ALEXIOU v. MOSHOS
Filing
69
MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 12/17/09. 12/17/09 ENTERED AND COPIES EMAILED.(rf, )
IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA T H A L IA ALEXIOU v. A N G E L O MOSHOS : : : N O . 08-5491 C IV IL ACTION
M E M O R A N D U M AND ORDER E L IZ A B E T H T. HEY U N IT E D STATES MAGISTRATE JUDGE In this diversity contract action, Plaintiff Thalia Alexiou brought suit against D e f e n d a n t Angelo Moshos for damages allegedly arising out of his breach of a September 1 5 , 2004, agreement pursuant to which Angelo loaned money to Thalia and her husband, L a z a ro s Moshos (Angelo's brother), to buy a property in Philadelphia, Pennsylvania.1 On O c to b e r 29, 2009, judgment was entered in Angelo's favor, based on the jury's answers to in te rro g a to rie s .2 Presently before the court are three post-verdict motions and c o rre sp o n d in g responses and replies to those motions Thalia's Motion for Entry of J u d g m e n t Pursuant to Rule 50(b) (Docs. 53, 66 and 67), Thalia's Motion to Alter or A m e n d Judgment Pursuant to Rule 59(c) (Docs. 54, 65 and 68), and Angelo's Motion to
A s this action concerns a dispute among family members, I will refer to the parties b y their first names to avoid confusion. The trial evidence was conflicting as to whether T h a lia and Lazaros were legally married, but this fact is not crucial to the determination o f the motions at issue. A s will be discussed more fully below, the jury found that Angelo owed Thalia $ 9 0 ,0 0 0 for breach of contract, but that the sum was set-off by $94,000 Thalia owed A n g e lo for prior loans he had made to Thalia and Lazaros.
2
1
Alter or Amend Judgment and to Tax Costs Against Plaintiff (Docs. 55 and 64). For the f o llo w in g reasons, I will deny Thalia's motions, and grant Angelo's motion only as to the a w a rd of costs. I. F A C T S AND PROCEDURAL BACKGROUND P u rs u a n t to the aforementioned agreement, Thalia and Lazaros agreed to c o n trib u te $90,000, and Angelo agreed to contribute $150,000, towards the purchase of a p ro p e rty at 1001 10th Avenue in Philadelphia, Pennsylvania. Thalia commenced this a c tio n in state court seeking to recover, among other amounts, the $90,000 she and L a z a ro s contributed toward the purchase of the property, and Angelo removed the matter to federal court on November 20, 2008. See Doc. 1. The matter proceeded to trial on O c to b e r 26, 2009. At trial, both Thalia and Angelo testified at length concerning the parties' o b lig a tio n s under the agreement. Trial stipulations and testimony revealed that under the a g re e m e n t Thalia and Lazaros would have three months to secure a mortgage and repay th e $150,000 to Angelo, at which time the name on the deed would be changed from A n g e lo to Lazaros and Thalia. N.T. 10/26/09 at 29. If Lazaros and Thalia failed to repay A n g e lo within three months, or if they failed to cover the payments on Angelo's $150,000 m o rtg a g e and other expenses for a total of two months, then Angelo would have the right to sell the property and return Lazaros's and Thalia's $90,000 investment. If the property
2
sold for less than its purchase price, the "appropriate amount" would be deducted from L a z a ro s 's and Thalia's investment. At the closing in October 2004, the property was placed in Angelo's name. N.T. 1 0 /2 6 /0 9 at 29. Thalia and Lazaros were unsuccessful in obtaining financing, were u n a b le to buyout Angelo for $150,000, and were unable to make the required payments. Id. at 28-29. In December 2004, Lazaros was killed in a car accident. Id. Thereafter, T h a lia did not make any payments under the agreement. In February 2006, Angelo sold th e property for $375,000. Id. at 29. He did not pay Thalia any of the proceeds from the s a le . Id. The parties also testified regarding various sums of money Angelo paid to Thalia a n d Lazaros, mostly prior to the agreement. N.T. 10/26/09 at 87-101 (Thalia); N.T. 1 0 /2 7 /0 9 (Vol. I) at 8-9, 22-25, 75, 86-89 (Angelo). The sums were paid by check, one f o r $5,000 made payable to Thalia and the remainder made payable to Lazaros, but all of th e m were endorsed and deposited by Thalia into her bank account, which she and L a z a ro s used for personal expenses. N.T. 10/26/09 at 95; N.T. 10/27/09 (Vol. I) at 57. The words "personal loan" were written on the face of the majority of the checks. Id. Angelo requested that the jury be instructed that it could set off amounts Angelo o w e d under the agreement by amounts Thalia owed Angelo based on the loans. Over T h a lia 's objection that there was insufficient evidence that she owed any debt to Angelo, I instructed the jury that it should determine whether Angelo proved the affirmative
