
“Although a comprehensive list of the
grounds for granting a new trial is elusive, the Supreme Court
has held that a motion for new trial may rest on the fact
that ‘the verdict is against the weight of the evidence, that
damages are excessive, or that, for other reasons, the trial
was not fair to the party moving; and may raise questions of
law arising out of alleged substantial errors in admission or
rejection of evidence or instructions to the jury.’”
v. Clark, 484 F. Supp. 2d 1242, 1246 (M.D. Fla. 2007) (quoting
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)).
As referenced above, KVH has filed a Motion to Strike
this post-trial motion as improper in light of Peeler’s
failure to preserve his objections to the jury’s verdict
before the jury was discharged.
(Doc. # 127 at 2).
responds, however, that he “does not allege an [internally]
cited case law or Fed. R. Civ. P. 49(b),” but rather “argues
that the verdict is inconsistent with the great weight of the
(Doc. # 133 at 2).
Additionally, Peeler claims
“there is a combination of factors over which the jury had no
control that could have caused the jury to reach a possible
erroneous verdict and upon which the Court should conclude
that a new trial is warranted.”
(Id. at 2-3).
The Court finds Peeler’s argument very similar to that
of the plaintiff in Sands v. Kawasaki Motors Corp. U.S.A.,
513 F. App’x 847, 856 (11th Cir. 2013).
In that personal
injury case, a jury returned a verdict in favor of the
plaintiff for $1.5 million, finding that the plaintiff was
entitled to an award for past and future medical expenses,
but nothing for pain and suffering.
Id. at 850.
verdict, the plaintiff filed a motion for a new trial on the
issue of damages only, which the district court denied.
at 850-51. The Eleventh Circuit affirmed the district court’s
denial because the plaintiff had failed to object to the jury
verdict as inconsistent before the jury was excused.
Like Peeler, the plaintiff in Sands insisted “that she
is not challenging the verdict as inconsistent, and that she
is instead arguing that the verdict was against the ‘manifest
weight’ of the evidence.”
Specifically, the Sands
plaintiff reasoned that “the jury, having found that Kawasaki
was liable, could not possibly have concluded that she was
not entitled to damages for pain and suffering.”
Eleventh Circuit explained that
[t]he problem with [this] argument is that there
was evidence to support the jury’s decision not to
award pain and suffering: [the defendant] presented
a great deal of evidence suggesting it was not
liable for [the plaintiff’s] injuries at all. If
the jury had credited that evidence over [the
plaintiffs’] evidence, then [the plaintiff] would
not have been entitled to any damages, including
damages for pain and suffering. But the jury did
not credit [the defendant’s] evidence, which is
exactly [the plaintiff’s] point: there was no way
that the jury could have found liability and yet
award no damages for pain and suffering, given the
overwhelming evidence of that pain and suffering.
All of which means that [the plaintiff] is
challenging the jury’s verdict as inconsistent, and
that challenge in barred on appeal because she did
not object to the verdict before the jury was
Id. (citing Coralluzzo v. Educ. Mgmt. Corp., 86 F.3d 185 (11th
Peeler similarly challenges the jury’s verdict in this
Although Peeler insists in response to KVH’s Motion to
[Peeler’s] motion seeking a new trial does [Peeler] allege an
‘inconsistent verdict’ such that any of his objections would
have been waived by a failure to object to the verdict prior
to dismissal of the jury,” (Doc. # 133 at 3), the Court finds
Peeler’s arguments analogous to that of the Sands plaintiff:
Peeler contends that, because the jury found in Peeler’s favor
on the issues of breach and waiver of the right to receive
commissions, there is no way that the jury could have found
Peeler was entitled to only $11,664.64.
Indeed, Peeler uses
almost the precise language of the Sands plaintiff in seeking
a new trial on damages, arguing that “the jury only awarded
This verdict is inconsistent with the
great weight of the evidence.”
(Doc. # 124 at 3).
Thus, this Court finds, just as the court in Sands, that
Peeler’s Motion for New Trial on Damages is due to be denied
because Peeler failed to object to the jury verdict at the
time it was returned.
See Sands, 513 F. App’x at 857;
Coralluzzo, 86 F.3d at 186.
Although Sands and Coralluzzo
differ from the instant case in that those cases involved
personal injury actions where the plaintiff argued that an
award of no damages for pain and suffering was inconsistent
with a finding of the defendant’s liability, the Court finds
that the policy behind this waiver principle applies with
equal force here.
That is, “[t]he purpose of the rule is to
allow the original jury to eliminate any inconsistencies
without the need to present the evidence to a new jury.”
Coralluzzo, 86 F.3d at 186 (quoting Lockard v. Mo. Pac. R.R.
Co., 894 F.2d 299, 304 (8th Cir. 1990)). 5
Furthermore, the Court notes that the Eleventh Circuit
challenging a lack of pain-and-suffering damages, but in the
breach-of-contract context as well.
