Ira Green, Inc. v. Military Sales & Service Co. , 775 F.3d 12 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 14-1178
IRA GREEN, INC.,
Plaintiff, Appellant,
v.
MILITARY SALES & SERVICE CO.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Howard, Selya and Stahl,*
Circuit Judges.
Christine K. Bush, with whom Craig M. Scott, Anastasia A.
Dubrovsky, and Scott & Bush Ltd. were on brief, for appellant.
Brian C. Newberry, with whom Peter C. Lenart and Donovan Hatem
LLP were on brief, for appellee.
December 19, 2014
*
Judge Stahl heard oral argument in this matter, but
thereafter recused himself and did not participate in either the
panel's decisionmaking or the issuance of its opinion. The
remaining two panelists have issued the opinion pursuant to 28
U.S.C. § 46(d).
SELYA, Circuit Judge. This is a bruising commercial
dispute between business rivals. When the eponymous plaintiff, Ira
Green, Inc. (Green), repaired to the federal district court, it
charged the defendant, Military Sales & Service Co. (MilSal), with
tortious interference and defamation. After prodigious discovery
and an acrimonious trial, the jury returned a take-nothing verdict.
The district court denied Green's post-trial motions and, adding
insult to injury, corrected a portion of the judgment favorable to
Green and awarded costs to MilSal. Green appeals, presenting a
florid palette of claimed errors.
These claims of error include an issue of first
impression in this circuit. In 2009, the Civil Rules were amended
to enshrine a party's right to demand a jury poll. See Fed. R.
Civ. P. 48(c). Here, Green requested such a poll, but did not
receive one. Still, a party who requests a jury poll must act
reasonably to preserve its rights and, in the circumstances of this
case, Green did not do so. Consequently, its claim of error is
unavailing.
The remainder of Green's asseverational array is more
prosaic. Upon careful perscrutation, we discern no reversible
error and affirm the judgment below. The tale follows.
It's Not Easy Being Green
Green is a Rhode Island corporation engaged in the
marketing and distribution of military insignia and tactical
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products (such as headlamps, carabiners, and weather-resistant
paper). Its primary customer is the Army and Air Force Exchange
Service (AAFES), which operates retail shops (known as post
exchanges) at military bases. MilSal, a Texas corporation, plies
the same trade from a different angle. Acting as a manufacturer's
representative, it brokers direct sales to divers customers
including AAFES.
In 2010, Green acquired the assets of Brigade
Quartermasters, Ltd. (Brigade), which had been AAFES's largest
supplier of tactical gear. As part of the transaction, AAFES
agreed to assign to Green the shelf space previously reserved for
Brigade's products at its exchanges and Green, in return, ensured
a continuous flow of the tactical products theretofore sold by
Brigade. AAFES began issuing replenishment orders to Green, which
obtained the requisitioned products from its suppliers (formerly
Brigade suppliers) and filled AAFES's purchase orders.
Around the time that this arrangement started, MilSal
hired Cliff Vaughn (an erstwhile Brigade employee). Vaughn gave
MilSal confidential information about Brigade's costs and pricing
arrangements. Armed with this data, MilSal began courting certain
of Brigade's suppliers, touting the benefits of a direct-sales
model.
In short order, MilSal wooed away several suppliers and
persuaded them to stop filling Green's orders. AAFES began
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ordering directly from the suppliers, including J.L. Darling Co.
(Darling), a manufacturer of weather-resistant paper called Rite in
the Rain. Green fought back. It started marketing STORM SĀF (a
less-expensive alternative to Rite in the Rain) to AAFES.
The encroachment of STORM SĀF on sales of Rite in the
Rain ruffled MilSal's feathers. In May of 2011, a MilSal
executive, Scott Hance, sent an e-mail to Paul Atherton, an AAFES
hierarch. Hance's e-mail claimed (falsely, in Green's view) that
STORM SĀF "completely dissipates in water within a matter of
seconds" and could compromise warzone missions. Even though
AAFES's own tests found the two brands of paper to be of
"equivalent" quality, orders of STORM SĀF dwindled.
Nonplussed by MilSal's tactics, Green shifted the
battlefield from the marketplace to the courtroom. Invoking
diversity jurisdiction, see 28 U.S.C. § 1332(a), Green sued MilSal
in the United States District Court for the District of Rhode
Island. Its complaint alleged defamation and tortious interference
with both contractual and business expectancies. Based on
information acquired during protracted discovery, MilSal
counterclaimed. These counterclaims came to naught: one was
dismissed at the pleading stage, and the rest were jettisoned on
summary judgment.
After eight days of trial, the jury rejected Green's
claims for tortious interference. On the defamation claim, the
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jury sent a mixed message: it determined that MilSal "ma[d]e false
and defamatory statements concerning Ira Green and/or its STORM SĀF
products," but then determined that no damages flowed from this
disparagement.
The clerk of court entered judgment for MilSal on the
tortious interference counts and for Green on the defamation count.
MilSal moved to amend the judgment because, absent damages, a
required element of the defamation claim had not been proven.
Agreeing with MilSal's reasoning, the district court entered an
amended final judgment for MilSal on all the tried counts and for
Green on the counterclaims.