3
defense of set-off by a preponderance of the evidence and, if do, the amount of the seto f f . N.T. 10/27/09 (Vol. II) at 37-40, 82-83. On October 27, 2009, the jury returned a defense verdict. Specifically, in answers to interrogatories, the jury found that Thalia had proven her breach of contract claim by a p re p o n d e ra n c e of the evidence and awarded damages in the amount of $90,000. See Doc. 4 9 at Nos. 1-2. The jury further found that Angelo had proven his affirmative defense of s e t-o f f by a preponderance of the evidence, and determined the amount of the set-off to b e $94,000. Id. at No. 4. Based on the jury's determination, I entered judgment in favor o f Defendant Angelo on October 29, 2009. See Doc. 48. O n November 10-11, 2009, the parties filed the present post-trial motions. See D o c s . 53-55. In addition, defense counsel filed a motion to withdraw as attorney. See D o c . 56. On November 16, 2009, following a hearing, I denied the motion to withdraw a n d gave the parties until November 30, 2009, to respond to the remaining post-trial m o tio n s , and until December 7, 2009, to file any replies. See Doc. 59. The parties c o m p lie d with these deadlines and the remaining post-trial motions are now ripe for re v ie w . II. D ISC U S S IO N A. T h a lia 's Motion for Entry of Judgment Pursuant to Rule 50(b)
In this motion, Thalia argues that, notwithstanding the jury's determination, she is e n title d to judgment as a matter of law, renewing her argument at trial that the evidence
4
of set-off was insufficient to go to the jury. Federal Rule of Civil Procedure 50(b) p ro v id e s that a party may file a post-trial motion for judgment as a matter of law. See F e d . R. Civ. P. 50(b). In ruling on a Rule 50(b) motion, courts must determine "whether v ie w in g the evidence in the light most favorable to the nonmovant and giving it the a d v a n ta g e of every fair and reasonable inference, there is insufficient evidence from w h ic h a jury reasonably could find liability." Eshelman v. Agere Systems, Inc., 554 F.3d 4 2 6 , 433 (3d Cir. 2009) (quoting Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3 d Cir. 1993)). Judgment as a matter of law should be granted "where the record is c ritic a lly deficient of the minimum quantum of evidence in support of the verdict." Id. (q u o tin g Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083 (3d Cir. 1995)). "The question is not whether there is literally no evidence supporting the unsuccessful p a rty, but whether there is evidence upon which a reasonable jury could properly have f o u n d its verdict." Id. (citing Gomez, 71 F.3d at 1083). Furthermore, "[i]n performing th is narrow inquiry, we must refrain from weighing the evidence, determining the c re d ib ility of witnesses, or substituting our own version of the facts for that of the jury." Id. (citing Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)). A set-off allows adjustments of mutual debts arising out of separate transactions b e tw e e n the parties. See Folger Adam Security, Inc. v. DeMatteis/MacGregor, JV, 209 F .3 d 252, 259 (3d Cir. 2000) (set-off applies in "situations where both plaintiff and d e f e n d a n t have [claims] against each other . . . which can be mutually deducted whenever
5
