United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
John and Barbara Brown filed this lawsuit against defendants
K & L Tank Truck Service, Inc. (“K & L”),
Alfonso Martinez, president of K & L, and Tom Herrell.
Plaintiffs claimed that Martinez breached a contract in which
John Brown promised to assist and make certain guarantees for
a loan to buy K & L's stock back from an Employee
Stock Ownership Program (“ESOP”), and assist in
convincing K & L's employees to sell their stock back
to K & L to facilitate Martinez's ability to purchase
the majority of K & L's stock. Plaintiffs claim that
in exchange, Martinez, on behalf of K & L as its
president, agreed to employ and provide health insurance to
plaintiffs for the rest of their lives.
defendants' motion for summary judgment-which Judge
Lungstrum granted in part and denied in part-a jury heard
evidence from November 28, 2017, to December 18, 2017.
Defendants moved for judgment as a matter of law at the close
of plaintiffs' case, and the court granted their motion
as to plaintiffs' unjust enrichment claim. Following
deliberations, the jury found that Martinez did not enter
into a contract with John Brown for lifetime employment with
K & L. However, the jury concluded that Martinez and
Herrell breached a contract when they failed to pay John
Brown after he agreed to sell his two shares of stock in
exchange for twenty percent (20%) of the total shareholder
bonus distributed in 2013. The jury awarded plaintiffs
damages of $20, 000 against Martinez and $20, 000 against
matter is now before the court on plaintiffs' motion for
a partial new trial pursuant to Federal Rule of Civil
Procedure 59(a) on all issues except whether there was a
breach of contract for the 2013 shareholder bonus (Dkt.
181). Plaintiffs argue that there was sufficient
evidence to present their unjust enrichment claim to the
jury. Plaintiffs allege that they were prejudiced when
defendants produced relevant documents in the middle of trial
that were not disclosed during discovery. Plaintiffs also
criticize two jury instructions and the court's charge to
the jury preceding its deliberations. For the reasons stated
below, plaintiffs' motion is denied.
motion for new trial under Rule 59(a) may be granted
“for any reason for which a new trial has heretofore
been granted in an action at law in federal court . . .
.” Fed.R.Civ.P. 59(a)(1)(A). Such motions, which are
committed to the discretion of the trial court, are not
regarded with favor and are granted only with great caution.
Paradigm All., Inc. v. Celeritas Techs., LLC, 722
F.Supp.2d 1250, 1258 (D. Kan. 2010). They are generally
granted only “when the court believes the verdict is
against the weight of the evidence, prejudicial error has
occurred, or substantial justice has not been done.”
Wirtz v. Kan. Farm Bureau Servs., Inc., 311
F.Supp.2d 1197, 1226 (D. Kan. 2004). A party seeking to set
aside a jury verdict “bear[s] the heavy burden of
demonstrating that the verdict was clearly, decidedly, or
overwhelmingly against the weight of the evidence.”
Util. Trailer Sales of Kansas City, Inc. v. MAC Trailer
Mfg., Inc., 734 F.Supp.2d 1210, 1216 (D. Kan. 2010),
aff'd, 443 F. App'x 337 (10th Cir. 2011).
claim that they were unfairly prejudiced when defendants
failed to disclose documents from Charles Claar, K &
L's accountant. The documents consist of Claar's
notes and emails regarding the parties' 2004 buyout of
the ESOP and other matters about the case. Defendants deny
any intentional nondisclosure and say they were under the
impression that all the documents from Claar and/or his
accounting firm Lewis, Hooper & Dick (“LHD”)
had been turned over to plaintiffs in accordance with their
discovery request and subpoena. Defendants assert that the
breakdown was with the third-party scanning company that
scanned the documents from LHD and provided them to
plaintiffs. Still, it is undisputed that plaintiffs were
unaware of the existence of these documents until Claar's
testimony at trial.
assert that Claar's notes and emails addressing the 2004
ESOP buyout are highly relevant to their claims that the
parties entered into an express and/or implied lifetime
employment agreement. Plaintiffs reviewed the documents prior
to the close of their case and acknowledge that they were
able to admit certain documents during trial. But plaintiffs
allege that the late production resulted in substantial and
unfair prejudice that was not cured.
argue that they lost credibility with the jury because they
asked Claar whether he had created documents regarding
defendants' inquiries into repurchasing the stock from
the ESOP expecting him to answer no. But Claar answered
“yes.” Plaintiffs contend they looked like they
were not prepared or were trying to trick Claar. Plaintiffs
also believe the jury was under the impression that they were
hiding information from it because they did not show the
documents to the jury.
further argue that they were prejudiced when the court did
not allow them time to examine the documents before
continuing direct examination of Claar. Plaintiffs state that
they lacked knowledge about the information within these
unproduced documents to question and/or impeach Claar. And
even though the court informed defendants that they could not
use the unproduced documents, defendants continued to elicit
testimony from Claar about these documents over
plaintiffs' objection. Plaintiffs contend that the
court's instruction to the jury to disregard any
discussions concerning these documents did not cure the
prejudice because it failed to inform the jury that these
documents were not produced pursuant to plaintiffs'
subpoena and request for production. Consequently, the
jury-plaintiffs believe-was left with the impression that
plaintiffs were at fault.
plaintiffs were surprised, they were not unduly prejudiced so
as to warrant a new trial. See Util. Trailer Sales,
734 F.Supp.2d at 1228 (“A showing of prejudice,
however, is essential.”).
It is well settled that Rule 59 provides a means of relief in
cases in which a party has been unfairly made the victim of
surprise. 11 Wright & Miller, Federal Practice and
Procedure § 2805 at 38 (1973). The surprise, however,
must be “inconsistent with substantial justice”
in order to justify a grant of a new trial.
Conway v. Chem. Leaman Tank Lines, Inc., 687 F.2d
108, 111 (5th Cir. 1982).
were not allowed to introduce these documents until
plaintiffs had reviewed them. The jury was also given a
curative instruction. The “central assumption of our
jurisprudence is that juries follow the instructions they
receive.” Wirtz, 311 F.Supp.2d at 1228-29.
There is no evidence in the record ...