Green moved for a new trial, and MilSal moved for an
award of costs. As part of its motion, MilSal revealed for the
first time that it had paid over $10,000 in counsel fees to enable
it to secure the testimony of a witness. Green effectively amended
its new trial motion to include a claim based on this revelation.
The district court denied Green's new trial motion and
taxed costs in favor of MilSal. This timely appeal followed.
The Gold Standard
In appellate litigation, the standard of review is
tantamount to the gold standard. Thus, we pause at the outset to
limn the standards of review that are implicated by Green's
challenge to the district court's denial of its motion for a new
trial.
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Green brought its new trial motion under Federal Rule of
Civil Procedure 59(a). Under this rule, "[a] district court may
set aside the jury's verdict and order a new trial only if the
verdict is against the law, against the weight of the credible
evidence, or tantamount to a miscarriage of justice." Casillas-
Díaz v. Palau, 463 F.3d 77, 81 (1st Cir. 2006). We review the
district court's disposition of a new trial motion for abuse of
discretion. See Crowe v. Marchand, 506 F.3d 13, 19 (1st Cir.
2007). An abuse of discretion will be found whenever a reviewed
ruling is based on an error of law. See United States v. Connolly,
504 F.3d 206, 211-12 (1st Cir. 2007).
Green's motion posited that a new trial is obligatory
because of a series of embedded legal errors. We analyze
separately each of these cascading claims of error.
Some of Green's claims of error relate to the admission
of evidence. Where, as here, objections have been preserved, a
district court's evidentiary rulings are evaluated for abuse of
discretion. See United States v. Zaccaria, 240 F.3d 75, 78 (1st
Cir. 2001). Even if an abuse of discretion occurs, a new trial is
not required unless the error in admitting evidence "had a
substantial and injurious effect or influence upon the jury's
verdict." Gomez v. Rivera Rodríguez, 344 F.3d 103, 118 (1st Cir.
2003); see Fed. R. Civ. P. 61.
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Green's new trial motion also relies on assignments of
instructional error. When examining preserved claims of
instructional error, we afford de novo review to "questions as to
whether jury instructions capture the essence of the applicable
law, while reviewing for abuse of discretion . . . the court's
choice of phraseology." DeCaro v. Hasbro, Inc., 580 F.3d 55, 61
(1st Cir. 2009). The district court must give a jury instruction
on a material issue if the evidence presented at trial could
plausibly support a finding for either side. See Wilson v. Mar.
Overseas Corp., 150 F.3d 1, 10 (1st Cir. 1998); see also Faigin v.
Kelly, 184 F.3d 67, 87 (1st Cir. 1999) (explaining when a refusal
to give a requested instruction is reversible error).
In part, our decision on the jury-poll issue raised in
the new trial motion implicates the plain-error doctrine. See
United States v. Olano, 507 U.S. 725, 732 (1993). To prevail on
plain-error review, an appellant must show "(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the [appellant's] substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation of
judicial proceedings." United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001). The appellant must carry the devoir of persuasion
as to each of these four elements. See United States v. Vega
Molina, 407 F.3d 511, 521 (1st Cir. 2005).
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Singing the Blues
Green asserts that the court below was too free in
admitting evidence. It composes a siren's song challenging several
of the court's rulings. But Green's arguments are off-key, and
Green winds up singing the blues.
For the most part, Green's vision of improperly admitted
evidence involves the prohibition against the introduction of
hearsay testimony. By definition, hearsay is an out-of-court
statement "offer[ed] in evidence to prove the truth of the matter
asserted." Fed. R. Evid. 801(c)(2). "It follows from this
definition that a witness's first-hand account of an out-of-court
statement, not offered to prove the truth of that statement, is not
inadmissible hearsay." United States v. Walker, 665 F.3d 212, 230
(1st Cir. 2011). Put another way, an out-of-court statement is not
hearsay if it is relevant regardless of its truth (say, to show
state of mind). See 2 McCormick on Evidence § 246 n.6 (Kenneth S.
Broun ed., 7th ed. 2013). As we explain below, the bulk of Green's
hearsay objections fail because the challenged statements were
offered and admitted for a non-hearsay purpose.
Green's first plaint targets the admission of the
testimony of a MilSal senior manager, Robert Gregg Koefer, relating
that AAFES's buyer (Atherton) had "conveyed to [MilSal] an interest
in . . . set[ting] up [certain] vendors on a direct basis" and that
the transition would take less than two weeks. The record makes
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manifest that these statements were admitted not for the truth of
their contents — that AAFES was interested in converting to a
direct-sales model and could do so within two weeks — but to show
that Koefer had a non-culpable state of mind when soliciting
vendors. See Greensleeves, Inc. v. Smiley, 68 A.3d 425, 434 (R.I.
2013). Indeed, the district court gave a limiting instruction
directing the jury to consider Koefer's statements solely for this
non-hearsay purpose.
Green next challenges the admission of certain testimony
by a former MilSal marketing executive (Rick Fox) about Fox's
conversation with Vaughn concerning Brigade's financial
information. Pertinently, Fox testified that Vaughn implored him
to "keep [the information] confidential" because "the tactical
industry is extremely small" and Vaughn did not want to "tarnish"
his relationships within the industry. Viewed in context, it is
readily apparent that this testimony was admitted for a non-hearsay
purpose: to show Fox's state of mind; that is, that he believed
that MilSal was entitled to see and use, but not disclose, the
information furnished by Vaughn. The truth of Vaughn's statements
— that the industry is small and that releasing the information to
others might tarnish his reputation — was not the issue; the
statements were admitted only to illuminate Fox's state of mind
and, thus, to rebut the theory that MilSal knowingly used filched
information to solicit Green's suppliers.