either one begins a suit against the other."). "Under Pennsylvania law, a set-off is a c c o m p lish e d when a creditor gives `sufficient evidence of intent' to make a set-off.'" IR S . v. Norton, 717 F.2d 767, 772 (3d Cir. 1983) (quoting Goldstein v. Jefferson Title & T ru s t Co., 95 Pa. Super. 167, 170 (1928)). Also under state law, "the retention of a d e b to r's funds by a creditor provides sufficient evidence of an intent to set-off." Id. (c itin g Pittsburgh Nat'l Bank v. United States, 657 F.2d 36 (3d Cir. 1981)). Thalia argues that the jury's verdict regarding set-off was unsupported because all o f the evidence at trial, with the exception of a single check for $5,000 made out to her, s h o w e d that the loans at issue were made by Angelo to his brother Lazaros, with no e x p e c ta tio n or agreement that the sums would be repaid by Thalia. See Doc.53 at 7-9; D o c . 67 at 1-7. In support of this argument, Thalia relies on testimony elicited from A n g e lo during the defense case in which Angelo repeatedly testified that he loaned m o n e y to his brother. Typical of such testimony is the following: Q: N o w can you tell me, at the time that Thalia was together w ith Lazaros, did there come a time when you started le n d in g Lazaros a lot of money? Y e s . . . . [H]e run out of the money he got, and at one p o in t around 2000, he started asking for money. A n d did he agree to pay you this money back? Y e s . He did agree. And, as a matter of fact, I had the s p e c if ic discussions that, I'll give you the money, h o w e v e r, you have to remember, now I'm married, I may re tire , if things don't go well with IBM, and I may need th e money quickly. 6
A:
Q: A:
Q: A: Q: A: Q:
A n d did he agree? Y es. And did you charge your brother interest? N o. A n d is that why on these checks we've seen, you wrote p e rs o n a l loan? Y e s , sir.
A: **** Q:
S ir, this is from you and your wife's account, $10,000. It s a ys personal loan, and it's endorsed by Thalia. Was this a lo a n that you made to your brother? Y e s , sir. D id he promise to pay it back? Y es.
A: Q: A: **** Q:
S ir, I think you testified that this was a bank check that yo u secured and gave to Lazaros, right? Y es. W h a t was it for? It was a loan to my brother.
A: Q: A:
N .T . 10/27/09 (Vol. I) at 8-9, 24-25, 75. In addition, Angelo testified that he didn't know th a t Thalia and Lazaros were married, id. at 57, and he conceded the possibility that
7
Thalia may not have known that the money she and Lazaros received in the form of c h e c k s from Angelo belonged to Angelo and not to Lazaros. Id. at 89-90. Based on such tria l testimony, Thalia argues that the loans (with one $5,000 exception) were made e x c lu s iv e ly between Angelo and his brother Lazaros, that there was never any agreement th a t Thalia would repay the loans, and that the jury's finding to the contrary is therefore b a s e le ss . Angelo counters that the there was ample evidence at trial for the jury to have re n d e re d a verdict in his favor on the issue of set-off. See Doc. 66 at 3-12. For example, T h a lia repeatedly stated that she and Lazaros were the recipients of multiple checks from A n g e lo to pay their personal living expenses during their marriage; that she endorsed and d e p o s ite d all of the checks, many of which were marked "personal loan," into her own b a n k account; and that she personally benefitted from the payments. See, e.g., N.T. 1 0 /2 6 /0 9 at 95; N.T. 10/27/09 (Vol. I) at 57. For example, Thalia testified as follows: Q: A: Q: W h e n did you first get together with Lazaros? T h e end of 1997. A n d is it fair to say that when he would bring checks that m a d e payable to Lazaros with the word "personal loan" th e re , you'd put them in your checking account to pay yo u r living expenses, correct? O u r living expenses. O u rs being yours and Lazaros[']? A n d Lazaros. 8
A: Q: A:
**** Q: A: Q: A: Q: T h is is [the check dated] November 2nd, 2004, correct? Y es. S h o rtly after this agreement, correct? Y es. A n d it's you agree this $20,000 came from [Angelo] to L a z a ro s and then if we turn the document, that's your s ig n a tu re on the check, isn't it, ma'am? Y es. A n d the account number there . . . that's your Wachovia a c c o u n t, isn't it, ma'am? T h a t's correct. A n d that's the same account we've seen you paying the e x p e n s e for these buildings out of, isn't it, ma'am? Y es. It's the same account you were paying your living e x p e n s e s out of, correct? O u r living expenses, yes.
