Minter v. Wells Fargo Bank, N.A. et al

Filing 680

MEMORANDUM. Signed by Judge William M Nickerson on 8/28/13. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DENISE MINTER et al.

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* Civil Action WMN-07-3442
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v.
WELLS FARGO BANK, N.A. et al.
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MEMORANDUM
Before the Court is a motion for a “new trial” filed by
Plaintiffs.
for review.1

ECF No. 657.

The motion is fully briefed and ripe

Upon review of the papers, facts, and applicable

law the Court determines that (1) no hearing is necessary, Local
Rule 105.6, and (2) the motion will be denied.

1

Defendants have also filed a motion for leave to file a
surreply to respond to new arguments raised in Plaintiffs’ reply
memorandum. ECF No. 677. Plaintiffs have not opposed the
motion but assert that the surreply “is not inappropriate,
provided that this Court also holds a hearing to address the
numerous, complex and interrelated issues that have been raised
in the parties Rule 59 briefing.” ECF No. 678 at 1 (emphasis in
original). The Court agrees – without condition - that
Defendants’ surreply is not inappropriate and, indeed, is
necessary to give them an opportunity to address Plaintiffs’ new
arguments concerning Wells Fargo’s decision to withdraw from its
joint ventures, the Court’s class definition, and the Court’s
alleged plain error. Accordingly, Defendants’ motion for leave
will be granted. As for Plaintiffs’ repeated request for a
hearing on their motion, the Court does not believe that a
hearing would assist with the resolution of the issues raised,
particularly since the parties have submitted such thorough and
high-quality briefing.

I.

FACTUAL AND PROCEDURAL HISTORY
Over the course of 17 days between May 6, 2013, and June 6,

2013, the parties tried two of Plaintiffs’ theories that
Defendants violated § 8(c) of the Real Estate Settlement
Procedures Act (RESPA) to a jury, which returned a verdict in
favor of Defendants on both.2

With regard to the second of these

theories, the jury found that Defendants did not violate RESPA,
in part because Plaintiffs failed to prove that Long & Foster
Real Estate, Inc., (Long & Foster) “referred or affirmatively
influenced the Plaintiffs to use Prosperity Mortgage Company for
the provision of settlement services.”
Sheet, Question No. 3) at 2.

ECF No. 615 (Verdict

Plaintiffs now seek relief from

that finding so that they, and tens of thousands of absent class
members, ECF No. 657-1 at 1 & 27; ECF No. 673 at 16 n.10, can
proceed to try alternative claims under § 8(a) of RESPA.3

It is

2

Plaintiffs appear to suggest that the jury shirked its
obligation to thoroughly, and in good faith, consider the
evidence in this case by repeatedly commenting on their short
period of deliberation which, Plaintiffs make a point of noting,
“included lunch and a smoking break.” ECF No. 657-1 at 4; see
also id. at 19. Putting aside the disrespectful nature of
Plaintiffs’ suggestion, the undersigned finds the length of the
jury’s deliberations unremarkable given the threshold questions
they answered, and consistent with his own opinion of the merits
of Plaintiffs’ case as a whole.
3

According to Plaintiffs, § 8(a) represents the “heartland” of
RESPA. It provides:
No person shall give and no person shall accept any
fee, kickback, or thing of value pursuant to any
2

this desired trial of their § 8(a) claims which Plaintiffs have
dubbed a “new trial” for the purposes of their motion under
Federal Rule of Civil Procedure 59.4
Plaintiffs assert that a new trial is warranted here for
two reasons.

First, they argue that the jury’s verdict runs

counter to the clear weight of the evidence.

Second, they argue

that counsel for Long & Foster admitted during closing argument
that his client did refer Plaintiffs to Prosperity Mortgage
Company (Prosperity).