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We likewise reject Green's complaint about the admission
of testimony from one of Darling's principals (Todd Silver). This
witness testified that a Brigade competitor seeking Darling's
business had expressed its "understand[ing]" that Brigade was
experiencing "problems" such as "not-in-stock" situations.
Rumors may be admitted, without regard to their accuracy,
to show their motivating effect on the listener. See, e.g., Smith
v. Wilson, 705 F.3d 674, 679 (7th Cir. 2013); United States v.
Worman, 622 F.3d 969, 974-75 (8th Cir. 2010). MilSal argues
persuasively that it offered this testimony for a non-hearsay
purpose: to show that Darling was considering offers by Brigade's
competitors and to explain Darling's reasons for defecting. This
interpretation is plausible. Regardless of whether Brigade was
actually experiencing problems, Darling might well have been
influenced by the rumors to that effect.1 Given this plausible
non-hearsay purpose, we are satisfied that the district court did
not abuse its wide discretion in admitting the challenged
testimony. See United States v. Anello, 765 F.2d 253, 261 (1st
Cir. 1985).
Green's final hearsay objection is more nuanced. Exhibit
L-3 (which the district court admitted over objection as a full
exhibit) is a chain of e-mail messages between AAFES (in the person
1
While a limiting instruction would have been helpful in
highlighting this distinction, such an instruction was neither
requested nor required.
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of Dennis Walker) and Green (in the person of David Lumbley). This
collection of communiques conveyed to Green the results of AAFES's
2011 comparative evaluation of Rite in the Rain and STORM SĀF.
Within this batch, a message from Walker dated March 30, 2012,
stated that an evaluation of STORM SĀF had been conducted and that
the "results were considered acceptable for this product and its
intended use." Another Walker message, dated April 4, 2012,
stated, "The Storm Saf [sic] notebooks did not perform as well as
the Right [sic] in the Rain. We were able to use the pad, but the
pads absorbed and retained more moisture, thus giving a fragile,
frayed appearance."
MilSal says that the sole purpose of admitting this
evidence was "to confirm that the testing was done" — but that is
a proscribed use under the hearsay rule. The exhibit was offered
solely for the truth of Walker's statement that the product had
been evaluated in 2011, and that fact goes directly to the
causation element of Green's defamation claim.
The district court's rationale for admitting the evidence
is no more convincing. The court admitted Exhibit L-3 under the
business records exception to the hearsay rule. See Fed. R. Evid.
803(6).2 To invoke this exception at the time of trial, a party
2
Several amendments to Federal Rule of Evidence 803(6) took
effect on December 1, 2014 (well after the trial had concluded).
These changes are primarily stylistic and, in any event, do not
apply to this case.
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had to demonstrate that the proffered record was (1) "made at or
near the time" of the act or event recorded, (2) "by — or from
information transmitted by — someone with knowledge," (3) "kept in
the course of a regularly conducted activity of a business," and
(4) made as part of the "regular practice of that activity." Id.
Here, the 2012 e-mails described what supposedly occurred in 2011.
This lack of contemporaneity puts the exhibit outside the compass
of the business records exception. See United States v. Goodchild,
25 F.3d 55, 62 (1st Cir. 1994). And the proffer was doubly flawed:
the record contains no evidence that Walker (the author of the e-
mail) had the requisite personal knowledge of either the evaluation
or its results. See id.
Although we conclude that the challenged portion of
Exhibit L-3 should have been excluded,3 our inquiry does not end
there. An error in the admission of evidence is harmless as long
as the reviewing court can say with fair assurance that the jury
would in all likelihood have reached an identical verdict had the
contested evidence been excluded. See Gomez, 344 F.3d at 120.
Because the statements in the exhibit were essentially cumulative
3
In rejecting Green's motion for a new trial, the district
court suggested that the e-mails were not hearsay because they were
"not admitted for the truth, but to refresh [a witness's]
recollection." That dog will not hunt: in the absence of special
circumstances (not present here), a writing used to refresh
recollection and not otherwise independently admissible may not be
introduced into evidence by the questioner. See United States v.
Socony-Vacuum Oil Co., 310 U.S. 150, 234 (1940); 1 McCormick on
Evidence, supra, § 9 n.7.
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of other untainted evidence,4 their admission does not demand
reversal. See Harrington v. California, 395 U.S. 250, 254 (1969);
Texaco P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 886
(1st Cir. 1995).
Green hawks one last claim of evidentiary error — a claim
that does not implicate the prohibition against hearsay. It argues
that the district court erroneously allowed Atherton to testify
without a sufficient foundation about what "AAFES believe[d]" and
to interpret certain policies "from AAFES's perspective."
The premise on which this argument rests cannot be
faulted. Personal knowledge is a prerequisite for lay testimony.
See Fed. R. Evid. 602. But the conclusion that Green draws is
unwarranted. The record makes manifest that the admission of
Atherton's testimony did not breach this rampart.
Atherton was AAFES's primary buyer of tactical gear.
During the course of the trial, his personal knowledge of the
requirements and policies governing his job was never contested.
