Indeed, the general rule governing motions for a new trial in the district courts is contained in Federal Rule of Civil Procedure 61, which provides: Unless justice requires otherwise, no error in admitting or excluding evidence—or any other error by the court or a party—is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights. F.R.C.P. 61 If the evidence in the record, viewed from the standpoint of the successful party, is sufficient to support the jury verdict, a new trial is not warranted merely because the jury could have reached a different result. Neither the trial court nor the Court of Appeals may substitute its judgment for that of the jury on disputed issues of fact. Rogers v. Exxon Research & Eng'g Co., 404 F. Supp. 324, 337 (D.N.J. 1975), reversed on other grounds. A. The Court Properly Refused to Include Defendant’s “Business Judgment” Language in Instruction No. 15.   The language proposed by Defendant does not accurately reflect the law.

97:6-97:16 (R. Troiolo). 49 Burchfield v. CSX Transp., Inc., 636 F.3d 1330, 1333 (11th Cir. 2011) (citation omitted); see also Fed. R. Civ. P. 61. 50 Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1162 (11th Cir. 2004).

Federal Rule of Civil Procedure 61 indicates that courts should disturb an Order when justice so requires due to preclusion of evidence affecting a party's substantial right. Fed. R. Civ. P. 61. A party's substantial rights are affected when the error is so prejudicial that it affected the outcome of District Court proceedings.

At Case 1:07-cv-11446-NG Document 36 Filed 02/08/2010 Page 23 of 48 16 #1455747 v1 den every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights. Fed. R. Civ. P. 61. Here, Tenenbaum provides no support for his contention that the redaction “was not harmless error.”

Shloss’s failure to meet and confer before filing—which was cured the day of filing—cannot be a basis to deny Shloss’s fee motion. Fed. R. Civ. Proc. 61 (court “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties”); Altamont Summit Apartments LLC v. Wolff Props. LLC, 2002 WL 31971832 at *3 (D. Or.) (refusing to deny motion on ground party failed to meet and confer before filing motion where “counsel did meet and confer shortly after the motion was filed” and provided opposing party with an extension of time to respond).

Accordingly, dismissal is generally not justified absent a showing of prejudice. Durant v. Traditional Investments, Ltd., No. 88 CIV. 9048 (PKL), 1990 WL 33611, at *4 (S.D.N.Y. Mar. 22, 1990); see also United Food & Comm. Workers Union v. Alpha Beta Co., 736 F.3d 1371, 1382 (9th Cir. 1984); Newman v. Prior, 518 F.2d 97, 99 (4th Cir. 1975); Fed R. Civ. P. 61. Courts have held that even in instances where plaintiffs have failed to effect proper service on a defendant, denial of the motion to dismiss is warranted where defendant had, in fact, received a copy of the summons and complaint and had actual knowledge of the action.

That, in light of McQueeny v. Wilmington Trust Co., 779 F.2d at 928, made Plaintiff well deserve a new trial unless it was highly probable that the error did not affect any of his "substantial rights." See also FRCP 61. However, in our case when the basis of the motion for a new trial is an alleged error involving a matter within the discretion of the trial court, such as the court's evidentiary rulings or jury instructions, the trial court should use its wide discretion to rule on Plaintiff’s motion for a new trial.

A new trial is never appropriate in cases involving only harmless error. Fed. R. Civ. P. 61. 8.

When a new trial motion is premised on an allegedly erroneous jury instruction (presuming the objection was timely preserved), the objecting party bears the burden of proving that the instruction was “misleading or gave an inadequate understanding of the law.” First Act, Inc. v. Brook Mays Music Co., 429 F.Supp.2d 429, 432 (D.Mass. 2006), quoting Steinhilber v. McCarthy, 26 F.Supp.2d 265, 278 (D. Mass. 1998). If the Court concludes that the instruction was erroneous, the Court must then evaluate whether the error was harmless under Fed. R. Civ. P. 61, which provides that, “[a]t every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.” Unless the Court concludes that the instruction was plainly erroneous “and caused a miscarriage of justice or [] undermined the integrity of the judicial process,” the grant of a new trial is unwarranted. Wilson v. Mar. Overseas Corp., 150 F.3d 1, 6 (1st. Cir. 1998), quoting Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 939 (1st Cir. 1995); see also First Act, Inc., 429 F.Supp.2d at 432 (“Even if the objecting party shows the Court Case 1:03-cv-11865-PBS Document 940 Filed 11/03/10 Page 13 of 59 3 misstated the law, a new trial can be granted only if the Court’s error affected the outcome of the trial”).

Id. at 1126 (citing Fed. R. Civ. P. 61, which excuses harmless error). Accordingly, in the unusual (and narrow) circumstances of that case, the court upheld the district court’s decision to quash the subpoena.