Sprint Nextel Corporation v. Middle Man, Inc., The et al

Filing 256

MEMORANDUM AND ORDER denying 249 Motion for New Trial. Please see order for details. Signed by District Judge J. Thomas Marten on 05/26/2017. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SPRINT NEXTEL CORPORATION,
Plaintiff,
v.

Case No. 2:12-cv-02159-JTM

THE MIDDLE MAN, INC.,
Defendant.

MEMORANDUM AND ORDER
This matter is before the court on Sprint’s Motion for New Trial (Dkt. 249).
Sprint contends errors in the instructions and in the admission or exclusion of evidence
warrant the granting of a new trial. For the reasons stated herein, the court finds the
motion should be denied.
I. Standard
Rule 59 provides that the court may grant a new trial “for any reason for which a
new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ.
P. 59(a). The primary purpose of the rule is to allow for correction of manifest errors.
See Waugh v. Williams Companies, Inc. Long Term Disability Plan, 323 F.App’x 681, 684
(10th Cir. 2009). Motions for new trial are not regarded with favor and should be
granted only with great caution. Breen v. Pruter, ___F.App’x___, 2017 WL 655405, *13
(10th Cir. Feb. 17, 2017). “Courts do not grant new trials unless it is reasonably clear that
prejudicial error has crept into the record or that substantial justice has not been done,

and the burden of showing harmful error rests on the party seeking the new trial.” 11
Fed. Prac. & Proc. Civ. § 2803 (3d ed.).
II. Discussion
1. Jury instructions on contract interpretation. Sprint contends Jury Instruction No.
12 (along with No. 13) “was confusing and elevated the contra preferentum rule above
primary rules of contract construction, both in terms of analytical order and
prominence, and failed to accurately or completely embody the relevant Kansas law of
contract interpretation.” Dkt. 249 at 7. It contends the jury might have based its verdict
on the contra preferentum doctrine (construing the document against the drafter) without
first giving appropriate weight to extrinsic evidence of the parties’ interpretations of the
contract. Id. Sprint argues the instructions were contrary to First Nat’l Bank of Olathe v.
Clark, 226 Kan. 619, 602 P.2d 1299 (1979), and that the jury should have been instructed
to consider extrinsic evidence and then, if the agreement was still ambiguous, to
construe the agreement against the drafter. Dkt. 249 at 9.
The court sees no inconsistency with First Nat’l Bank. The jury was told it had to
determine the meaning the parties attached to the contract terms, and that in doing so it
could consider “all of the evidence, including the words used in the agreement, the
conduct of the parties, and the explanations offered by the parties,” as well as “any
prior course of dealing between the parties, customary and known practices in the
telephone industry, and whether technical terms or words of art were used that were
intended to carry a specialized meaning.” Dkt. 241 at 14. Thus, the jury would have
considered the extrinsic evidence in determining the meaning attached by the parties.
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And it necessarily had to do so before it could apply contra preferentum under the last
paragraph of Instruction No. 12. The jury was instructed to apply that doctrine only if
the parties did not have the same understanding of the terms (Instruction No. 11), and if
Sprint failed to show that Middle Man was aware or had reason to know of Sprint’s
understanding of the terms (Instruction No. 12).
The basis of Sprint’s complaint is not entirely clear, but seems to be based in part
on the order of the instructions, and the fact that the “extrinsic evidence” instruction
(No. 13) was given after the contra preferentum instruction (No. 12). See Dkt. 249 at 11. To
the extent that is a source of complaint, it is unavailing, as the jury was told that “[n]o
single instruction or smaller group of instructions states the law; you must consider all
the instructions as a whole.” Dkt. 241 at 2. Sprint also complains that Instruction No. 12
“directed the jury to … assume that the parties assigned the terms a contrary meaning
at the time they entered into the contract….” Id. But Instruction No. 11 told the jury it
“must first determine whether, at the time the agreement was made, the parties had a
common understanding” of the contract terms. Dkt. 241 at 12. Only if the jury found the
parties attached different meanings was it instructed that it must “next determine
whether the terms should be interpreted in accordance with the meaning attached to
them by Sprint.” Id. at 13.
Sprint also objects to the court’s failure to give its proposed instruction 14 (Dkt.
234) telling the jury that Middle Man’s interpretation had to be reasonable to be
credited. Aside from the fact the proposed instruction was not an even-handed
statement of law (it contained no requirement that Sprint’s interpretation be
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reasonable), Sprint makes no showing that the failure to give this instruction was in any
way prejudicial to Sprint.
2. Exclusion of Rule 609 evidence. Sprint argues the court committed prejudicial
error by excluding evidence of a prior conviction that Sprint sought to introduce. As
indicated in the court’s prior order (Dkt. 232), Sprint sought to show that Brian Vazquez
was convicted in 2004 of the misdemeanor offense of obstruction of a law enforcement
officer by making false statements, which resulted from Vazquez using his brother’s
name in the course of an arrest. Vazquez was sentenced to probation and successfully
completed it. Dkt. 232 at 2. The court excluded the evidence under Rule 609(b)(1),
finding there was a danger of unfair prejudice given the remoteness in time of the
incident and its lack of relevance to the dispute over the Terms and Conditions of the
contract. An additional consideration was that Sprint had already made suggestions of
fraud to the jury when that was not an issue in the case. Sprint makes no showing that
this ruling was error, let alone prejudicial error. It notes that the conviction was barely
outside the 10-year limit of Rule 609(b) and argues that defense counsel “seized upon
this fortuitous one-month window” to argue for its exclusion. Dkt. 249 at 13. Inasmuch
as “seizing upon” this “fortuity” is another way of saying that defense counsel asked
that the rule be applied, and in light of the fact that the conviction was not even
tangentially related to any substantive issue in the case, Sprint has failed to show that
exclusion of the evidence was an abuse of discretion or that it warrants a new trial.
3.

