Opinion
Civil No. 95-274-ST.
December 23, 2002
OPINION AND ORDER (Post-Trial Motions)
INTRODUCTION
Plaintiffs, Vicki and Darrell Lee, and another individual, Gene Ferryman ("Ferryman"), co-owned a business known as The New Portland Meadows ("TNPM") which had a perpetual lease for the realty commonly referred to as Portland Meadows race track ("Portland Meadows") in Portland, Oregon. This dispute stems from a disagreement between plaintiffs and the Oregon Racing Commission ("ORC") over plaintiffs' financial management of Portland Meadows. That disagreement culminated in the ORC issuing four sets of orders in 1993 and 1994 purporting to exclude plaintiffs from Portland Meadows and all other areas within the jurisdiction of the ORC, arresting them for alleged violations of those orders, and temporarily suspending and eventually permanently revoking their employee licenses.
After many years of pre-trial rulings and appeals, a seven day jury trial was held beginning September 4, 2002. This court dismissed additional claims before submitting the case to the jury. On the eighth day, September 13, 2002, the jury returned a Verdict in favor of defendants on the remaining claim. Plaintiffs have now filed Motions for Renewed Judgment as a Matter of Law, for New Trial, for Relief from Judgment and to Amend the Judgment (docket #406). For the reasons set forth below, these motions are denied.
PROCEDURAL HISTORY
I. Pre-Trial Claims
Over the past years, this court has made a number of rulings on the parties' motions. One of those rulings declared an Oregon statute, ORS 462.080(1), facially unconstitutional by failing to provide a pre-deprivation hearing for those with protected interests who are excluded as "detrimental to the best interests of racing." Order dated April 16, 1998 (docket #206).
By the date of trial, the remaining claims and defenses were set forth in the Second Amended Pretrial Order signed August 8, 2002 (docket #363). Plaintiffs' remaining four claims sought damages under 42 U.S.C. § 1983 for violation of their constitutional rights.
The First Claim alleged an Unreasonable Seizure of Personal Property in violation of the Fourth and Fourteenth Amendments. In its Opinion dated April 6, 1998, this court granted summary judgment to plaintiffs as to liability on this claim, leaving only the issue of damages for the seizure of personal property from March 5, 1993 (the date of the initial Exclusion Orders), until March 26, 1993 for Darrell Lee and until April 1, 1993 for Vicki Lee. Plaintiffs alleged damages of $150,000.
The Second Claim alleged Retaliation against Constitutionally Protected Speech in violation of due process and equal protection provided pursuant to the First, Fifth and Fourteenth Amendments. Plaintiffs alleged that defendants retaliated against them for the exercise of their constitutional rights of free speech, expression and petition for redress by issuing the March 5, 1993 Exclusion Orders, suspending and revoking their licenses, and then after this action was filed, refusing to lift the exclusions or remove the suspensions and revocations of their licenses. Rather than suspending or revoking TNPM's race-meet license, which may have shut down the racetrack operations entirely, ORC chose the alternative strategy of unlawfully excluding plaintiffs from Portland Meadows in order to permit the other 50% shareholder, Ferryman, to take command of TNPM.
The Third Claim alleged Unlawful Taking of Private Property without Just Compensation in violation of the Takings Clause of the Fifth Amendment, the due process and equal protection clauses of the Fifth Amendment, and the Fourteenth Amendment. Pursuant to its earlier rulings, this court granted summary judgment as to liability: (1) to Darrell Lee on the Fifth Amendment takings claim for management of TNPM from March 5 to April 28, 1993; and (2) to both plaintiffs for deprivation of their rights as shareholders of TNPM. In essence, plaintiffs complained that under the guise of regulating TNPM, defendants used their positions to make it impossible for plaintiffs to resist the Ferryman takeover. One of the ways that they did so was blocking plaintiffs from having access to TNPM's corporate books, a right that they enjoyed as a matter of state law, ORS 60.774. By being excluded from TNPM and its books, plaintiffs were fatally disadvantaged in the corporate battle, a contest that was entirely private but one in which defendants unlawfully weighed in on the side of Ferryman. The intangible personal property at issue was Darrell Lee's management interest as a Director and President of TNPM between March 5 and April 28, 1993 (when a custodian of TNPM was appointed) and both plaintiffs' rights as TNPM shareholders.