The questions that he answered fell well within the scope of his
4
Atherton's testimony confirmed that AAFES had, in the months
following Hance's e-mail, conducted an independent evaluation of
STORM SĀF and Rite in the Rain. The record also contains evidence
that Darling sent a video to AAFES describing comparative tests
that it had performed. With respect to Walker's statements that
STORM SĀF pads "absorbed and retained more moisture, thus giving a
fragile, frayed appearance," the jury had an opportunity to examine
numerous (properly admitted) photographs comparing the products
after exposure to various test conditions. Some of these
photographs indicated quite plainly that STORM SĀF was less
resilient than Rite in the Rain.
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employment (and, by fair inference, within the encincture of his
personal knowledge). No more was exigible.
Through Rose-Colored Glasses
Green advances two preserved assignments of instructional
error. It views these assignments of error through rose-colored
glasses, and we reject them.
Green's first claim is as queer as a clockwork orange.5
It asserts — in what amounts to little more than an ipse dixit —
that the district court's charge on the justification defense to
tortious interference was "confusing." Our review of this
purported shortcoming in the charge is for abuse of discretion.
See DeCaro, 580 F.3d at 61.
Claims of tortious interference with contractual or
business relations require proof, among other things, of the
defendant's intentional and improper interference with the
contractual or business relationship. See Greensleeves, 68 A.3d at
434; Mesolella v. City of Prov., 508 A.2d 661, 669-70 (R.I. 1986).
Interference is improper if it is without justification; that is,
if it is "for an improper purpose." Greensleeves, 68 A.3d at 434
(internal quotation marks omitted). Once the plaintiff makes out
5
The phrase "clockwork orange" came into popular usage in
1962, when Anthony Burgess's novel of that name was published. In
a later article, Burgess explained that the title had its genesis
in an old cockney phrase "as queer as a clockwork orange." Burgess
defines the phrase as implying something bizarre — "a queerness
. . . so extreme as to subvert nature." Anthony Burgess, The
Clockwork Condition, The New Yorker, June 4, 2012, at 69, 69.
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a prima facie case of tortious interference, the defendant may
counter that prima facie case by showing that the interference was
justified. See Belliveau Bldg. Corp. v. O'Coin, 763 A.2d 622, 627
(R.I. 2000). The burden of proving justification rests with the
defendant. See id.
In charging the jury on the tortious interference counts,
the district court first explained the elements of Green's prima
facie case and the various factors shedding light on improper
purpose. It then described the justification defense to the jury:
A defendant is not liable simply for
committing an intentional act that interferes
with a plaintiff's contracts or business
relationships. The interference also must be
impermissible or unjustified. In other words,
a defendant would not be liable for
legitimately competing with a plaintiff for
business.
If you find that Ira Green has proven that
[MilSal] acted intentionally and for an
improper purpose, the burden shifts to
[MilSal] to prove that its interference was
justified. . . .
If you find that [MilSal] was justified in
interfering with Ira Green's contracts and/or
business relationships, you should find that
[MilSal] is not liable for tortious
interference with contracts and/or business
relationships.
Green suggests that this instruction, which came after the court
had allocated the burden of proving the tort to Green, implied that
Green was required to prove twice that MilSal's interference was
improper.
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This argument is vecordious. The instruction correctly
informed the jury about the shifting burdens of proof and neither
stated nor implied that Green was obliged to rebut any evidence of
justification adduced by MilSal. To the contrary, the court made
it clear that the jury should exonerate MilSal only "[i]f
. . . [MilSal] was justified in interfering with Ira Green's
contracts and/or business relationships." This portion of the
instructions, read seamlessly, was neither misleading nor
confusing.
Green resists this conclusion. It argues that the
location of a particular sentence ("In other words, a defendant
would not be liable for legitimately competing with a plaintiff for
business") insinuated that MilSal's interference was presumed
justified and, thus, misled the jury.
Green is seeing ghosts under the bed. Legitimate
competition between business rivals constitutes a justification for
interference. See Ocean State Physicians Health Plan, Inc. v. Blue
Cross & Blue Shield of R.I., 883 F.2d 1101, 1113 (1st Cir. 1989)
(citing Restatement (Second) of Torts § 768 (1979)). Reading the
challenged sentence in the context of the instructions as a whole,
there is no conceivable risk that a reasonable juror would
understand it as setting up a presumption that MilSal's efforts at
competition were legitimate.
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Green's second claim of instructional error also fails.
It calumnizes the district court for refusing to instruct on
defamation per se.
Rhode Island law supplies the substantive rules of
decision in this diversity case. See Hanna v. Plumer, 380 U.S.
460, 465 (1965); Correia v. Fitzgerald, 354 F.3d 47, 53 (1st Cir.
2003). The Rhode Island Supreme Court has explained that "a
statement is defamatory per se if it charges improper conduct, lack
of skill, or integrity in one's profession or business, and is of
such a nature that it is calculated to cause injury to one in his
profession or business." Marcil v. Kells, 936 A.2d 208, 213 (R.I.