See, for example, Walter
International Productions, Inc. v. Salinas, 650 F.3d 1402,
1420 (11th Cir. 2011), in which the Court explained:
The Bart Group did not challenge the verdicts in
this case as inconsistent until it filed a posttrial motion seeking either judgment as a matter of
law, an order altering or amending the judgment, or
a new trial on damages. In that motion the Bart
Group argued, among other things, that the jury’s
‘inconsistent’ with its . . . finding that Mercado
was liable to the Bart Group for breaching the
parties’ contract. By then the jury was long gone.
Because the Bart Group did not object to the
verdicts as inconsistent before the jury was
excused, that issue has been waived.
Construction Corp., 417 F. App’x 898 (11th Cir. 2011), another
The Court acknowledges but rejects Peeler’s argument that
Sands and Coralluzzo are inapposite because the jury in this
case did not “award a $0 damage figure after finding breach
and no waiver.” (Doc. # 133 at 11). This argument misses
the point. Regardless of the dollar figure awarded, Peeler’s
argument, like the plaintiff in Sands, is that an award of
only $11,664.64 is “inconsistent with the great weight of the
evidence” (Doc. # 124 at 3), yet Peeler did not object on the
basis of this inconsistency before the jury was discharged.
case involving a contract dispute where the plaintiff filed
a post-trial motion to modify the jury’s verdict, the Eleventh
Had Plaintiff objected at the time the verdict was
rendered, the district court could have examined
the jury’s verdict to resolve any potential
inconsistencies. Instead, Plaintiff consented to
the jury’s dismissal and waited until a post-trial
motion to raise the issue. Appellate review is not
inconsistencies: we cannot be reasonably sure at
this late date exactly what the jury intended when
rendering its verdict.
Any party wishing to
clarify the jury’s basis for its verdict was free
to do so while the jury was still empaneled; the
failure to object waived the ability later to seek
review of alleged inconsistencies.
Id. at 901.
The Court accordingly finds that, by failing to object
to or seek clarification of the jury’s verdict while the jury
was still empaneled, Peeler has waived his ability to seek
review of the inconsistencies he alleges.
The Court thus
declines to grant a new trial on the basis of Peeler’s
contention that the damages in this case are inadequate.
b. Other Grounds
Furthermore, to the extent Peeler argues a new trial is
prejudicial statements of counsel, the manner of witness
testimony, and unadmitted demonstratives being submitted for
jury deliberations,” (Doc. # 124 at 22), the Court disagrees.
First, Peeler complains that the Court erroneously admitted
testimony at trial regarding contract modification because
KVH was bound by its corporate representative’s deposition
response that he had no knowledge of a specific change or
modification to Peeler’s Agreement with KVH.
(Doc. # 124 at
However, as the Court explained in its Order on the
parties’ motions in limine, KVH’s corporate representative
representatives’ agreements occurred on a “fairly regular
basis,” and that one of these routine adjustments was “more
than likely” the cause of the commission percentage Peeler
(Doc. # 88 at 18).
The Court acknowledges that a corporate representative’s
“we-don’t-know” response at deposition is binding on the
corporation at trial.
See QBE Ins. Corp. v. Jorda Enters.,
277 F.R.D. 676, 690 (S.D. Fla. Jan. 30, 2012).
read in its entirety, the Court disagrees with Peeler’s
representative deviates impermissibly from the testimony he
provided at the deposition.
The corporate representative
testified that there were no records of any such amendment to
Peeler’s contract, but that KVH often “amended the program”
by “modif[ying] commission amounts if we modified the form of
So we became more liberal with the quantities,
but we would have pruned back the percentage amount.”
Tr. Doc. # 118 at 189; 240-42).
The Court finds this
explanation consistent with the corporate representative’s
changing percentage amounts.
(See Palmer Dep. Doc. # 31-1 at
Next, Peeler argues that, in permitting KVH’s corporate
representative to testify regarding KVH’s intent as to the
impermissibly allowed the corporate representative to offer
parol evidence as to other contract terms, such as the term
“exclusive” and “all land mobile accounts.”
(Doc. # 124 at
The Court finds that any such testimony did not result
in prejudice to Peeler warranting a new trial. In the Court’s
instructions to the jury, the Court specifically identified
the ambiguous term “dealer/account sales” as the core of the
deciding what a contract term means, you must decide what the
parties agreed to at the time the contract was created.”
(Jury Inst. Doc. # 109 at 9).
KVH’s corporate representative
testified amply regarding KVH’s common practices, the history
of the business, and the day-to-day operations of the company.
(See, e.g., Trial Tr. Doc. # 118 at 148-67).
To the extent
the corporate representative may have commented on the intent
of the parties with regard to a different contract provision,
the Court finds that Peeler suffered no undue prejudice as a
Peeler’s counsel had the opportunity on redirect
examination to question the corporate representative with
purported parol evidence may have created among the jurors.
(Trial Tr. Doc. # 118 at 232-47).