A: Q:
A: Q:
A: Q:
A: **** Q: A: Q: A:
D o you see this check [Exhibit 12], ma'am? Y es. It says right here "personal loan," yes? Y es. 9
Q: A: Q: **** A: Q:
It's payable to Lazaros? Y es. You were together with Lazaros then?
O h , yes, we were living together. I'm so sorry. A n d so this money would have gone into your joint a c c o u n t to pay your living expenses, yes? Y e s , our living expenses.
A:
N.T. 10/26/09 at 87-88, 99-100. There was also evidence that Angelo told Thalia in a le tte r after Lazaros died that he (Angelo) had claims against Thalia for repayment of the lo a n s . N.T. 10/27/09 (Vol. I) at 44-45. In her reply memorandum, Thalia argues that Angelo misunderstood or misstated h is burden of proof on the affirmative defense of set-off. See Doc. 67 at 1-7. It is true th a t defense counsel stated that the burden of proof rested with Thalia and not with A n g e lo . See, e.g., N.T. 10/27/09 (Vol. II) at 57 ("[W]e don't have to prove anything"), 5 9 ("I have no burden or proof"). However, when referring specifically to set-off, d e f e n s e counsel correctly stated that the defense had the burden. Id. at 63-64. Also, I e x p la in e d to the jury that Angelo was required to prove his affirmative defense of set-off b y a preponderance of the evidence, including that there was an agreement between T h a lia and Angelo to repay some or all of the loans. Id. at 82-83. In addition, the verdict s h e e t repeated that Angelo had to prove set-off by a preponderance of the evidence. See 10
Doc. 49 at No. 4. Under the circumstances, it cannot be said that the jury misunderstood A n g e lo 's burden of proof on the issue of set-off. T h e conflicting evidence in this case required the jury to make credibility d e te rm in a tio n s as to Thalia and Angelo's testimony. In addition to testimony regarding th e check sums and their purpose, the jury saw images of the checks, many of which were m a rk e d "personal loan" and all of which were endorsed by Thalia and deposited into her b a n k account for her and Lazaros's personal use. In addition, the jury heard Thalia's te s tim o n y that she believed that Angelo was holding over $500,000 of Lazaros's money, a n d that the checks from Angelo were drawn from this sum. N.T. 10/26/09 at 64, 83, 1 0 1 . The jury was free to make fact-finding and credibility determinations based on this e v id e n c e , including whether Angelo was actually holding Lazaros's money for him (w h ic h the jury rejected) and whether there was an understanding that Thalia as well as L a z a ro s would pay back Angelo the money he lent for their living expenses (which the ju ry accepted). T h u s , upon review of all the evidence, the jury was entitled to find that Angelo had a legitimate claim to Thalia's repayment of the loans he made to her and Lazaros. See F o lg e r Adam Security, Inc., 209 F.3d at 259; Norton, 717 F.2d at 772 (referring to P e n n sylv a n ia law on set-off). Therefore, I find that ample evidence existed at trial upon w h ic h a reasonable jury could properly have found the verdict rendered, and I will deny P la in tif f 's Rule 50(b) motion. See Eshelman, 554 F.3d at 433.