2007). Rhode Island's highest court has not yet decided a case
mapping the intersection of defamation per se and product
disparagement. We think it reasonable to predict that the court,
when faced with the question, will adopt the prevailing rule as set
forth in the Restatement (Second) of Torts. Cf. id. (following
Restatement in defamation action). Under the Restatement, a false
statement concerning the quality of goods is actionable as
disparagement but is not actionable as defamation per se unless
"made under circumstances and in a manner that implies that the
manufacturer or vendor is dishonest, fraudulent or incompetent."
Restatement (Second) of Torts § 573 cmt. g (1977); see Nat'l Ref.
Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763, 771 (8th Cir. 1927)
(a false statement directed at goods is not "libelous per se as to
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the corporation, unless by fair construction and without the aid of
extrinsic evidence it imputes to the corporation, fraud, deceit,
dishonesty, or reprehensible conduct in its business").
Green insists that a reasonable jury could conclude that
statements disparaging the quality of STORM SĀF, which neither
mentioned Green by name nor suggested that Green knew about the
purported flaws, imputed to Green dishonesty, fraud, or
incompetence. We do not agree: the evidence in the record simply
will not support a plausible finding that MilSal's product
disparagement of Green's wares amounted to defamation per se.
The statements in question — to the effect that STORM SĀF
dissipates quickly in water and, therefore, will compromise the
warzone mission — are no more than "a caution against the goods,
suggesting that the articles . . . do not answer their purpose."
Evans v. Harlow, (1844) 114 Eng. Rep. 1384, 1388; 5 Q.B. 624, 633.
Such statements are surely actionable as product disparagement.
See, e.g., Vascular Solutions, Inc. v. Marine Polymer Techs., Inc.,
590 F.3d 56, 59 (1st Cir. 2009) (per curiam). But competition is
the lifeblood of a free-market economy, and business rivals
frequently knock one another's wares. In the marketplace, then,
garden-variety criticism of the quality of goods, without more, is
insufficient to ground a claim of defamation per se against either
the manufacturer or the vendor. See Nat'l Ref., 20 F.2d at 767-70
(collecting cases). Although any statement denigrating the
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efficacy of a product will likely have some impact on the
reputation of its manufacturer or its vendor, more is needed to
sink to the level of defamation per se. There is no "more" here.
It follows that the district court did not err in refusing to
instruct the jury on defamation per se.
Not Quite a White Knight
Green soldiers on. It argues that MilSal's failure to
disclose that it had paid counsel fees in order to secure the
testimony of Todd Silver (a principal of Darling) was a discovery
violation. Had it known, Green says, it would have made
devastating use of the information on cross-examination to undercut
MilSal's suggestion that Silver was a white knight who had "fl[own]
3,000 miles across the country voluntarily . . . to come and
testify."
Green raised this argument for the first time in what
amounted to an amendment to its motion for a new trial. This was
before the time for filing a motion for a new trial had elapsed.
See Fed. R. Civ. P. 59(b). Hence, the argument is cognizable as a
ground for a new trial.6 Our review is for abuse of discretion.
See Crowe, 506 F.3d at 19.
We need not tarry. Even assuming that a discovery
violation occurred — and that is far from clear — the district
6
In mounting this challenge, Green also invokes Federal Rule
of Civil Procedure 60(b)(3). Because that reference does nothing
to enhance Green's position, we leave it unremarked.
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court supportably concluded that the fact of the payment had only
meager evidentiary value. Silver was a volunteer who testified
without a subpoena. There was a history of litigation between
Green and Darling. Given that history, Darling's insistence on
having an attorney present when Silver testified and its demand
that MilSal defray its counsel fees reflect prudent business
judgment. Nothing about that cautious arrangement contradicts the
voluntary nature of Silver's court appearance.
We add, moreover, that neither Silver nor his company
profited from the challenged payment; rather, it went directly into
the coffers of a law firm. As such, any inference of bias arising
out of the payment would have been strained and, therefore, easily
dispelled. Seen in this light, the district court's conclusion
that the undisclosed payment did not impede Green's ability to
litigate the case was supportable. And the court's bottom-line
determination that this circumstance did not justify a new trial
was not an abuse of discretion. See Casillas-Díaz, 463 F.3d at 81.
A Gray Area
We come now to the thorniest of the arguments made in
support of Green's new trial motion. Addressing this argument
takes us into a gray area surrounding the forgone jury poll. We
start by sketching the relevant events.
The court submitted the case to the jurors with
instructions that they complete a six-question verdict form (a
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reconstruction of which is annexed hereto as Appendix A). When the
jury returned its verdict, the court asked the foreperson to report
on the jury's answers to the questions posed in the verdict form.
Following the court's lead, the foreperson read into the record the
answers to Questions 1, 3, and 5. He was not asked to report on
the other three questions.
That was when things began to unravel. The answers to
Questions 1 and 3 mooted Questions 2 and 4, so those questions were
appropriately ignored. Question 6 was not moot, yet the court did
not pursue that question with the jury foreperson.
The court next inquired whether any party wished to poll
the jurors individually. One of Green's lawyers responded
affirmatively. At the same time, he reminded the court that the
answer to Question 6 had not been reported.
The court turned immediately to the oversight: it read
Question 6 aloud and asked the foreperson to announce the jury's
answer. Once the announcement had been made, the court thanked the
jurors for their service and discharged them. None of Green's
three attorneys reminded the judge of the earlier request for a
jury poll.