Admission of “dispute resolution” testimony.

Sprint contends the court

erroneously allowed Brian Vazquez to testify that Sprint did not follow the dispute
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resolution procedures in the Terms and Conditions. Sprint acknowledges that the court
eventually instructed the jury to disregard this testimony, but contends the instruction
came too late because the testimony had already “poison[ed] the well.” Dkt. 249 at 19.
Even assuming error on this point, Spring makes no credible showing of
prejudice. It is true that the jury heard a limited amount of this testimony, but the court
later told the jury that Sprint’s actions concerning dispute resolution were not an issue
in the case. See Dkt. 248 at 18 (testimony suggesting Sprint breached the agreement “has
nothing to do with any issue in this case. And so I am instructing you to disregard that
testimony in your deliberations.”). The court sees no reason why the jury would not
have been able to follow that its instruction. See United States v. Dahda, 853 F.3d 1101,
1117 (10th Cir. 2017) (court presumes the jury follows its instructions in the absence of
overwhelming probability to the contrary) (citations omitted).
4. Cumulative error. Sprint argues the cumulative effect of the foregoing issues
warrants a new trial. Sprint has failed to show error or prejudice, however, that would
justify a new trial.
5. Weight of the evidence. Finally, Sprint argues that the jury’s verdict was against
the weight of the evidence. In so arguing, Sprint attempts to reconstruct the jury’s
thought process in rendering a verdict against Sprint. Dkt. 249 at 21-22. But the court
cannot speculate as to what particular facts swayed the jury’s determination or whether
it simply concluded that Sprint had not met its burden of showing a breach of the
agreement by a preponderance of the evidence.

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“[W]hen a new trial motion asserts that the jury verdict is not supported by the
evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly
against the weight of the evidence.” Lompe v. Sunridge Partners, LLC, 818 F.3d 1041,
1061-62 (10th Cir. 2016) (citation omitted). That is not the case here. As the Tenth Circuit
noted, the ambiguous Terms and Conditions of the contract can be reasonably
interpreted as forbidding resale of a phone only if the phone is “active” on the Sprint
network. The evidence would permit a jury to reasonably conclude that the Middle
Man phones sold by Vazquez – which Sprint deactivated and then reactivated for the
new purchasers - were not “active” within the meaning of the contract terms.
IT IS THEREFORE ORDERED this 26th day of May, 2017, that Sprint’s Motion
for New Trial (Dkt. 249) is DENIED.
___s/ J. Thomas Marten_____
J. THOMAS MARTEN, JUDGE

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