The contents of the record are not

seriously disputed by Defendants, only the effect which it must
be given.

agreement or understanding, oral or otherwise, that
business incident to or a part of a real estate
settlement service involving a federally related
mortgage loan shall be referred to any person.
12 U.S.C. § 2607(a). The Court has not certified a class
with regard to Plaintiffs’ claims under § 8(a).
4

In their reply briefing, Plaintiffs assert that their § 8(a)
claims must be tried in 2013 in light of Wells Fargo’s
announcement in July that it is ending its participation in
joint ventures such as Prosperity. ECF No. 673 at 3-4. The
Court fails to see how Wells Fargo’s decision to exit the joint
venture demands that their claims be tried in the next threeand-a-half months and considers Plaintiffs’ suggestion that such
a timeframe could be met fanciful, to say the least,
particularly given their stated intention to seek certification
of a class under § 8(a). See ECF No. 673 at 16 n.10 (“As a
result of the § 8(c) judgment, certification of a § 8(a) class
is thus again a live issue, but the first step is ensuring that
the § 8(a) claims of the Named Plaintiffs may go forward, hence
the Motion.”).
3

II.

LEGAL STANDARD

Federal Rule of Civil Procedure 59(a) provides, in relevant
part:
(1)

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 follows:
(A) after a jury trial, for any reason which a new trial
has heretofore been granted in an action at law in
federal court . . .

“[T]he granting or refusing of a new trial is a matter resting
in the sound discretion of the trial judge, and [] his action
thereon is not reviewable on appeal, save in the most
exceptional circumstances.”

Aetna Cas. & Sur. Co. v. Yeatts,

122 F.2d 350, 354 (4th Cir. 1941); see also Whilhelm v. Blue
Bell, Inc., 773 F.2d 1429, 1433 (4th Cir. 1985).

Thus, “[o]n

such a motion it is the duty of the judge to set aside the
verdict and grant a new trial, if he is of opinion that the
verdict is against the clear weight of the evidence, or is based
upon evidence which is false, or will result in a miscarriage of
justice.”

Yeatts, 122 F.2d at 352 (emphasis added).

The court

“may weigh evidence and assess credibility in ruling on a motion
for a new trial.”

Wilhelm, 773 F.2d at 1433.

At bottom,

however, in evaluating a motion for a new trial, the court’s
focus should be on whether substantial justice has been done;
that is, whether a new trial is required to prevent a
miscarriage of justice.

Yeatts, 122 F.2d at 354; 11 Charles

4

Alan Wright, Arthur R. Miller & Mary K. Kane, Federal Practice
and Procedure § 2803 (2d ed. 1995) (“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.”) & § 2805 (“The court has the power and duty to order a
new trial whenever, in its judgment, this action is required in
order to prevent injustice.”).
III. DISCUSSION
Plaintiffs’ briefing – in particular, their reply - is
littered with accusations of error on the part of the Court and
the jury.

See ECF No. 657-1 at 12-17.

Plaintiffs assert that

the Court’s “‘error’ was in submitting Question No. 3 to the
jury in the first place,” ECF No. 673 at 12 (emphasis in
original), and the jury’s error was rendering a “plainly
incorrect” answer to that question against what Plaintiffs are
now calling the “clear – in fact undisputed - weight of the
evidence.”

ECF No. 657-1 at 1.

Thus, Plaintiffs argue that the

Court must grant them a “new trial” to avoid the manifest
injustice of resolving their § 8(a) claims on, what they deem to
be, “the basis of a lie.”

ECF No. 673 at 3.

Plaintiffs’ cries of injustice ring hollow, however,
because it was they who suggested that a question similar to
Question No. 3 be included on the verdict sheet at all – a
request which the Court obliged by posing such a question in

5

almost exactly the form they requested.