The Fourth Claim alleged an Unlawful Restriction of Movement in violation of the Fifth and Fourteenth Amendments) from April through November 1998, which was the time period after this court declared ORS 462.080(1) unconstitutional and before the ORC lifted the exclusion orders.
II. Rulings During Trial
At the close of the plaintiffs' case, defendants made a number of motions for judgment as a matter of law. Of relevance to these motions, this court denied plaintiffs' motions for judgment as a matter of law as to retaliation against both plaintiffs. This court also granted defendants' motions against the First and Third Claims based on lack of evidence as to damages and against the Fourth Claim based on lack of damages attributable to the March 5, 1993 Exclusion Order as opposed to later orders (docket #398).
As a result, only the Second Claim for retaliation was submitted to the jury.
DISCUSSION
I. Timeliness of Motions
Defendants first opposed all of plaintiffs' motions as untimely because they were filed on September 27, 2002, the fourteenth calendar day after judgment was entered on September 13, 2002. Motions for judgment as a matter of law and for a new trial, as well as a motion to alter or amend a judgment, must be filed not later than 10 days after entry of judgment. FRCP 50(b); FRCP 59(b) (e). However, when any period of time is less than 11 days, intermediate Saturdays, Sundays, and legal holidays are excluded from the computation. FRCP 6(a). Excluding the two intervening weekends from the computation, plaintiffs' motions were timely filed on the tenth day after entry of judgment. Therefore, this court will address the merits of each motion.
II. "Renewed" Motions for Judgment as a Matter of Law
Plaintiffs renew two motions for judgment as a matter of law as to the Second Claim which were denied at trial. Vicki Lee moves for judgment on the retaliation claim because at least one of the Commissioners was impermissibly motivated to retaliate against her for associating with, and supporting her husband. Darrell Lee moves for judgment on the retaliation claims because the Commissioners retaliated against him because of their belief that he was considering bankruptcy.
In renewing their trial motions, plaintiffs add nothing new. Because an element of the retaliation claims is a defendant's subjective intent, plaintiffs had the burden to prove that the protected conduct (speech) was a "substantial" or "motivating" factor in a defendant's decision to retaliate. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Huskey v. City of San Jose, 204 F.3d 893, 899 (9th Cir 2000). This burden is not satisfied by showing that the speech preceded the adverse action. Dismissal is appropriate absent "'evidence linking this [adverse decision] to'" the protected speech activity." Id, quoting Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir 1998).
The jury considered plaintiffs' testimony and argument about the relative motivations of the defendants, including plaintiffs' association with each other and a possible bankruptcy filing by TNPM. The jury also considered whether Darrell Lee's bankruptcy plan was one part of a larger scheme to defraud horsemen, or whether it was contemplated for legitimate reasons. The jury also considered evidence of Vicki Lee's association with Darrell Lee in the context of the underlying scheme to defraud the horsemen. The jury rejected plaintiffs' theories and explicitly found that none of the defendants were motivated to retaliate against plaintiffs. Thus, the renewed motions are denied. See Gilbrook v. City of Westminster, 177 F.3d 839, 864 (9th Cir), cert denied, 528 U.S. 1061 (1999).
As discussed below, Darrell Lee's threat of TNPM filing bankruptcy is not protected speech by Darrell Lee.
III. Motions for New Trial
Plaintiffs move for a new trial for five separate reasons, each of which is discussed below.
A. Granting Defendants' Motions for Judgment as a Matter of Law
Plaintiffs argue that the court erroneously granted defendants' motions for judgment as a matter of law: (1) as to the First and Third Claims because prior to trial the court found a constitutional violation which entitled plaintiffs to at least an award of nominal damages; (2) as to the Fourth Claim because plaintiffs introduced sufficient evidence at trial to allow the jury to find a constitutional violation; and (3) as to that portion of the Second Claim alleging First Amendment retaliation for a proposed bankruptcy filing by TNPM because Darrell Lee's consideration of a bankruptcy was a matter of protected speech.
A motion for judgment as a matter of law is governed by FRCP 50(a)(1), which provides:
If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.