11
B.
T h a lia 's Motion to Alter or Amend Judgment Pursuant to Rule 59(e)
In this motion Thalia seeks an award of $19,854.25 in prejudgment interest. See F e d . R. Civ. P. 59(e) (post-trial motions to alter or amend must be filed within ten days of th e entry of the judgment). As a preliminary matter, Angelo disputes that a Rule 59(e) m o tio n is a proper vehicle for the motion, arguing that Thalia should instead be seeking re c o n s id e ra tio n or re-argument pursuant to Local Rule 7.1(g), and that she has failed to s ta te any basis for relief under than rule. See Doc. 65 at 2; see also Local R. Civ. P. 7 .1 (g ) ("Motions for reconsideration or reargument shall be served and filed within ten (1 0 ) days after the entry of the judgment, order, or decree concerned."). Contrary to A n g e lo 's position, the Supreme Court has explicitly held that Rule 59(e) is the proper a v e n u e by which a party must seek prejudgment interest. See Osterneck v. Ernst & W h itn e y, 489 U.S. 169, 174-76 & 176 n.3 (1989) (holding post-trial motion for d is c re tio n a ry prejudgment interest constitutes a Rule 59(e) motion, and stating in dicta th a t a motion for prejudgment interest as of right should also constitute a Rule 59(e) m o tio n ). Therefore, I find that the present motion is properly brought pursuant to Rule 5 9 (e ). Under Pennsylvania law,3 prejudgment interest is generally awarded as a legal rig h t in contract cases. See Parexel Int'l Corp. v. Feliciano, No. 04-3798, 2008 WL
T h e re is no dispute among the parties that Pennsylvania law applies to this d iv e rsity contract action. 12
3
5467609, *3 (E.D. Pa. 2008) (Joyner, J.) (citing Fernandez v. Levin, 548 A.2d 1191, 1193 (P a . 1988)); Amerisourcebergen Drug Corp. v. Meier, No. 03-6769, 2005 WL 1213913 (E .D . Pa. 2005) (Surrick, J.) ("In a contract action, the award of prejudgment interest is n o t a matter of discretion, but is a legal right."). Because Thalia prevailed on the jury in te rro g a to rie s related to her breach of contract claim in the amount of $90,000, see Doc. 4 9 at Nos. 1-2, she argues that she is entitled to prejudgment interest on that amount. H o w e v e r, Thalia's argument does not acknowledge that there are exceptions to the a w a rd of prejudgment interest in contract actions, nor does she factor in the entirety of the ju ry interrogatories. The Pennsylvania Supreme Court has adopted the Restatement (S e c o n d ) of the Law of Contracts in determining precisely when interest is recoverable in c o n tra c t actions. See North Am. Specialty Ins. Co. v. Chi-Chester Sch. Distr., No. 992 3 9 4 , 2002 U.S.Distr. LEXIS 11730, at *20 (E.D. Pa. Jan. 3, 2002) (Smith, M.J.) (citing P e n n e ys v. Pennsylvania R.R. Co., 183 A.2d 544, 546 (Pa. 1962)). Section 354 of the R e sta te m e n t (Second) provides: (1 ) If the breach [of a contract] consists of a failure to pay a d e f in ite sum of money or to render a performance with f ix e d or ascertainable monetary value, interest is re c o v e ra b le from the time of the performance on the a m o u n t due less all deductions to which the party in b r e a c h is entitled. In any other case, such interest may be allowed as justice re q u ire s on the amount that would have been just c o m p e n s a tio n had it been paid when performance was due.