Peeler additionally claims that a new trial is warranted
because KVH’s corporate representative testified at trial,
for the first time, that he did not know whether certain
reports were “final documents” reflecting sales from KVH’s
customers that were used to compute the commission totals due
to KVH’s representatives.
(Doc. # 124 at 12-14).
claims that judicial estoppel should prevent KVH from making
such a statement, since it is “completely incompatible with
Defendant’s prior presentation of these documents throughout
the underlying litigation of this case, which it represented
as containing ‘unit totals from national account customers.’”
(Id. at 14).
At this juncture, the Court is disinclined to
find that KVH’s characterization of certain spreadsheets as
representative at trial: “I just don’t know if they are the
package,” (Trial Tr. Doc. # 118 at 130), particularly given
the circumstances of this case and the understandable lack of
documentary evidence on behalf of both parties due to the
passage of time.
Thus, the Court finds no cause to grant
Peeler a new trial on this basis.
Peeler next argues he is entitled to a new trial because
this Court committed “error with respect to discretionary
(Doc. # 124 at 15).
Peeler complains that the
witnesses notwithstanding the fact that new matters were not
brought out on redirect examination” (id.), permitted KVH “to
go outside the subject matter of the direct examination
despite objection by Plaintiff” (id. at 16), permitted KVH’s
corporate representative to testify in the narrative (id. at
17), and overruled Peeler’s copious objections at trial, all
of which, Peeler contends, substantially prejudiced his case.
Again, the Court disagrees.
Pursuant to Federal Rule of Evidence 611, the Court has
the authority to exercise “reasonable control over the mode
and order of examining witnesses and presenting evidence.”
Fed. R. Evid. 611.
The source of many of Peeler’s objections
at trial was this Court’s discretionary application of what
has been termed the “one-appearance rule.”
See Lyman v. St.
Jude Med. S.C., Inc., 580 F. Supp. 2d 719, 727 (E.D. Wisc.
As the term implies, the one-appearance rule promotes
judicial economy and the witness’s convenience by permitting
the witness to be called only once.
As described in Lyman,
“St. Jude will produce [the witness] during St. Jude’s casein-chief for direct examination by St. Jude.
direct examination, counsel for plaintiffs may cross-examine
[the witness] without being limited to matters covered in the
Id. at 727-28.
Peeler’s counsel of the Court’s intention to proceed in
accordance with this method of witness presentation, Peeler’s
questioning outside the scope of direct examination.
Court adheres to its decision at trial to permit questioning
of the witnesses in this manner, and finds that Peeler did
not suffer such prejudice due to this method of questioning
that he is entitled to a new trial.
Peeler also complains that the Court permitted a sketch
drawn by KVH’s corporate representative during his testimony
at trial to be sent back to the jury room during deliberations
despite the sketch not being admitted into evidence.
# 124 at 18).
Peeler compares the corporate representative’s
sketch of KVH’s distribution channels to the demonstrative
exhibit permitted into the jury room in Baugh ex rel. Baugh
v. Cuprum S.A. de C.V., 730 F.3d 701 (7th Cir. 2013).
Baugh, a products liability case brought by a plaintiff who
“suffered a severe brain injury when the . . . ladder he was
using to clean his gutters buckled and collapsed,” id. at
demonstrative purposes, to be sent to the jury for its use
during deliberations. Id.
Since the plaintiff had objected
at trial to the use of the exemplar as substantive evidence,
the Seventh Circuit found it was an abuse of discretion for
the trial court to send the object to the jury.
also analogizes the sketch to “a chart or placard which is
not evidence but used to illustrate and aid in conveying an
argument to the jury.”
(Doc. # 124 at 19).
The Court finds that the sketch drawn by KVH’s corporate
representative is unlike an exemplar used at trial solely for
demonstrative purposes, and is also unlike a demonstrative
aid prepared by counsel in advance of trial.
scratch in conjunction with his testimony.
In this case,
The Court finds
deliberations did not prejudice Peeler because the jury had
purpose, and the circumstances under which it was prepared.
Peeler’s argument that the sketch “could have left the jurors
with the final impression that Defendant’s interpretation of
the term ‘dealer/account sales’ was the . . . interpretation
upon which they should calculate damages,” (Doc. # 124 at
19), is unfounded in light of these considerations. The Court
accordingly finds that permitting the sketch to be sent to
the deliberation room does not constitute sufficient grounds
to grant a new trial for Peeler.
Finally, Peeler argues that a new trial is appropriate
in light of certain comments made by KVH’s counsel during
closing argument, including counsel’s expression of her own
beliefs - “I think that’s probably the most incredible thing
characterization of the Agreement between the parties and
other documents in evidence.
(Doc. # 124 at 20).
also complains that KVH’s counsel misguided the jury on the
issue of modification and improperly commented on the absence
of a potential witness, Mr. LeBelle.
(Id. at 21).
The Court finds that Peeler’s concerns relating to these
allegedly inappropriate comments during closing argument did
not result in prejudice to Peeler in light of the Court’s
earlier reminder to the jury that “what the lawyers say isn’t
evidence, ladies and gentlemen.