1. First, Third and Fourth Claims
Prior to trial, this court granted summary judgment to plaintiffs as to liability with respect to the First Claim for an Unreasonable Seizure of Personal Property and the Third Claim for an Unlawful Taking of Private Property without Just Compensation. However, the factual record at trial was substantially more developed, and more clear, than the summary judgment record. At trial, the evidence revealed for the first time that: (1) plaintiffs — as opposed to their non-party corporation, TLR, Inc. — did not own any of the horses; (2) plaintiffs had transferred the office furniture and supplies to TNPM before their exclusion, and TNPM exercised control over the property at all times; (3) plaintiffs had a 10 day window of opportunity to retrieve any or all of their personal property as a result of Oregon court orders and either retrieved the property or elected to leave it with TNPM; (4) during their 1998 sale of stock, plaintiffs agreed that all of the personal property on the premises was then corporate property and transferred any remaining interest therein to Ferryman, the remaining shareholder; (5) much of the office furniture and equipment was still on the premises, even through the date of trial; and (6) the corporate books and records were kept from Darrell Lee, if at all, by virtue of having been moved by Ferryman to a place outside the geographical scope of the exclusion orders.
Having heard all of the admissible evidence at trial, the court dismissed both the First and Third Claims. Defendants argue that the dismissal was premised on plaintiffs' failure to elicit facts at trial sufficient to support liability as to the First, Third and Fourth Claims. To the contrary, this court dismissed those claims based on lack of evidence as to damages. However, if a constitutional violation has occurred, plaintiffs are correct that they are entitled to an award of at least nominal damages. Carey v. Piphus, 435 U.S. 247, 266-67 (1978) (a § 1983 plaintiff who proves a constitutional violation is entitled to recover nominal damages of $1.00 in the absence of proof of any significant damage from the violation); Floyd v. Laws, 929 F.2d 1390, 1401 (9th Cir 1991). Although plaintiffs failed to argue at trial their right to recover nominal damages, the court clearly erred by dismissing these claims in their entirety if the only failure of proof was as to the amount of damages.
However, plaintiffs did not simply fail to prove the amount of their damages. They failed to prove that they suffered any damages because they failed to prove that defendants deprived them of any personal property or business interests as alleged.
Plaintiffs owned no personal property that defendants could unlawfully seize. They did not own the horses and gave the office furniture and equipment to TNPM to use. Whether TNPM's use of plaintiff's personal property is characterized as a capital contribution to the corporation or as a loan to the corporation is immaterial. The unrebutted testimony was that plaintiffs provided the property to TNPM for TNPM's use. There was no testimony or other evidence that plaintiffs made any effort at any time to divest TNPM of its right to possess the property or assert co-equal right to possession of the property.
Plaintiffs argue that a seizure occurs under the Fourth Amendment when there is an interference with a possessory interest in property, even when another has paramount right to possession under state law. As support, plaintiffs cite Rossi v. Town of Pelham, 35 F. Supp.2d 58, 69 (DNH 1997), which involved a town clerk and tax collector who brought a § 1983 action against the police chief who took action to prevent the clerk from removing the city's books and records from her office. The court found a Fourth Amendment seizure even though the city owned the books and records. However, that case is of little help to plaintiffs. To the extent it found a Fourth Amendment seizure, it did so in the context of seizure of plaintiff's person, not property. Id at 63-64, 72. As far as the personal property at issue in that case (public records held by plaintiff in her capacity as a town official), the court found that it was possible that a public official could have protected interest in such records, but concluded there was no Fourth Amendment violation because the government's interest in maintaining the integrity of the public records outweighed plaintiff's interest in taking them home. Id at 69-71.
A "seizure" of property requires "some meaningful interference" with an individual's possessory interests in that property. Soldal v. Cook County, 506 U.S. 56, 61 (1992). Here the evidence failed to establish any such meaningful interference by the March 5, 1993 Exclusion Order with plaintiffs' possessory interests in any personal property. This is especially apparent in light of the balancing of the respective interests involved, necessary to determine if an "unreasonable" seizure took place. The undisputed facts at trial were that the ORC had an overwhelmingly strong interest in regulating racing and protecting Oregonians from plaintiffs' alleged fraud. This outweighed any interest plaintiffs had in their claimed, but unexercised right to possess the property instead of TNPM. Thus, defendants could not be liable for unreasonably seizing any of their personal property in violation of the Fourth and Fourteenth Amendments, and the First Claim fails for lack of proof of any constitutional violation.