Compare ECF No. 556

(Plaintiffs’ Proposed Verdict Form) at 1 (“Do you find, by a
preponderance of the evidence, that Class Representatives Jason
and Rachel Alborough and Denise Minter were referred by Long &
Foster Real Estate, Inc. to Prosperity Mortgage Company
(“Prosperity”)?”), with ECF No. 615 (Verdict Form Submitted to
Jury) at 3 (“Have Plaintiffs proved, by a preponderance of the
evidence, that Long & Foster Real Estate, Inc., referred or
affirmatively influenced the Plaintiffs to use Prosperity
Mortgage Company for the provision of settlement services?”).
Plaintiffs’ submission of Question No. 3 and their failure to
object to, or seek revision of, that question after all of the
supposedly obvious indications that the question was no longer
necessary, is a sufficient basis for denying their motion.5

5

See

Plaintiffs inject a new argument into their reply, namely that
the jury’s answer to Question No. 3 was inconsistent with the
Court’s redefinition of the class. ECF No. 673 at 5-6. Before
trial, the Court limited the class to those individuals referred
to Prosperity by Long & Foster, ECF No. 541 at 16-17; ECF No.
635 ¶ 4. As a result, Plaintiffs argue that the jury’s response
to Question No. 3 was erroneous, if it should have been
submitted at all. ECF No. 673 at 5-6. The Court’s limitation
of the class in this regard, however, was not intended to
eliminate the requirement that Plaintiffs prove that a referral
occurred or to in any way suggest that the evidence on that
point was undisputed in the same manner as was the Court’s
limitation of the class to those with federally-related
mortgages. See ECF No. 534 at 2 n.5. Rather, the Court’s
redefinition was intended to tailor a manageable class that fit
both of Plaintiffs’ § 8(c) theories; that is, it was a shorthand
way of capturing those individuals who walked into a Long &
Foster office and ended up with a Wells Fargo mortgage.
6

Calef v. FedEx Ground Packaging System, Inc., 343 F. App’x 891,
905 (4th Cir. 2009) (unpublished) (affirming denial of new trial
where appellant failed to object to special interrogatories);
Castle v. Leach Co., 4 F. Supp. 2d 128, 130 (N.D.N.Y. 1998)
(holding that plaintiffs waived right to seek new trial when
they did not object to the verdict sheet, which mirrored the
plaintiff’s proposal, before it was submitted to the jury); 11
Wright, Miller & Kane Federal Practice and Procedure § 2805 (“A
principle that strikes very deep is that a new trial will not be
granted on grounds not called to the court’s attention during
the trial unless the error was so fundamental that gross
injustice would result.”).

The only reasonable conclusion that

the Court can draw from these circumstances is that whether
Plaintiffs were referred was a fact that Plaintiffs recognized
as disputed right up until the moment they disagreed with the
jury’s resolution of that issue in favor of Defendants.
For similar reasons, Plaintiffs’ alternative argument also
fails.

Plaintiffs assert that a statement made by Long &

Foster’s counsel, Jay Varon, during closing arguments
constituted a judicial admission that his client referred
Plaintiffs to Prosperity which “removed that fact from

Plaintiffs appeared to understand that at the time because their
proposed verdict form was submitted five days later.
Plaintiffs’ argument on this point is thus without merit.

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contention” and thus eliminated any need to pose Question No. 3
to the jury.

ECF No. 657-1 at 24.

Whether to treat a statement

as a judicial admission that has the effect of excluding certain
evidence is a determination that is within the court’s
discretion.

Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 264

(4th Cir. 2004) (quoting MacDonald v. Gen. Motors Corp., 110 F.
3d 337, 340 (6th Cir. 1997)); United States v. Belculfine, 527
F.2d 941, 944 (1st Cir. 1975) (citing United States v. Cline,
388 F.2d 294, 296 (4th Cir. 1968) (holding that whether “to
treat, as conclusive, concessions made by Government counsel . .
. was a matter for the judgment of the judge”)).

When deciding

how to exercise that discretion, a court should be driven by
“considerations of fairness.”

Belculfine, 527 F.2d at 944.

And, while a judicial admission by counsel is “usually treated
as absolutely binding,” New Amsterdam Casualty Co. v. Waller,
323 F.2d 20, 24 (4th Cir. 1963) (emphasis added), such an
admission must be “deliberate, clear, and unambiguous” before it
can be given preclusive effect.