(2 )
13
Id. at *20, 29-30 (quoting Restatement (Second) of Contracts § 354(1)-(2)) (emphasis a d d e d ). This language is consistent with Pennsylvania law regarding the purpose of p re ju d g m e n t interest. See Touloumes v. E.S.C., Inc., 899 A.2d 343, 349 (Pa. 2006) ("[I]n a breach of contract action, prejudgment interest is the appropriate vehicle to secure m o n ie s for the delay of relief.") (citing Penneys, 183 A.2d 544). The language from the Restatement (Second) is also consistent with the Supreme C o u rt's characterization of prejudgment interest as `an element of [plaintiff's] complete c o m p e n s a tio n ,'" see Osterneck, 489 U.S. at 175 (quoting West Virginia v. United States, 4 7 9 U.S. 305, 310 and n.2 (1987)), and with Third Circuit caselaw reflecting "a strong p re s u m p tio n in favor of awarding prejudgment interest, except where the award would re s u lt in unusual inequities." Shovlin v. Timemed Labeling Sys., Inc., No. 95-4808, 1997 W L 102523 *1 (E.D. Pa., Feb. 28, 1997) (quoting Booker v. Taylor Milk Co., 64 F.3d 8 6 0 , 868 (3d Cir. 1995)). In short, federal law, like Pennsylvania law, recognizes that p re ju d g m e n t interest plays an important part in fully compensating the aggrieved party in a breach of contract action for lost sums of money. See Starceski v. Westinghouse Elec. C o rp ., 54 F.3d 1089, 1101-02 (3d Cir. 1995) (purpose of prejudgment interest in contract c a s e "is to reimburse the claimant for the loss of the use of its investment or its funds f ro m the time of the loss until judgment is entered") H e re , in all of the cases cited by Thalia for the proposition that she is entitled to p re ju d g m e n t interest on her contract claim as a matter of right, the party seeking
14
prejudgment interest prevailed at trial. However, Thalia did not prevail in this case and ju d g m e n t was not entered in her favor. To the contrary, as previously explained, the jury f o u n d that although Thalia proved that Angelo breached their contract in the amount of $ 9 0 ,0 0 0 , it also found that Angelo proved that he could set-off that amount by $94,000 th a t Thalia owed him based on the loans. See Doc. 49 at Nos. 1-2, 4. The net result of th e jury's findings, based on interrogatories, is that the total loan amount Thalia owed A n g e lo was $4,000 more than the damages Thalia suffered as a result of Angelo's breach o f the agreement. In the relevant language of the Restatement (Second), these loan a m o u n ts constitute deductions to which the party in breach (Angelo) was entitled. See R e sta te m e n t (Second) at § 354(1). Stated differently, awarding prejudgment interest to T h a lia under these circumstances would not serve to "secure monies for the delay of re lie f ," see Touloumes, 899 A.2d at 349, nor would it constitute an element of her " c o m p le te compensation." See Osterneck, 489 U.S. at 175. Moreover, a contrary finding would lead to the absurd result of Angelo having to p a y nearly $20,000 in pre-judgment interest to Thalia, despite the fact that Angelo p re v a ile d at trial. Because I conclude that Thalia is not entitled to pre-judgment interest o n the $90,000 breach of contract claim, I will deny her motion to alter or amend ju d g m e n t pursuant to Rule 59(e).4
T o the extent Angelo seeks pre-judgment interest on the $4,000 difference b e tw e e n the amount of the set-off as found by the jury ($94,000) and the amount of d a m a g e s caused by Angelo's breach of the agreement ($90,000), see Doc. 65 at 4-5, such 15
4
C.