On Green's motion for a new trial, the district court
concluded that its failure to poll the jury was harmless. Green
asseverates that the failure to poll constituted per se reversible
error. MilSal counters that Green waived its right to a jury poll
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by failing to speak up when it became clear that the district
court, distracted by the need to complete the reporting of the
verdict, had forgotten about the earlier jury-poll request.
For over two centuries, there was an open question in the
federal courts about "'whether a party may demand a poll of the
jury in a civil action as a matter of right or whether that
decision is commended to the discretion of the district court upon
motion by counsel.'" Audette v. Isaksen Fishing Corp., 789 F.2d
956, 959 (1st Cir. 1986) (quoting Kazan v. Wolinski, 721 F.2d 911,
916 n.5 (3d Cir. 1983)). This uncertainty was resolved in 2009
when Federal Rule of Civil Procedure 48 was amended by adding
subsection (c) to make a jury poll mandatory upon timeous request.
See Fed. R. Civ. P. 48(c) ("After a verdict is returned but before
the jury is discharged, the court must on a party's request, or may
on its own, poll the jurors individually."). The new provision was
"drawn from Criminal Rule 31(d) with minor revisions to reflect
Civil Rules Style and the parties' opportunity to stipulate to a
nonunanimous verdict." Fed. R. Civ. P. 48(c) advisory committee
note to 2009 amend.
A party's right to poll the jury is "of basic
importance." Audette, 789 F.2d at 959 (quoting Miranda v. United
States, 255 F.2d 9, 17 (1st Cir. 1958)). Individual polling helps
to ensure unanimity by unmasking coercion and exploring the
possibility that a juror may change her mind about a verdict after
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leaving the jury room. See id. at 958-59. But the right to
individual polling is not of constitutional dimension, and it can
be waived if not invoked in a timely manner. See Humphries v.
District of Columbia, 174 U.S. 190, 194 (1899); Jaca Hernandez v.
Delgado, 375 F.2d 584, 585-86 (1st Cir. 1967).
In the criminal context, the prevailing rule is that a
failure to poll the jury after a timely request constitutes per se
reversible error. See, e.g., United States v. F.J. Vollmer & Co.,
1 F.3d 1511, 1522 (7th Cir. 1993); Virgin Islands v. Hercules, 875
F.2d 414, 419 (3d Cir. 1989); Miranda, 255 F.2d at 18. The law is
much less clear in the civil context. In one of the very few cases
applying Rule 48(c), a panel of the Seventh Circuit noted its
belief that the presumption of prejudice attaching to violations of
Criminal Rule 31(d) was "fully applicable to its civil analogue."
Verser v. Barfield, 741 F.3d 734, 738 (7th Cir. 2013).
Extrapolating from this premise, the court postulated, in dictum,
that "a district court's refusal, or even neglect, to conduct a
jury poll upon a timely request is ground for a new trial." Id.
The Seventh Circuit's position has much to commend it.
The criminal and civil rules on jury polling are now virtually
identical. Compare Fed. R. Crim. P. 31(d), with Fed. R. Civ. P.
48(c). Common sense suggests that these rules should be
interpreted in pari passu.
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Such a suggestion, though, is open to legitimate
question. More than one state court, interpreting similar parallel
mandatory jury-polling rules, has concluded that a violation of the
right to a jury poll engenders automatic reversal in criminal cases
but not in civil cases. See, e.g., Wiseman v. Armstrong, 989 A.2d
1027, 1040-41 (Conn. 2010) (distinguishing State v. Pare, 755 A.2d
180, 182 (Conn. 2000)); see also id. at 1038 & n.18 (collecting
cases from other jurisdictions). Those courts review a trial
court's failure to conduct a requested jury poll in a civil case
for harmless error. See, e.g., id.
Here, however, this gray area can be left unexplored.
Green's failure to renew its jury poll request after the district
court completed the announcement of the verdict takes this case
outside the mainstream. We explain briefly.
Green initially sought two things: polling the jury and
completing the reporting of the verdict. The district court —
sensibly, in our view — attended first to completing the verdict
report. After that was accomplished, Green failed to renew its
jury-poll request.
We have noted in other contexts that a district court's
inadvertent failure to make a ruling is not equivalent to a denial.
Rather, "a party who seeks a ruling must persist in his quest to
some reasonable extent." DesRosiers v. Moran, 949 F.2d 15, 23 (1st
Cir. 1991); see United States v. Ortiz, 966 F.2d 707, 715 (1st Cir.
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1992). After all, the law ministers to the vigilant, not to those
who sleep upon their rights. See, e.g., Dow v. United Bhd. of
Carpenters & Joiners, 1 F.3d 56, 61 (1st Cir. 1993). Other courts
have indicated that this principle is applicable in the jury-poll
context where, say, counsel could reasonably have objected while
the jury was filing out of the courtroom. See, e.g., United States
v. Marinari, 32 F.3d 1209, 1215 (7th Cir. 1994). So, too, where a
party could have requested that the jury be recalled for polling
after dismissal but before the jury had dispersed. See, e.g.,
United States v. Beldin, 737 F.2d 450, 455 (5th Cir. 1984); Baker
v. Sherwood Constr. Co., 409 F.2d 194, 195 (10th Cir. 1969) (per
curiam).