The Third Claim alleges an unlawful taking of intangible personal property consisting of Darrell Lee's management interest in the TNPM from March 5 through April 28, 1993, and plaintiffs' rights as shareholders. As a result, plaintiffs allege that they lost control of TNPM. With respect to their shareholder rights, plaintiffs were excluded from TNPM from March 5 to March 15, 1993, at which time they were permitted under court restriction to reenter the premises for 10 days. They were then excluded. However, on about March 15, 1993, Ferryman moved the corporate books and records to Vancouver, which was beyond the geographical reach of any ORC jurisdiction. Darrell Lee testified that he did not object to moving the books and records off the TNPM premises because he believed, albeit erroneously, that Ferryman would give him access. If plaintiffs were unable to access TNPM's books and records after that, then it was due to Ferryman's conduct, and not due to defendants' conduct.
Although defendants' conduct did deny plaintiffs access to the TNPM books and records on the TNPM premises from March 5 to March 15, 1993, the Third Claim is premised on the loss of plaintiffs' rights as shareholders due to the denial of access. Because plaintiffs remained shareholders of TNPM, there may have been some interference with, but no taking of, their shareholder rights during that 10 day period. Thus, the Third Claim fails for lack of causation as to a taking of shareholder rights.
The Third Claim also alleges an unlawful taking of Darrell Lee's management interest between March 5 and April 28, 1993. However, the evidence at trial eliminated any claim for the time period March 16-25, 1993, when he had access to the premises. Moreover, he conceded at trial that he could have managed TNPM by telephone, fax, and off-site, but the TNPM employees refused to acknowledge his authority. That difficulty was not caused by the ORC. Furthermore, as discussed above, any inability to manage TNPM due to denial of access to its books and records was caused by Ferryman, not defendants. Thus, the Third Claim fails for lack of causation.
The Fourth Claim alleges that plaintiffs' movement was unlawfully restricted from April through November 1998. Although defendants' motions at trial focused on lack of evidence as to damages, the underlying premise was a series of ORC orders beginning March 5, 1993, which barred plaintiffs from TNPM and, due to reciprocity, also barred them from licensed race meets elsewhere around the country. By 1998, the ORC had issued a number of orders which restricted plaintiffs' movement which effectively superseded the March 5, 1993 Exclusion Orders. None of those other orders were at issue in this trial. Because of the issuance of the later orders, plaintiffs could not prove that their exclusion in 1998 was caused solely, or even in part, by the unlawful March 5, 1993 Exclusion Orders. Thus, the Fourth Claim also failed due to lack of evidence as to causation.
2. Second Claim
Plaintiffs contend that they should have been allowed a jury instruction on the Second Claim alleging First Amendment retaliation that permitted consideration of bankruptcy as a matter of protected speech. Defendants knew that Darrell Lee had threatened to take TNPM into bankruptcy. "Resort to administrative, legislative, political or judicial processes is protected by the first amendment so long as the petitioner is concerned with obtaining relief afforded by the system." LeBlanc-Sternberg v. Fletcher, 781 F. Supp. 261, 266 (S.D.N.Y. 1991) (citations omitted). The First Amendment protection applies even "when done through lawful means even if the outcome solicited is used as a weapon." Id (citations omitted).
Filing for bankruptcy is a form of judicial process. However, the free speech right at issue belongs to Darrell Lee. He did not threaten to file personal bankruptcy and defendants are not accused of taking action in order to interfere with Darrell Lee's right to petition for bankruptcy. Instead, Darrell Lee threatened that TNPM would file bankruptcy. TNPM is not a plaintiff. Thus, for this reason and others stated in the record, plaintiffs are not entitled to judgment as a matter of law on the Second Claim.
B. Alleged Prejudicial Remarks by Defense Counsel
Defendants' counsel made statements at trial that defendants were volunteers who were paid only $30 per ORC meeting for their services. On two specific occasions, once in opening statement and once while cross-examining a plaintiffs' witness, he remarked that his clients would have to pay "for this." Plaintiffs objected during the opening statement and the court admonished defendants' counsel, warning that if a similar comment was made again, the jury would be instructed that a judgment would be paid by the State of Oregon, not by defendants personally. The court also offered to give the jury a curative instruction. Plaintiffs prepared such an instruction, but did not take exception to the court's failure to give it.