So this is not evidence at
all, and you need to rely on the testimony in this case.”
(Doc. # 119 at 37).
After closing arguments, along with the
Court’s instructions to the jury on the substantive law of
the case -- including modification, which Peeler contends
KVH’s counsel mischaracterized (See Jury Instr. Doc. # 109 at
14) -- the Court again instructed the jury that “Evidence
includes the testimony of witnesses and exhibits admitted.
But, anything the lawyers say is not evidence and isn’t
binding on you.”
(Id. at 3; Eleventh Circuit Civil Pattern
Jury Instructions 2013, Basic 3.3).
Furthermore, Peeler did
(See Doc. # 119 at 15-34).
The Court acknowledges that under certain circumstances
“improper argument may be the basis for a new trial even if
argument of KVH’s counsel nor any other perceived error listed
by Peeler in his Motion for New Trial on Damages or, in the
Alternative, Motion for Additur, rendered the trial unfair to
Peeler, the Court finds Peeler’s Motion for New Trial is due
to be denied.
Motion for Additur
“The Supreme Court has held that the Seventh Amendment
increasing a jury’s award of damages.” Sepulveda v. Burnside,
380 F. App’x 821, 823 (11th Cir. 2010) (citing Dimick v.
however, that this case falls under an exception to that rule,
because “the Eleventh Circuit has held that additur may be
established and damages are not in dispute.”
(Doc. # 133 at
13) (citing EEOC v. Massey Yardley Chrysler Phymouth, Inc.,
117 F.3d 1244, 1252-53 (11th Cir. 1997)).
“[A] party seeking to challenge the jury verdict bears
a high burden to overcome.”
State Contracting & Eng’g Corp.
no objection has been raised.”
McWhorter v. City of
Birmingham, 906 F.2d 674, 677 (11th Cir. 1990). However, the
Court does not find that the interest of substantial justice
mandates a new trial in this case. See id.
v. Condotte Am., Inc., No. 97-7014-CIV, 2002 WL 34365826, at
*2 (S.D. Fla. June 4, 2002).
As explained by the State
Contracting court, “[i]n this Court’s years of experience
with jury verdicts, it is difficult if not impossible to
decipher what calculations the jury made to arrive at its
verdict.” Id. The problem with Peeler’s argument for additur
is that, in this case, there is no undisputed amount that the
Court can simply award as damages in light of the jury’s
unspecific finding that KVH breached the Agreement.
burden rested with Peeler to prove exactly what damages he
incurred as a result of the breach. “The jury obviously chose
to believe [Peeler’s] claims only to a limited extent.”
McRevy v. Ryan, No. 08-508-CG-B, 2010 WL 749327, at *4 (S.D.
Ala. Feb. 26, 2010).
As previously noted, the Court instructed the jury in
this case that “it is the responsibility of the Plaintiff to
prove every essential part of his claims by a ‘preponderance
of the evidence,’” and that this standard means “an amount of
evidence that is enough to persuade you that the Plaintiff’s
claim is more likely true than not true.”
# 109 at 6).
(Jury Instr. Doc.
Through the offering of conflicting testimony
regarding training of certain accounts, disputes over what
evidence in this case due to the passage of time, the jury
faced a multitude of discrepancies regarding the amount of
damages, if any, owed to Peeler.
The jury ultimately relied
$11,664.64 represented an appropriate award of damages in
this case, and the Court finds no reason to disturb the jury’s
finding in this regard.
Accordingly, Peeler’s Motion for New Trial on Damages or
in the Alternative, Motion for Additur, is denied in its
III. Prejudgment Interest
interest, the Court will provide some history regarding the
parties’ positions on the issue throughout this litigation.
KVH and Peeler filed cross motions for summary judgment on
June 6, 2013 (Doc. # 29), and June 7, 2013 (Doc. # 34),
As a secondary concern to his substantive
arguments, Peeler included within his summary judgment motion
a brief assertion of his entitlement to prejudgment interest
pursuant to Rhode Island General Laws § 9-21-10 should he be
awarded damages as a prevailing party in this litigation.
(Id. at 15).
KVH argued in response to Peeler’s motion that
an award of prejudgment interest to Peeler would violate
encourage early settlement of claims.
(Doc. # 38 at 12).
On July 25, 2013, this Court entered an Order denying
each party’s motion for summary judgment and additionally
determining that an award of prejudgment interest in this
case would be inappropriate.
(Doc. # 48).
On August 19,
requested that the Court reconsider its Order on the motions
for summary judgment only as to the Court’s determination
that an award of prejudgment interest would be inappropriate
in this case.
(Doc. # 49).
In ruling on Peeler’s motion for reconsideration, the
Court reasoned as follows:
The Court adheres to its previous determination
that an award of prejudgment interest may be
inappropriate where such award would promote
neither of the statutory purposes of § 9-21-10
recognized by the Rhode Island Supreme Court.