A n g e lo 's Motion to Alter or Amend Judgment and to Tax Costs A g a in s t Plaintiff
In the last motion, Defendant Angelo seeks to alter or amend the judgment p u rs u a n t to Rule 59(e), and to tax costs against Plaintiff. 1. A n g e lo 's motion to alter or amend judgment
A s previously explained, the jury in this matter found that Thalia had proven her b re a c h of contract claim and awarded damages in the amount of $90,000, but also that A n g e lo had proven his affirmative defense of set-off in the amount of $94,000. See Doc. 4 9 , at Nos. 1-2, 4. Based on the jury's determination, I entered a judgment reading " J u d g m e n t is entered in favor of the Defendant based on the Jury's Answers to In te rro g a to rie s ." See Doc. 48. In the first part of this motion, Angelo seeks to alter or amend the judgment to re f le c t the findings of the jury, specifically that judgment should be entered against P la in tif f in the amount of $4,000. See Doc. 55 at 2-3 (not numbered). I disagree. As e x p la in e d more fully in my Memorandum and Order dated October 26, 2009, in which I g ra n te d in part and denied in part Thalia's motions in limine, I permitted Angelo to argue s e t-o f f as an affirmative defense. See Doc. 47.5 Because set-off was asserted at trial as
re q u e s t must be denied because it was not made within ten days of the entry of judgment a s required by Federal Rule 59(e) and Local Rule 7.1(g). In any event, Angelo argued s e t-o f f as an affirmative defense against Thalia's claim, not a counter-claim on which A n g e lo could obtain damages. In her reply brief, Thalia reasserts her argument that the affirmative defense of s e t-o f f was not properly in the case. See Doc. 64 at 6. I considered and rejected this 16
5
an affirmative defense and not as a counter-claim, Angelo is not entitled to damages b a s e d on the jury's interrogatories. See Fed. R. Civ. P. 8(a), (c)(1) (defining "[c]laims for re lie f " separately from "avoidance or affirmative defenses"); Jacobs v. Philadelphia, No. 0 3 -0 9 5 0 , 2005 WL 1899499, at *14 n.14 (E.D. Pa. Aug. 8,. 2005) (Baylson, J.) ("Rule 8 (c ) enumerates many . . . affirmative defenses that a defendant may raise to escape lia b ility. . ."); see also Black's Law Dictionary, 8th ed. (2004), at 451 (defining " a f f irm a tiv e defense" as "[a] defendant's assertions of facts and arguments that, if true, w ill defeat the plaintiff's . . . claim, even if all the allegations in the complaint are true.") 2. C o sts pursuant to Rule 68
In the second part of this motion, Angelo seeks to tax costs against Thalia under tw o alternate theories. First, he seeks an award of costs by virtue of Thalia's rejection of h is Rule 68 offer of judgment made prior to trial. Second, he seeks an award of costs as th e prevailing party under Rule 54. See Doc. 55 at 3-4 (not numbered). He seeks the s a m e cost figure under both theories. Rule 68, captioned "Offer of Judgment," provides that "a party defending against a c la im may serve on the opposing party an offer to allow judgment on specified terms." Fed. R. Civ. P. 68(a). The rule further provides that "[i]f the judgment that the offeree
a rg u m e n t in the October 26, 2009, Memorandum and Order, see Doc. 47, and I repeated th e ruling at the close of testimony. N.T. 10/27/09 (Vol. II) at 26-27. Having concluded th a t the jury's set-off finding was supported by sufficient evidence, I see no reason to re v is it this issue at this time. 17
finally obtains is not more favorable than the unaccepted offer, the offeree must pay the c o s ts incurred after the offer was made." Fed. R. Civ. P. 68(d). In other words, Rule 68 is triggered when the defendant makes an offer of judgment, the plaintiff rejects the offer, a n d the plaintiff ultimately prevails at trial, but is awarded an amount less than the a m o u n t of the offer of judgment. Rule 68 was designed to "prompt[] both parties to a suit to evaluate the risks and costs of litigation, and to balance them against the likelihood of s u c c e s s upon trial on the merits." Marek v. Chesney, 473 U.S. 1, 5 (1985). Here, on June 24, 2009, Angelo presented Thalia with an offer of judgment in the a m o u n t of $5,000. See Doc. 32. Because judgement was subsequently entered in this c a s e in favor of Angelo, based on the jury's interrogatories, Thalia (the "offeree") did not " o b ta in " a judgment as contemplated by Rule 68. See Fed. R. Civ. P. 68(d); Delta Air L in e s , Inc. v. August, 450 U.S. 346, 351 (1981) (stating Rule 68 does not apply when ju d g m e n t is entered in favor of a defendant); Woern v. K Mart Corp, 131 F.R.D. 98, 989 9 (E.D. Pa. 1990) (same). Because the jury's verdict did not trigger Rule 68, Angelo is n o t entitled to costs on this basis. 3. C o sts pursuant to Rule 54