Given the lack of a trial transcript, the court relies on plaintiffs' representation as to what was said during trial.
Plaintiffs contend that these statements are as prejudicial as statements injecting insurance, lack of insurance, or any other plea of poverty into a trial. See City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749, 758 (6th Cir 1980) (suggesting to jury that damages will be paid by an insurance company rather than by the defendant is misconduct and may be ground for mistrial); DeSpain v. Bohlke, 259 Or. 320, 486 P.2d 545 (1971); Benton v. Johston, 45 Or. App. 959, 963, 609 P.2d 890, 892 (1980).
This court rejects plaintiffs' argument that defendants' volunteer status or their pay rate is tantamount to injecting the lack of insurance. Defendant was entitled to introduce evidence as to defendants' positions on the ORC, their duties, and their subjective intent when taking adverse action against plaintiffs. A juror could reasonably conclude that when faced with adversity, one who works as a volunteer for $30 a meeting is more likely to quit than to retaliate.
Moreover, each defendant testified at length about his or her background, including past or current employment. It was apparent to the court that each defendant had income and/or assets well in excess of any earnings for their service on the ORC. This testimony negated any likelihood of prejudice, as did this court's jury instruction that punitive damages "should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party."
Plaintiffs also complain that during closing arguments, defendants' counsel missated the law regarding what plaintiffs had to prove in order to prevail. He stated that defendants had no intent to commit any violation of plaintiffs' constitutional rights. To the contrary, the jury instructions stated that plaintiffs must only show that defendants intended to commit an act that results in the violation of plaintiffs' rights. Plaintiffs objected and the court admonished defendants' counsel. Contrary to plaintiffs' assertion, that admonishment was sufficient, especially since each juror was given a written copy of the jury instructions and also instructed to comply with those instructions and ignore any contrary representation by counsel.
C. Darrell Lee's "Right" to Participate as Trial Counsel.
Darrell Lee complains that the court improperly denied his request to examine Donna Jensen during trial. The general rule is that a person may represent himself or may appear by an attorney, but may not do both. 28 U.S.C. § 1654. However, "in rare circumstances it might be good practice and could aid in the fair presentation of claims or defenses if a party were allowed to actively participate in the conduct of the trial, even though represented by counsel." Brasier v. Jeary, 256 F.2d 474, 478 (8th Cir), cert denied, 358 U.S. 867 (1958).
Darrell Lee (who had practiced law in the State of Washington for many years) was not "co-counsel" at trial, but was represented at trial by two able lawyers, Mr. Combs and Mr. Job. Before trial, the court was advised that Darrell Lee may try to inject himself into the proceedings and the court advised the parties that he would not be able to do so. Thereafter, at one point in the trial, Darrell Lee expressed a desire to examine Donna Jensen. Upon inquiry by the court, Mr. Combs advised that he was fully prepared to conduct the examination. In reliance thereon, the court directed Mr. Combs to proceed. There is no showing in this record — by offer of proof or otherwise — that Mr. Combs was ineffective in any way. Thus, nothing in the current record supports any error with respect to the denial of Darrell Lee's request to actively participate in trial, let alone reversible error.
D. Verdict Was Not "Against the Clear Weight of the Evidence"
Plaintiffs argue that the verdict contradicted "the clear weight of the evidence," but provide no specifics. Contrary to plaintiffs' conclusory argument, ample evidence supported the jury's verdict, including each defendant's' testimony about his or her motives to thwart a perceived fraudulent scheme by plaintiffs.
E. Punitive Damages and Emotional Distress Damages
Plaintiffs argue that because they are entitled to recover nominal damages on the First and Third Claims, they also are entitled to recover both punitive damages and emotional distress damages. Goodwin v. Circuit Court of St. Louis County, Mo., 729 F.2d 541, 548 (8th Cir 1984). However, as discussed above, plaintiffs failed to prove the factual predicates to these claims. Therefore, dismissal of both claims without any damages was appropriate.
IV. Motion to Amend the Judgment
Plaintiffs move pursuant to FRCP 59(e) to amend the judgment to cure alleged legal or factual error on two grounds.