Martin, 559 A.2d at 1031. However, in an abundance
of fairness to Peeler, the Court defers its
determination of whether or to what extent Peeler
may be entitled to prejudgment interest until such
time as the parties have had an opportunity to
present all relevant evidence at trial.
(Doc. # 54 at 16).
After the conclusion of the trial in this matter, the
Court issued an Order setting a deadline of February 24, 2014,
for Peeler to file a motion for prejudgment interest in order
to finally resolve the issue in light of the evidence adduced
(Doc. # 117).
Peeler accordingly filed his Motion
for Application of Prejudgment Interest (Doc. # 125) on
February 21, 2014.
KVH filed a response in opposition to the
Motion on March 7, 2014.
For the reasons that follow,
Peeler’s Motion for Application of Prejudgment Interest is
granted in part.
In a diversity case, “[w]hether a successful claimant is
entitled to prejudgment interest is a question of state law.”
Venn v. St. Paul Fire and Marine Ins. Co., 99 F.3d 1058, 1066
(11th Cir. 1996) (citing Royster Co. v. Union Carbide Corp.,
737 F.2d 941, 948 (11th Cir. 1984)).
The parties agree that
the award of prejudgment interest in this matter turns on the
application of Rhode Island General Laws § 9-21-10.
statute provides, in relevant part:
(a) In any civil action in which a verdict is
rendered or a decision made for pecuniary damages,
there shall be added by the clerk of the court to
the amount of damages interest at a rate of twelve
percent (12%) per annum thereon from the date the
cause of action accrued, which shall be included in
the judgment entered therein.
interest shall be calculated at the rate of twelve
percent (12%) per annum and accrue on both the
prejudgment interest entered therein. This section
shall not apply until entry of judgment or to any
contractual obligation where interest is already
R.I. Gen. Laws § 9-21-10.
The parties disagree, however, as
prejudgment interest in this case.
As the Court discussed at length in its Order on Peeler’s
Motion for Reconsideration, although the Rhode Island Supreme
Court “has consistently stated that prejudgment interest is
peremptorily added to the compensatory damages award by the
2109929, at *17 (R.I. May 16, 2013), that court has also, by
certain factual circumstances, Martin, 559 A.2d at 1031,
endorsed the principle that a court maintains discretion to
determine whether prejudgment interest under § 9-21-10 should
A federal court sitting in diversity is required to apply
the law as declared by the state’s highest court.
Transp., Inc. v. Trism Specialized Carriers, Inc., 182 F.3d
788, 790 (11th Cir. 1999) (citing Erie R.R. Co. v. Tompkins,
304 U.S. 64 (1938)).
In the absence of authority directly on
point, this Court must “determine the issues of state law as
we believe the [state] Supreme Court would.”
consideration of the relevant Rhode Island law, this Court
adheres to its previous reliance on Martin in finding that an
award of prejudgment interest may be inappropriate in a case
where such award would promote neither of the statutory
objectives recognized by the Rhode Island Supreme Court: (1)
encouraging early settlement of claims, and (2) compensating
plaintiffs for waiting for recompense to which they were
Martin, 559 A.2d at 1031.
(See Doc. # 48
proposed a compromise within this sparsely developed area of
That is, for the first time, rather than arguing
strictly that prejudgment interest is inappropriate in this
case, KVH proposes that, even if “the Court reverses its
preliminary conclusion and does decide to award prejudgment
interest, that award, at best, should accrue on the date this
litigation was filed (i.e. 2012) and not when Peeler claims
it purportedly accrued (i.e. 2004).”
(Doc. # 134 at 7 n.5). 7
KVH offers the policy consideration that “[s]etting the point
of accrual for prejudgment interest at the date of filing
serves to protect against the possibility of a windfall to
Peeler on account of his unreasonable delay.
It would also
. . . promote the purpose of the statute by discouraging
plaintiffs from ‘dragging their feet to the courthouse in
hopes of increasing their judgment by application of [Rhode
Island’s] generous 12% interest rate.’”
Buckley v. Brown Plastics Mach., LLC, 368 F. Supp. 2d 167,
173 (D.R.I. 2005)).
Until this point in the litigation, the parties have
offered argument on the issue of prejudgment interest only as
to whether prejudgment interest should apply from Peeler’s
proposed date of accrual: “the date KVH failed to pay Peeler
the commissions due him,” (Doc. # 34 at 15), which Peeler
The Court acknowledges that, first and foremost, KVH argues
that prejudgment interest is inappropriate in this case
(See Doc. # 134).
However, for the reasons
stated in this Order, the Court finds that permitting
prejudgment interest to accrue from the date this action was
filed is appropriate under the circumstances of this case.
Prejudgment Interest is March 31, 2004 (Doc. # 125 at 10).
Indeed, the Court premised its initial determination that an
award of prejudgment interest would be inappropriate in this
March 31, 2004, the end date of the Agreement (See Doc. # 130
at 24), and KVH proposes April 12, 2012, “the date this
litigation was filed” (Doc. # 134 at 7; Doc. # 2 at 4).