Fraternal Order of Police Lodge

No. 89 v. Prince George’s Cnty., 608 F.3d 183, 190 (4th Cir.
2010) (quoting Meyer, 372 F. 3d at 265 n.2).
Plaintiffs contend that counsel’s statement during closing
arguments bound Defendants.

There, Mr. Varon said:

First of all, at the outset, I would just ask you to
ask yourselves if your assessment of the witnesses,
the documents, of their credibility, of what you heard

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in this case really matches what Mr. Gordon told you.
It’s your job to weigh what occurred here.
And frankly, I’m sure you won’t be surprised, I have a
lot of differences, and differences of recollection,
differences in what was said.
I think that the only thing I agree way for sure is
that Long & Foster did refer the named plaintiffs to
Prosperity. There’s no dispute about that.
Taken alone, Mr. Varon’s statement could possibly be considered
an admission.

But, giving due regard to the context of this

litigation and “considerations of fairness,” the Court is
troubled by the fact that the supposed admission is being raised
for the first time post-verdict.

While the time between Mr.

Varon’s statement and submission of the case to the jury was
indeed short, the Court believes it was a sufficient amount of
time for Plaintiffs to reconsider the task with which the jury
would be charged in light of counsel’s statement, and to raise
the supposed admission with the Court and with counsel.
Obviously, Plaintiffs did not and, as the Sixth Circuit has
noted in similar circumstances, “[t]he conclusion which urges
itself at this time is that it occurred to no one at the trial
that the remarks in question constituted an admission of the
nature here urged.”6

Harrison Const. Co. v. Ohio Turnpike

Comm’n, 316 F.2d 174, 177 (6th Cir. 1963).

6

As a result, the

For the same reason, the Court rejects Plaintiffs’ argument
that Defendants made similar admissions in their pretrial
papers. ECF No. 657-1 at 12.
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Court believes it would be decidedly unfair and inconsistent
with the purpose of motions under Rule 59 to allow Plaintiffs to
do now, what they failed to do at trial.

See Sequa Corp. v. GBJ

Corp., 156 F.3d 136, 144 (2d Cir. 1998) (“Rule 59 is not a
vehicle for relitigating old issues, presenting the case under
new theories, securing a rehearing on the merits, or otherwise
taking a ‘second bite at the apple.’”).
IV.

CONCLUSION
In sum, the Court does not quarrel with Plaintiffs’

assertion that “justice abhors resolving claims and
extinguishing rights on the basis of a lie,” ECF No. 673 at 3,
but reminds them that justice similarly abhors gamesmanship.
What a litigation strategy it would be if parties could invite
the court to follow a course of action that they would later
label as erroneous so as to save themselves from an unfavorable
verdict.

This Court will not participate in what appears to be

a game of “gotcha.”7

For the foregoing reasons, Plaintiffs’

7

As defined by The American Heritage Dictionary of the English
Language (4th ed. 2000) the term “gotcha” has uncanny relevance
to the present motion. That volume explains the term as “[a]
game or endeavor in which one party seeks to catch another out,
as in a mistake or lie.” Id. (emphasis added). While Plaintiffs
assert it was the Court’s mistake in submitting Question No. 3
and the jury’s lie in answering that question as it did, the
real trick in this instance is that Plaintiffs have failed to
acknowledge (a lie of omission?) their own mistake in requesting
that the question be asked at all.

10

motion for a new trial will be denied and judgment on their
§ 8(a) claims will be entered in favor of Defendants.8
A separate order will issue.

_____________/s/_________________
William M. Nickerson
Senior United States District Judge

August 28, 2013

8

Plaintiffs have acknowledged that their inability to establish
that they were referred to Prosperity by Long & Foster is
dispositive of their claims under § 8(a). See, e.g., ECF No.
673 at 2-3 (Plaintiffs “are bound by the § 8(c) judgment and,
without relief from the jury’s erroneous answer to Question No.
3, their § 8(a) claims will also be denied.”).
11