In this case, Green's legal team had ample opportunity to
act once it became apparent that the district court had forgotten
Green's earlier jury-poll request.7 They could have done so
immediately after the foreperson completed the reading of the
verdict form. Similarly, they could have done so either when the
court purposed to discharge the jury or when the jury was filing
out of the courtroom. See Marinari, 32 F.3d at 1215 ("Counsel
risks waiver of [the party's] right to a poll by merely waiting and
7
We assume (but do not decide) that the original jury-poll
request was effective even though it was proffered before the
verdict had been completely reported. Cf. Miranda, 255 F.2d at 18
(remarking that a jury-poll request made before the verdict is
announced would be premature).
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watching as the jury disappears behind the closed door of the jury
room.").
Here, moreover, Green's counsel had a final opportunity.
The district court had suggested that the jurors wait in the jury
room so that the court could thank them personally. Thus, when the
court (before adjourning) asked counsel if there was "anything left
to say," Green's lawyers could have taken up the jury-poll matter
then and there. Given this collocation of circumstances, we
conclude that Green's request for a jury poll was waived. Cf.
Putnam Res. v. Pateman, 958 F.2d 448, 457 (1st Cir. 1992) (noting,
in an analogous context, that failure to object at a point when the
jury could still be reconvened may constitute a waiver).
A waived claim is generally not reviewable on appeal.
See United States v. Rodríguez, 311 F.3d 435, 437 (1st Cir. 2002)
(distinguishing between waived claims and forfeited claims with
respect to appellate review). In an effort to skirt this barrier,
Green maintains that the waiver doctrine requires a deliberate
action, see id., and that there is no indication that its failure
to renew its jury-poll request was deliberate. But claims of error
can be deemed waived; and where, as here, a party in effect trades
a long-shot chance (having the jury polled) for better odds
(seeding the record with a promising issue for appeal), we think
that deliberateness may be inferred. As we said in a different but
analogous setting, "[t]o hold otherwise 'would place a premium on
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agreeable acquiescence to perceivable error as a weapon of
appellate advocacy.'" Reilly v. United States, 863 F.2d 149, 161
(1st Cir. 1988) (quoting Merchant v. Ruhle, 740 F.2d 86, 92 (1st
Cir. 1984)).
To be sure, there may be an alternative explanation for
what occurred: that Green's attorneys were asleep at the switch.
But even assuming, favorably to Green, that the jury-poll claim was
forfeited rather than waived, the verdict would nonetheless be
unimpugnable. Appellate review of forfeited claims is for plain
error, see Rodríguez, 311 F.3d at 437, and Green's claim stumbles
at the third step of the plain-error framework.
The third step of plain-error review embodies a
requirement that the asserted error be shown to have affected a
party's substantial rights. See Duarte, 246 F.3d at 60. For an
error to affect a party's substantial rights, it must be
prejudicial. See id. at 61; see also Johnson v. United States, 520
U.S. 461, 466 (1997) (approving inquiry into harmlessness of error
under plain-error review even in cases involving structural error).
In the context of a failure to poll the jury, we think that
carrying this burden requires, at the very least, some showing that
the verdict was rendered under circumstances indicating a possible
lack of unanimity or assent. See United States v. Lemmerer, 277
F.3d 579, 592 (1st Cir. 2002); cf. Verser, 741 F.3d at 742 (finding
prejudice, in analogous circumstances, due in part to the "jury's
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initial indication that it was deadlocked, [and] the speed with
which it then returned a verdict"); United States v. Luciano, 734
F.2d 68, 70 (1st Cir. 1984) (indicating that prejudice would exist
where judge raced to record verdict despite "jurors who expressed
a lingering doubt").
In this case, there is nothing that might suggest to even
the most wary observer that the jurors were not all of one mind.
The court emphasized in its charge that the jurors' verdict must be
unanimous and the record offers no reason for disregarding the
time-honored presumption that jurors obey such instructions. See
Lemmerer, 277 F.3d at 593-94. Just before the verdict was
announced (albeit incompletely), the court inquired whether the
jurors had reached a unanimous verdict. They collectively
responded in the affirmative. After the verdict had been
announced, the court asked, "is that the true and accurate verdict
of each and every one of you?" All of the jurors answered "Yes."
Last but not least, in denying relief the district court noted that
there was "nothing in the jurors' demeanor or behavior to suggest
that any one of them did not" agree with the verdict. Green has
pointed to nothing that impugns this assessment.
That ends this aspect of the matter. Even if the jury-
poll request was merely forfeited, the poll's omission cannot be
said to have affected Green's substantial rights. There was no
plain error.
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A Silver Bullet
We move now to the district court's amendment of the
judgment — a ruling that Green challenged both at the time and in
its subsequent new trial motion. We review this ruling, too, for
abuse of discretion. See Companion Health Servs., Inc. v. Kurtz,
675 F.3d 75, 87 (1st Cir. 2012).
We set the stage. After the jury had been discharged,
the clerk of court entered judgment for MilSal on the tortious
interference claims and for Green on the defamation claim. MilSal
promptly moved to amend the judgment to reflect that it, not Green,
had prevailed on the defamation claim.
The district court granted the requested relief.