R u le 54 provides in relevant part that "[u]nless a federal statute, these rules, or a c o u rt order provides otherwise, costs other than attorney's fees should be allowed to th e prevailing party." Fed. R. Civ. P. 54(d); see also 28 U.S.C. § 1920 ("A bill of costs s h a ll be filed in the case and, upon allowance, included in the judgment or decree."). To
18
determine whether a party is entitled to costs under Rule 54, the crucial inquiry is whether th e party is the "prevailing party" for purposes of the Rule. See id. Thalia argues that she p re v a ile d at trial because the jury found in her favor on the breach of contract claim, w h e re a s Angelo did not prevail on his declaratory judgment action and did not obtain the f u ll amount of the set-off he sought. See Doc. 64 at 2-5. Nevertheless, based on the ju ry's findings that Thalia was not entitled to any sum of money from Angelo, judgment w a s entered in his favor; he was clearly the prevailing party in the case. See, e.g., Nissim v . McNeil Consumer Prod. Co., 957 F.Supp. 604, 607 (E.D. Pa. 1997) (holding plaintiff w h o received zero back pay and compensatory damages was not the "prevailing party," e v e n though jury found defendants had retaliated against him in violation of Title VII). Because Angelo was the prevailing party in this case, I conclude that he is entitled to c o s ts pursuant to Rule 54. O n November 5, 2009, Angelo filed a timely Bill of Costs and Accompanying D e c la ra tio n of Counsel with the Clerk of Court for the Eastern District of Pennsylvania p u rs u a n t to Local Rule 54.1(c). See Doc. 52; see also Local R. Civ. P. 54.1(c) ("Any p a rty requesting taxation of costs by the Clerk shall give the Clerk and all other parties f iv e (5) days' written notice of such request. The Clerk shall fix the time for taxation and n o tif y the parties or their counsel."). The itemized Bill of Costs submitted to the Clerk of
19
Court totals $2,008.85.6 See id. Because Angelo is the prevailing party and has properly s u b m itte d a Bill of Costs consistent with Local Rule 54.1(c), I will grant this aspect of the m o tio n and direct the Clerk of Court to proceed accordingly. III. C O N C L U S IO N I find that Plaintiff Thalia's post-trial motions are without merit and therefore the m o tio n s will be denied. I further find that Defendant Angelo's post-trial motion is w ith o u t merit as to his request to alter or amend judgment, but that he is entitled to costs a s the prevailing party pursuant to Rule 54. Therefore, his motion will be denied in part a n d granted in part, and I will direct the Clerk of Court to award Angelo's costs consistent w ith his already-filed Bill of Costs, subject to defense counsel's clarification regarding th e total amount requested as discussed in footnote 6. An appropriate Order follows.
T h e itemized costs set forth in the present motion are identical to the Bill of Costs s u b m itte d to the Clerk of Court. See Docs. 52 and 55 at 6-7. However, both appear to c o n ta in a mathematical error. In the Bill of Costs submitted to the Clerk of Court, the a m o u n t claimed for witness appearance is $220, although the attached computation lists th e amount as $266.20. Both the present motion and the Bill of Costs list a total sum of $ 2 ,0 0 8 .8 5 . However, if the correct witness cost is $266.20 rather than $220, the total f ig u re comes to $2,055.05. Given this disparity, defense counsel will be directed to c la rif y his Bill of Costs with the Clerk of Court. 20
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?