Ng v. Schram

Filing 93

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, Ng's motion for judgment as a matter of law or, in the alternative, for a new trial is denied. The Clerk of Court is respectfully requested to close the motion at docket number 78. (Signed by Judge Ronnie Abrams on 7/31/2014) (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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BARNEY J. NG, as the Sole Trustee of the
Barney J. Ng Living Trust,

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Plaintiff,
No. 10-cv-8347-RA
-v-

MEMORANDUM OPINION AND
ORDER

STEPHEN SCHRAM,
Defendant.

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RONNIE ABRAMS, United States District Judge:
Plaintiff Barney Ng brought this action against Defendant Stephen Schram seeking
enforcement of Schram's personal guarantee of a $5 million promissory note. Schram denied
liability and asserted a counterclaim against Ng based on an alleged separate agreement releasing
him from the guarantee. A four-day jury trial was held in November 2013, and judgment was
entered for Schram on December 11, 2013. Ng now moves for judgment as a matter oflaw or, in
the alternative, for a new trial. The motion is denied.

BACKGROUND
This case raised a difficult question about the applicability of the parol evidence rule
under Wyoming law. The Court assumes familiarity with its prior rulings and the underlying
facts. In short, on September 30, 2013, the Court denied the parties' cross-motions for summary
judgment, concluding that although the guarantee at issue was a valid contract as a matter oflaw,
Schram had raised a genuine issue of material fact as to whether the parties had also formed a
separate agreement releasing Schram from payment of the guarantee. In so doing, the Court,
relying on the Wyoming Supreme Court's decision in Belden v. Thorkildsen, 156 P.3d 320, 32223 (Wyo. 2007), rejected Ng's argument that the parol evidence rule precluded consideration of
the purported release agreement when assessing the enforceability of the guarantee. Concluding

that the release agreement-if one was found to exist-was a separate and distinct contract not
inconsistent with Schram's guarantee, the Court held that extrinsic evidence may be considered
in determining the enforceability of the guarantee. (9/30/2013 Opinion & Order at 19-21.)
Ng has since attempted to relitigate this ruling at numerous junctures-in motions in
limine, with regard to proposed jury instructions, and now, in the instant motion. (Mot. for

Summ. J. at 17-22; First Mot. in Limine at 5-10; Second Mot. in Limine at 1-2, 13-14; Pl.'s
Proposed Jury Instructions Nos. 39, 42; Pl.'s Mem. of Law at 10-16.)
At trial, the jury was instructed as follows:
The Court has already determined as a matter of law that the
guarantee at issue in this case is a valid contract. ... [Y]ou are not
to consider any evidence you have heard about the existence or
enforceability of the guarantee for the purpose of determining the
existence or validity of that guarantee. . .. [Y]ou can consider this
evidence to determine whether a contract separate and distinct
from and independent of the guarantee was created, even if it
relates to the same general subject matter and grows out of the
same transaction, as long as it is not inconsistent with the
guarantee.
(Tr. 701 :7-702:2.)

The jury subsequently returned a unanimous verdict in Schram's favor,

concluding that Schram "prove[d] a contract whereby plaintiff Barney Ng agreed to release Mr.
Schram from the guarantee provision of the separation agreement as certain conditions were
met" and that Schram "prove[ d] that the conditions for the release of his guarantee were met,"
and awarding nominal damages. (Id. at 715:4-22.)
DISCUSSION

Ng moves for judgment as a matter of law pursuant to Federal Rule 50(b), or
alternatively, for a new trial pursuant to Federal Rule 59, asking the Court to "examine its
decision that Schram could prove a release agreement separate and distinct from, and
independent of, the written guarantee." (Pl.'s Mem. of Law at 2.) Ng's request is, in effect, a
motion for reconsideration of the Court's order denying Ng's motion for summary judgment.
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See Algie v. RCA Global Commc'ns, Inc., 891 F. Supp. 875, 881-82 (S.D.N.Y. 1994), aff'd, 60
F.3d 956 (2d Cir. 1995); cf. Church of Scientology Int'l v. Time Warner, Inc., No. 92 Civ. 3024
(PKL), 1997 WL 538912, at *3-4 (S.D.N.Y. Aug. 27, 1997) (collecting cases). 1 Although the
Court has "absolute authority" to reconsider its earlier rulings up until the filing of an appeal,
Williams v. Cnty. of Nassau, 779 F. Supp. 2d 276, 280 (E.D.N.Y. 2011), "[r]econsideration of a
court's previous order is an extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources," and Local Rule 6.3 must be narrowly
construed "so as to avoid duplicative rulings on previously considered issues, and to prevent the
rule from being used as a substitute for appealing a final judgment," Parrish v. Sollecito, 253 F.
Supp. 2d 713, 715 (S.D.N.Y. 2003) (internal quotation marks omitted) (quoting In re Health
Mgmt. Sys., Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000).
Ng argues that the Court erred in concluding that there may have existed a release
agreement separate and distinct from the guarantee, and in allowing the admission of parol
evidence for the jury to decide that issue. (Pl.'s Mem. of Law at 2, 10-16.) In order to justify
reconsideration based on clear error, however, the moving party "must demonstrate controlling
law or factual matters put before the court on the underlying motion that ... the court overlooked
and that might reasonably be expected to alter the court's decision." Parrish, 253 F. Supp. 2d at
715. Ng has failed to do so here. Rather, he has simply recycled arguments that the Court
rejected previously. He may raise these issues on appeal.
Ng also argues, unpersuasively, that Schram's testimony at trial contradicted his
deposition testimony, and that such "perjurous trial testimony"-together with the Court's
decision "not to apply the parol evidence rule,"-warrants a new trial. (Pl. 's Mem. of Law at 21

Ng does not appear to dispute that he is indeed asking the Court no more than to reconsider its prior ruling. (See,
Pl. 's Mem. of Law at l ("Before empaneling a jury, this Court decided that the release agreement proffered by
Defendant Stephen Schram was not inconsistent with the written guarantee. It is this decision that Plaintiff Barney
Ng now challenges as error by this motion for judgment as a matter of law."), 8-9 (citing, inter alia, cases discussing
reconsideration).)

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4, 9.) The alleged inconsistencies Ng cites do not warrant a new trial. As the court noted in
Ricciuti v. N.Y. City Transit Auth., 70 F. Supp. 2d 300, 327 (S.D.N.Y. 1999), "contrasts in
testimony furnished legitimate grist for the cross-examiner's mill, and laid the foundation for the
argument ... counsel made to the jury that the trial testimony should be disbelieved. . . . [the]
difficulty is that [he] did not persuade the jury."

So was the case here.

Ng had ample

opportunity to cross-examine Schram, which he did vigorously. After assessing the testimony of
the witnesses along with the documentary evidence, the jury credited Schram's testimony and
found in his favor. This Court has also weighed the evidence, and finds no error or injustice
which would warrant a new trial. See Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.
1992) ("[A] trial judge hearing a motion for a new trial 'is free to weigh the evidence [herself]
and need not view it in the light most favorable to the verdict winner."'); Smith v. Lightning Bolt
Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988) ("The district court ordinarily should not grant a
new trial unless it is convinced that the jury has reached a seriously erroneous result or that the
verdict is a miscarriage of justice.").
CONCLUSION

For the foregoing reasons, Ng's motion for judgment as a matter of law or, in the
alternative, for a new trial is denied. The Clerk of Court is respectfully requested to close the
motion at docket number 78.
SO ORDERED.
Dated:

July31,2014
New York, New York

Ro 1
rams
United States District Judge

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