Although MilSal's motion invoked Federal Rule of Civil Procedure
59(e), the court purposed to amend the judgment under Federal Rule
of Civil Procedure 60(a), which allows the court to correct
clerical errors.8
Though Green vociferously objects to the court's
invocation of Rule 60(a), we need not inquire whether the clerk's
action was susceptible to correction under that rule. We have the
option of viewing the action through the lens of Rule 59(e). See
8
In itself, a recharacterization of this kind is not
problematic: a district court is not bound by the label that a
party affixes to a motion but ordinarily may recharacterize the
motion as invoking a more appropriate rule. See Gulf Coast Bank &
Trust Co. v. Reder, 355 F.3d 35, 38-39 (1st Cir. 2004); United
States v. Morillo, 8 F.3d 864, 867 (1st Cir. 1993).
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Companion Health, 675 F.3d at 87. So viewed, the amendment to the
judgment easily passes muster.
In terms, Rule 59(e) permits a motion to alter or amend
the judgment to be brought within 28 days next following the entry
of judgment. The rule admits of some play in the joints. It does
not list specific grounds for affording relief but, rather, leaves
the matter to the sound discretion of the district court. See
Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 190 (1st Cir.
2004); see also Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st
Cir. 2006). This discretion must be exercised with considerable
circumspection: revising a final judgment is an extraordinary
remedy and should be employed sparingly. See Palmer, 465 F.3d at
30. To secure relief under Rule 59(e), a party normally must
demonstrate either that new and important evidence, previously
unavailable, has surfaced or that the original judgment was
premised on a manifest error of law or fact. See id.; FDIC v.
World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992).
The district court's action satisfied this standard. To
begin, the motion was filed well within the temporal window framed
by Rule 59(e) and was therefore timely.
Moreover, the judgment was plainly wrong.9 Green's claim
for defamation per se had fallen by the wayside, see supra, and
9
We add that the judgment entered by the clerk was also
incomplete; it did not address the counterclaims at all.
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damages were an essential element of the defamation claim submitted
to the jury. See Nassa v. Hook-SupeRx, Inc., 790 A.2d 368, 373
n.10 (R.I. 2002). The jury explicitly found that Green had proven
no damages. This finding was a silver bullet that killed the claim
and required the entry of judgment for MilSal on that claim. The
district court therefore acted comfortably within the realm of its
discretion in amending the judgment.
Tie a Yellow Ribbon . . .
Before we wrap up this case and tie a yellow ribbon
around it, we must examine the district court's award of costs.
See Fed. R. Civ. P. 54(d)(1). Boasting about its successful
defense of the counterclaims, Green submits that each side
prevailed in part and, therefore, the district court should not
have awarded costs to MilSal as the prevailing party.
Rule 54(d)(1) creates a presumption favoring recovery of
costs by prevailing parties. See Estate of Hevia v. Portrio Corp.,
602 F.3d 34, 46 (1st Cir. 2010). When no party clearly prevails,
the common practice is to order the litigants to bear their own
costs. See id. (citing representative cases). But this practice
is not carved in granite: among other exceptions, the district
court retains discretion to award costs to a party who, though
losing on some claims, substantially prevails in the case as a
whole. See Hillside Enters. v. Carlisle Corp., 69 F.3d 1410, 1416
(8th Cir. 1995); Scientific Holding Co. v. Plessey Inc., 510 F.2d
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15, 28 (2d Cir. 1974). A classic example of a case in which this
discretion may appropriately be exercised is one in which a
defendant, though losing on a counterclaim, succeeds in warding off
a predominant claim. See, e.g., Scientific Holding, 510 F.2d at
28; see also Hevia, 602 F.3d at 46 (stating, in dictum, that "the
district court surely could have awarded costs to the defendants
notwithstanding the dismissal of the counterclaims").
Determining who is the prevailing party for the purpose
of taxing costs is not a purely arithmetic exercise. The court
must do more than merely count and contrast the number of claims on
which each side prevailed. Substance ought to triumph over form,
and a mixed result does not preclude the trial court from awarding
costs to the party whom it reasonably determines carried the day.
We review the district court's decision to award costs to
MilSal for abuse of discretion. See In re Two Appeals Arising Out
of San Juan Dupont Plaza Hotel Fire Litig., 994 F.2d 956, 963 (1st
Cir. 1993). In this instance, we discern no hint of abuse.
Green's complaint, culminating in an eight-day trial, was obviously
the main event, and MilSal won an unqualified victory there.
Compared to the amount of time, effort, and resources devoted to
the claims that were tried, the counterclaims — disposed of
pretrial — were a sideshow. Indeed, Green itself described those
counterclaims as "weak."
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Nor did the district court overlook Green's modest
successes. In its ruling on costs, the court expressly
acknowledged that Green had prevailed on the counterclaims. It
noted that the counterclaims were filed nearly two years after the
complaint and were resolved, with comparatively little fuss or
furor, prior to trial. Implicit in the court's ruling was the
conclusion, well-supported by the record, that the claims that went
to trial were predominant.
Considerable deference is due to a district court's
decision to award or refrain from awarding costs in a case
producing mixed results. See Roberts v. Madigan, 921 F.2d 1047,
1058 (10th Cir. 1990). Mindful of this precept, we reject Green's
importuning that we vacate the award of costs.
Red Sails in the Sunset
We need go no further. For the reasons elucidated above,
we hold that the district court did not err in denying Green's
motion for a new trial, in amending the judgment, or in taxing
costs in favor of MilSal. Consequently, we give our stamp of
approval to the amended judgment entered below.
Affirmed.
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