NGOK Global Consulta v. Parker Intl

Filing 133

MEMORANDUM DECISION and Order Denying Plaintiff's Rule 50 Motion, Denying Defendant's Motion for Attorneys' Fees and Granting Defendant's Costs- denying 118 Motion ; denying 122 Motion for Judgment as a Matter of Law and Defendantsrequest for costs is granted. See Order for details. Signed by Judge Dee Benson on 2/4/15. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
NGOK GLOBAL CONSULTANTS, INC.,
a California corporation,
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF'S
RULE 50 MOTION, DENYING
DEFENDANT'S MOTION FOR
ATTORNEYS' FEES, AND GRANTING
DEFENDANT’S COSTS

PARKER INTERNATIONAL, INC., a
Utah corporation,
Defendant.

Case No. 2:05-cv-372-DB
District Judge Dee Benson

Before the court are three motions: Plaintiff’s motion for judgment as a matter of law
pursuant to Rule 50, (Dkt. No. 122), Defendant’s motion to fix damages on its counterclaim for
breach of contract, (Dkt. No. 118), and Defendant’s bill of costs. (Dkt. No. 119). The court has
considered the memoranda and other materials submitted by the parties and the law and facts
relating to the motions. Now being fully advised, the court renders the following Memorandum
Decision and Order.
Judgment as a Matter of Law Pursuant to Rule 50
On October 6-7, 2014, the court held a two-day jury trial on this matter. The jury returned
a verdict that Defendant was not liable to Plaintiff on any of its claims, and that Plaintiff was
liable to Defendant on its counterclaim for breach of an accord and satisfaction. Plaintiff now
seeks judgment as a matter of law notwithstanding the jury’s verdict with respect to Defendant’s
counterclaim. Plaintiff contends that Defendant failed to provide consideration in support of the
accord and satisfaction and thus no accord and satisfaction arose as a matter of law.

Plaintiff’s contention fails for both procedural and substantive reasons. First, Plaintiff
failed to bring its motion for judgment as a matter of law with respect to Defendant’s
counterclaim before submission of the case to the jury. See Fed. R. Civ. P. 50. The Tenth Circuit
has held that a pre-verdict Rule 50 motion is a “prerequisite to a post-verdict motion under Rule
50.” M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753, 762 (10th Cir. 2009) citing Marshall
v. Columbia Lea Reg'l Hosp., 474 F.3d 733, 738 (10th Cir.2007). Thus, Plaintiff’s post-judgment
motion is procedurally impermissible.
Further, there was sufficient evidence to support a jury finding of a breach of an accord
and satisfaction. On a motion for judgment notwithstanding the verdict, a court must determine
“whether there is evidence upon which the jury could properly find a verdict for that party.”
Hurd v. American Hoist and Derrick Co., 734 F.2d 495, 499 (10th Cir.1984). At trial, extensive
evidence was presented related to the interactions and discussions between Plaintiff and
Defendant related to their business dealings. There was ample evidence upon which the jury
could rely to find that an accord and satisfaction was formed and that Plaintiff breached its
obligations pursuant to that agreement. Thus, for both procedural and substantive reasons,
Plaintiff’s motion for judgment as a matter of law pursuant to Rule 50 is denied.
Motion to Fix Damages
Defendant requests that the court fix damages on its counterclaim for breach of an accord
and satisfaction. Defendant’s only identified damages resulting from the breach are attorney’s
fees incurred defending this lawsuit. Defendant asserts that its attorney’s fees should be awarded
as consequential damages for the breach of the accord and satisfaction. In support of its theory,
Defendant presents the court with Utah case law supporting the assertion that an award of

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attorney’s fees is appropriate when an insurer breaches its contract to the insured. See, e.g., Beck
v. Farmers Ins. Exch., 701 P.2d 795, 801-01 (Utah 1985); Canyon Country Store v. Bracey, 781
P.2d 414 (Utah 1989). Defendant also asserts that other state and federal courts have awarded
attorney’s fees as compensatory damages where a settlement agreement has been breached.
Defendant, however, acknowledges that Utah adheres to the rule that attorney’s fees generally
cannot be recovered absent statutory or contractual authorization. Canyon Country Store, 781
P.2d at 419. Here, the court finds no statutory or contractual basis for granting Defendant’s
attorney fees. As such, Defendant’s request for attorney’s fees is denied.
Bill of Costs
Rule 54(d)(1) of the Federal Rules of Civil Procedure provides: “Unless a federal statute,
these rules, or a court order provides otherwise, costs–other than attorney’s fees–should be
allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1). The United States Court of Appeals
for the Tenth Circuit has instructed that “Rule 54(d) creates a presumption that the district court
will award costs to the prevailing party,”Aerotech, Inc. v. Estes, 110 F.3d 1523, 1526 (10th Cir.
1997), and there must be “some apparent reason to penalize the prevailing party if costs are to be
denied,” Klein v. Grynberg, 44 F.3d 1497, 1507 (10th Cir. 1995). Here, Defendant was the
prevailing party. As such, Defendant’s request for costs is granted.

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Conclusion
For the reasons stated above, Plaintiff’s motion for judgment as a matter of law pursuant
to Rule 50 is hereby DENIED, Defendant’s motion to fix costs is DENIED, and Defendant’s
request for costs is GRANTED.

DATED this 4th day of February, 2015.

BY THE COURT:

Dee Benson
United States District Judge

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