Court finds that an award dating back to March 31, 2004, would
be inappropriate for the same reasons articulated in the
Court’s Summary Judgment Order (Doc. # 48) and Order on
Peeler’s Motion for Reconsideration (Doc. # 54).
even after considering all the relevant evidence at trial,
the Court finds that much of the delay in bringing this action
is attributable to Peeler’s own inaction, and not to KVH’s
refusal to settle Peeler’s claim.
In particular, the Court finds an award dating back to
March 31, 2004, inappropriate because at that time Peeler
himself had not identified to KVH the basis for his current
As the Court noted in its Summary Judgment Order,
“[o]n April 4, 2005, Peeler sent Palmer a letter explaining
that, since he never signed the Contractor Outline, the
Outline did not effectively amend the original Agreement
between the parties.
(Apr. 4, 2005 Letter Doc. # 32-10 at
Thus, Peeler’s correspondence with Palmer in 2005
ultimately raised on summary judgment and tried in this case.
If not even Peeler could articulate his grounds for the
instant breach-of-contract action until after April of 2005,
the Court finds that an award of prejudgment interest before
that time certainly would not promote the statutory purpose
of encouraging early settlement.
Furthermore, the Court cannot discern from the jury’s
award of damages the precise date on which Peeler’s damages
Notably, Peeler did not request a more
detailed verdict form than that ultimately utilized by the
jury in this case. In fact, the Court adopted almost verbatim
the verdict form proposed by Peeler before the start of trial.
(Compare Doc. # 77-11 with Doc. # 108).
explained previously, Peeler did not attempt to inquire into
determination that a breach occurred, the Court is unable to
pinpoint an exact date on which Peeler’s damages began to
“accrue” and, for the reasons already discussed, the Court
does not consider March 31, 2004, an appropriate substitute
for this undiscernible date.
For these reasons, the Court finds persuasive a decision
issued by the District of Rhode Island in 2005, Buckley v.
Brown Plastics Machinery, LLC, 368 F. Supp. 2d 167 (D.R.I.
In that breach-of-contract case, a jury returned a
verdict in favor of the plaintiff and awarded damages for the
plaintiff’s contract claim against the defendant.
After the Court’s entry of judgment in an amount
consistent with the jury’s verdict, the plaintiff filed a
motion to amend the judgment to include prejudgment interest.
Id. at 168.
Although the parties in Buckley agreed that the
plaintiff was entitled to prejudgment interest on the awarded
damages, they disagreed over the point in time from which the
interest should be calculated. Id. at 169.
plaintiff argued that his cause of action accrued on “the
date the contract was signed and the [relevant] payment became
payable to him,” the defendant maintained that plaintiff’s
cause of action did not accrue for purposes of § 9-21-10 until
the date the plaintiff filed his lawsuit.
Id. at 170.
The Buckley court reasoned that, although “[t]he Rhode
Island Supreme Court has held that in a breach of contract
action, the focus of the inquiry under § 9-21-10 is the point
at which the plaintiff actually began to suffer damages,” the
court noted that “[i]t is also clear that the point at which
the contract is breached is not per se the point of accrual
Furthermore, the court cited to Martin for the principle that
“[t]he Rhode Island Supreme Court has repeatedly pointed to
interest as part of the remedy for breach of contract: (1) to
promote early settlement of claims, and (2) to compensate
plaintiffs for the loss of use of money rightfully owed,” id.
at 171, and found that
In a case such as this (and no doubt many like it)
both purposes are in play. The point from which
prejudgment interest accrues is the date from which
Plaintiff’s damages actually began, or put another
way, from the point at which he was entitled to his
money, and did not receive it; however, where, as
here, the precise moment at which the rights to
payments vested in Plaintiff under the contract is
in dispute, another method of determining the date
of accrual, one which serves the dual purposes of
the statute, may well be appropriate.
Consistent with these considerations, the Buckley court
concluded that prejudgment interest began to accrue on the
date the plaintiff filed the lawsuit.
Relying upon Fratus v.
Republic Western Ins. Co., 147 F.3d 25 (1st Cir. 1998),
Buckley explained that “[s]ince the cause of action in this
case is a demand of performance on a contract, the date of
accrual for the cause of action was the date of demand, i.e.,
the date the action was filed.” Buckley, 368 F. Supp. 2d at
172 (internal quotation and emphasis omitted).
This Court agrees with Buckley’s rationale.
case, similar to the plaintiff in Buckley, Peeler’s damages
arose from the Agreement, “which was the centerpiece of the
While the jury’s verdict determined that Peeler
was entitled to $11,664.64, this finding of the jury generally
reflects that Peeler sustained this amount of damages “as a
result of the breach of contract by [KVH].”
108 at 2).
(Verdict Doc. #
Thus, the verdict reveals only that, at least as
of the time Peeler filed this suit, he was due such an amount.
determine, based on the jury’s verdict, the precise moment
[Peeler] was originally entitled to these funds.”