A. Possessory Interest
First, plaintiffs once again argue that they proved liability on the First and Third Claims and are entitled to an award of nominal damages. However, as stated above, the evidence at trial showed a complete lack of any evidentiary basis to support plaintiffs' factual allegations that they were dispossessed or deprived of personal property, or that defendants deprived them of any protected business interest in the corporation
B. Prevailing Party Status
Second, plaintiffs argue that despite the fact they did not prevail on their retaliation claim at trial, they are still the prevailing parties based on the court's pre-trial rulings in their favor. However, as discussed above, after hearing the evidence at trial, this court concluded that defendants committed no constitutional violation as alleged in the First, Third, and Fourth Claims. This court also ruled pre-trial that ORS 462.080(1) is facially unconstitutional. Only after that ruling did the ORC lift the exclusion orders. As a result, plaintiffs contends that this ruling provides an independent basis for finding that they are the prevailing parties.
A prevailing party need only succeed on a significant issue:
If the plaintiff has succeeded on "any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit," the plaintiff has crossed the threshold to a fee award of some kind. . . . [A]t a minimum, to be considered a prevailing party within the meaning of § 1988, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant. Beyond this absolute limitation, a technical victory may be so insignificant, . . . as to be insufficient to support prevailing party status.
Texas State Teachers Ass'n v. Garland Independent Sch. Dist., 489 U.S. 782, 791-91 (1989) (citations omitted).
In that case, the district court found unconstitutionally vague the requirement that nonschool hour meetings be conducted only with prior approval from the local school principal. However, that issue was "of minor significance" and "alone would not have rendered them 'prevailing parties' within the meaning of § 1988." Id at 1493. In contrast, a declaratory judgment holding unconstitutional a regulation barring police officers from associating with homosexuals was held not to be de minimis. Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d 288, 294-95 (1st Cir 2001).
Here, as a remedy, plaintiffs sought to declare ORS 462.080(1) unconstitutional and filed a summary judgment motion to that effect. However, they filed no discrete claim to declare that statute unconstitutional. Instead they alleged a number of claims for denial of substantive and procedural due process, unreasonable seizure of property and person, denial of equal protection, unlawful taking, and unlawful restriction of movement. The constitutionality of ORS 462.080(1) was an underlying issue with respect to some of those claims, but plaintiffs ultimately did not prevail on any of those claims. Thus, plaintiffs' success in obtaining a declaration that ORS 462.080(1) is facially unconstitutional was purely technical or de minimis. The legal status of the parties remained unchanged despite this victory. "Of itself, the moral satisfaction that results from any favorable statement of law cannot bestow prevailing party status." Farrar v. Hobby, 506 U.S. 103, 112 (1992) (citation and internal quotation marks omitted).
Even more salient is the fact that this court found ORS 462.080(1) unconstitutional because it permitted the ORC to exclude from any and all race courses any person who has a protected property and/or liberty interest that it "deems detrimental to the best interests of racing" without a pre-deprivation hearing. Licensees such as plaintiffs, but few other persons, have a protected property interest. Therefore, this court's ruling has little impact on the public at large.
Accordingly, this court declines to find that plaintiffs are the prevailing parties.
V. Motion for Relief from Judgment
Plaintiffs move for relief from judgment pursuant to FRCP 60(b) for two reasons.
A. Mistake of Law
First, plaintiffs request the court to vacate the judgment because it does not mandate at least an award of nominal damages on the First and Third Claims. For the reasons discussed above, plaintiffs did not prevail as to liability on those claims. Thus, this is not a reason justifying relief from operation of the Judgment.
B. Surprise
Second, plaintiffs move for relief from judgment on the First and Third Claims due to "surprise." They argue that they were "not prepared to present evidence at trial regarding liability of these issues" based on the court's pre-trial rulings. That argument is specious, given the lengthy testimony by Darrell Lee and other plaintiffs' witnesses. At no time during the trial did plaintiffs ask to re-open their case to produce additional evidence not otherwise presented because of "surprise." No such evidence is apparent from the face of this record, and none is described by plaintiffs in their motion.
The court gave plaintiffs every consideration in getting this matter to trial, and allowing plaintiffs to produce their evidence. Plaintiffs simply failed to carry their burden of proof to the satisfaction of the jury.
ORDER
For the reasons set forth above, plaintiffs' Motions for Renewed Judgment as a Matter of Law, for New Trial, for Relief from Judgment and to Amend the Judgment (docket #406) are DENIED.