368 F. Supp. 2d at 172.
“Rather than speculate as to what
the jury’s verdict may have represented, this Court believes
the best approach is to apply an equitable resolution that
adopts the ‘time of filing’ approach applied by the First
Circuit . . . .”
Id. at 172-73.
The First Circuit in Fratus v. Republic Western Ins.
Co., 147 F.3d 25 (1st Cir. 1998), analyzed § 9-21-10 in the
context of a breach-of-contract action.
The court reasoned
[u]nder R.I. Gen. Laws § 9-21-10, pre-judgment
interest is technically calculated from “the date
the cause of action accrued.” Since the cause of
action in this case is a demand of performance on
a contract, the date of accrual for the cause of
action was the date of demand, i.e., the date the
action was filed.
Id. at 30 n.6 (emphasis added).
Thus, the First Circuit
affirmed the district court’s determination that an award of
starting date of the interest’s accrual to “the date that
plaintiffs filed their complaint and demand for payment in
the district court.”
Id. at 31.
Applying prejudgment interest from the date Peeler filed
the present action eliminates the Court’s previous concerns
regarding an award of prejudgment interest in this case. That
is, the Court previously reasoned that allowing an award with
an accrual date in 2004 would be inappropriate because Peeler
himself was responsible for much of the delay in initiating
this action. 8
Permitting an award of prejudgment interest
As the Court has previously noted, an award of prejudgment
interest dating back to 2004 would particularly run afoul of
the statutory purpose of encouraging early settlement
because, as of 2005, Peeler had not communicated his present
claim to KVH, but rather presented an entirely different basis
with a starting date of Peeler’s date of filing, however,
would promote both of the statutory purposes of prejudgment
interest articulated by the Rhode Island Supreme Court.
In coming to such a determination, the Court is
mindful that one of the dual purposes of
prejudgment interest – encouraging early settlement
of suits – speaks not only to defendants, but to
plaintiffs as well. By setting the point of accrual
for prejudgment interest at the date of filing,
plaintiffs are discouraged from dragging their feet
to the courthouse in hopes of increasing their
judgment by application of the generous 12%
interest rate. At the same time, the defendant’s
incentive to settle is maintained.
Buckley, 368 F. Supp. 2d at 173.
The notion of setting the
point of accrual for prejudgment interest as the date of
filing has been adopted in other cases applying § 9-21-10 as
See Sargent v. Sargent, No. PC08-1429, 2011 WL 1463981
interest is not a form of damages and that a premature accrual
date would result in a windfall to the Plaintiffs . . . [t]he
Court holds that . . . the date Plaintiffs filed their
Complaint is the appropriate date from which the clerk should
2246951, at *2 (N.D. Ohio May 29, 2008) (“In the case of a
[under Rhode Island law] is held to accrue from the date of
demand, i.e., the date the action was filed, to the date
judgment was rendered.”) (emphasis omitted).
Rhode Island courts have explained “it is clear that the
amount of the award on which interest is to be computed and
the date on which the claimant’s cause of action accrued are
matters of law to be decided by the Court.” Commercial Assocs.
v. Tilcon Gammino, Inc., 801 F. Supp. 939, 943 (D.R.I. 1992).
Therefore, the Court adds to the judgment in this case
prejudgment interest running from April 12, 2012, the date
Peeler filed this action in state court (Doc. # 2 at 4), at
a rate of twelve percent per annum.
Proposed Bill of Costs
On February 20, 2014, twenty-eight days after the jury
returned a verdict in Peeler’s favor and twenty-seven days
after the corresponding entry of judgment, Peeler filed his
Bill of Costs as an exhibit to his Motion for Judgment as a
Matter of Law.
(Doc. # 123-1).
On February 25, 2014, KVH
filed a Motion to Strike Peeler’s Bill of Costs as untimely
(Doc. # 126) pursuant to Federal Rule of Civil Procedure 54
and Local Rule 4.18.
That Local Rule provides as follows:
In accordance with Fed. R. Civ. P. 54, all claims
appropriate pleading or pretrial stipulation shall
be asserted by separate motion or petition filed
not later than fourteen (14) days following the
entry of judgment. The pendency of an appeal from
the judgment shall not postpone the filing of a
timely application pursuant to this rule.
Local Rule 4.18, M.D. Fla.
Specifically, KVH argues that Peeler not only missed the
fourteen-day deadline for filing a bill of costs, but Peeler
also failed to file a separate motion to tax costs, as
required by the local rules.
(Doc. # 126 at 2).
KVH notes, Peeler “attached his Bill of Costs to a post-trial
motion which essentially seeks that the Jury’s verdict (in
which he was declared the prevailing party) be set aside.”
KVH also argues that Peeler could have filed a motion
to request additional time for filing his Bill of Costs but
failed to do so.
(Id. at 2-3).
In response to the Motion to Strike, Peeler argues that
the Court should find that Peeler’s failure to file the Bill
of Costs within fourteen days constitutes excusable neglect
under Federal Rule of Civil Procedure 6(b).
(Doc. # 132).
Specifically, Peeler argues that there is good reason for his
determination of whether or to what extent Peeler may be
entitled to prejudgment interest until such time as the
parties have had an opportunity to present all relevant
evidence at trial.”
(Id. at 3) (quoting Doc. # 54 at 16).
Thus, Peeler claims that he “understood that the judgment
entered January 24, 2014, was not the final judgment because
the Court had not ruled on whether prejudgment interest was
going to be added to the judgment amount.”
Rule 6(b) provides, in relevant part: “When an act may
or must be done within a specified time, the Court may, for
good cause, extend the time . . . on motion made after the
time has expired if the party failed to act because of
Fed. R. Civ. P. 6(b)(1)(B).
neglect is determined by assessing factors including: ‘the
danger of prejudice to the [nonmovant], the length of delay
Peeler additionally explains that he decided to submit his
Bill of Costs before February 24, 2014, the deadline imposed
by the Court for Peeler’s post-trial Motion for Prejudgment
Interest, because this Court’s Order on February 12, 2014,
“advis[ed] that the case was closing on February 24, 2014.”
(Doc. # 132 at 3). However, the Court’s February 12, 2014,
Order merely provided as follows:
“In a previous Order [(Doc. # 54)], this Court
deferred its determination of whether or to what
extent Plaintiff may be entitled to prejudgment
interest until such time as the parties presented
all relevant evidence at trial.
intends to file a motion seeking an award of
prejudgment interest, Plaintiff is directed to do
so on or before February 24, 2014.”
(Doc. # 117).
Peeler’s misconception that the case “was
closing” on February 24, 2014, however, is irrelevant for
purposes of the present analysis, as Peeler had already missed
the fourteen-day deadline for filing his Bill of Costs by the
time the Court entered the February 12, 2014, Order.
and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good
Seyboth v. Gen. Motors Corp., No. 8:07-cv-2292-T-
27TBM, 2008 WL 1994912, at *1 (M.D. Fla. May 8, 2008) (quoting
Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 99798 (11th Cir. 1997)).
“Although inadvertence, ignorance of
the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect, it is clear that ‘excusable
neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and
is not limited strictly to omissions caused by circumstances
beyond the control of the movant.”
Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993).
The Court finds Peeler’s delay in filing his Bill of
Costs to constitute excusable neglect.
KVH has identified no
prejudice it has incurred as a result of Peeler’s thirteenday delay in filing his Bill of Costs.
Peeler filed the Bill of Costs as an exhibit to a post-trial
motion rather than as a motion itself, Peeler proposes to
immediately remedy this oversight by filing a separate motion
for costs upon the Court’s denial of KVH’s present Motion to
(Doc. # 132 at 5).
Indeed, Peeler titles his
response to the Motion to Strike as both a response and a
“Motion for Extension of Time to File Motion for Costs.”
Furthermore, the Court finds that the slight delay
prejudgment interest in this case –- is excusable.
The Court thus finds that Peeler’s omission constitutes
The Court acknowledges KVH’s request
within the Motion that, “[s]hould the Court . . . deem
Plaintiff’s Bill of Costs timely, KVH respectfully reserves
the right to file substantive opposition to the same and
requests that the Court allow it no less than fourteen days
(14) to do so.”
(Doc. # 126 at 3).
KVH will have the
opportunity to respond to Peeler’s Motion for Taxation of
Costs upon Peeler’s proper filing of the motion in accordance
with this Order.
Accordingly, KVH’s Motion to Strike Peeler’s Untimely
Bill of Costs (Doc. # 126) is denied.
Peeler is directed to
file, on or before April 18, 2014, a motion for taxation of
costs in this matter, to which KVH may respond on or before
May 2, 2014.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff’s Renewal of the Motion for Judgment as a
Matter of Law and to Amend Judgment to Tax Costs (Doc.
# 123) is DENIED.
Plaintiff’s Motion for New Trial on Damages or in the
Alternative Motion for Additur (Doc. # 124) is DENIED.
Interest (Doc. # 125) is GRANTED in part as provided
The Clerk is directed to add to the Judgment in
this case prejudgment interest running from April 12,
2012, at a rate of twelve percent per annum.
Defendant’s Motion to Strike Peeler’s Untimely Bill of
Costs (Doc. # 126) is DENIED.
Plaintiff is directed to
file, on or before April 18, 2014, a motion for taxation
of costs in this matter, to which KVH may respond on or
before May 2, 2014.
Motions (Doc. # 127) is GRANTED to the extent that
Plaintiff’s Renewal of the Motion for Judgment as a
Matter of Law and to Amend Judgment to Tax Costs (Doc.
# 123) and Plaintiff’s Motion for New Trial on Damages
or in the Alternative Motion for Additur (Doc. # 124)
DONE and ORDERED in Chambers in Tampa, Florida, this 7th
day of April, 2014.
Copies: All Counsel of Record
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