Charles Novins v. Kevin Cannon , 557 F. App'x 155 ( 2014 )


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  •                                                          NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ________
    No. 12-1545
    _________
    CHARLES NOVINS, ESQ.
    P.C. and Charles Novins Personally
    v.
    KEVIN A. CANNON; KEVIN MICHAEL FRIES; JIM KELSO;
    VINCENT LAMB; CARL R. OSTEWALD; RHONDA LEA KIRK, a/k/a Rhonda Lea
    Fries; RICK MATHER; ALBERT C. YOUNG; SEAN MONAGHAN; GOOGLE INC.,
    A Corporation doing business in the State of New Jersey;
    TSB BEARING INC., A Corporation doing business in the State of New Jersey;
    DATABASIX, A Corporation doing business in the State of New Jersey; OAKLAND
    COMMUNITY COLLEGE, A Corporation doing business in the State of New Jersey;
    JOHN EDWARD COOK, II
    CARL R. OSTERWALD and YVONNE S. OSTERWALD,
    Third Party Plaintiffs
    and
    VINCENT LAMB,
    Counter Claimant
    v.
    CHARLES NOVINS, ESQ.
    CARL R. OSTERWALD AND YVONNE S. OSTERWALD,
    Appellants
    ________
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. No. 3-09-cv-05354)
    District Judge: Honorable Anne E. Thompson
    _______
    Submitted Under Third Circuit LAR 34.1(a)
    December 12, 2013
    Before: MCKEE, CHIEF JUDGE, FUENTES, and SLOVITER, Circuit Judges
    (Filed: January 15, 2014)
    ______________
    OPINION
    _______________
    SLOVITER, Circuit Judge.
    This case arises from a trial before the District Court where the jury returned a
    verdict in favor of Charles Novins (“Novins”) and against Carol Osterwald and Yvonne
    Osterwald (“the Osterwalds”) on the Osterwalds’ counterclaims for defamation and false
    light. Because the District Court never ruled on the Osterwalds’ motion for a directed
    verdict and thus it is not properly before this court, we shall dismiss this part of the
    appeal for lack of jurisdiction. We shall affirm the District Court’s trial-related rulings
    because it did not abuse its discretion.
    I.
    Novins and his law firm, where he is the sole practitioner, filed the original action
    in the Superior Court of New Jersey alleging defamation by the Osterwalds and others.
    The Osterwalds filed a counterclaim against Novins and his law firm for intentional tort
    acts of defamation and false light. The Osterwalds based their counterclaim on internet
    postings by Novins accusing Carl Osterwald of being a pedophile and homosexual, and
    stating that his wife, Yvonne Osterwald, caught Carl doing such acts.
    Charles Novins, pro se, answered the counterclaims of the Osterwalds, but he did
    not answer the counterclaims on behalf of his law firm—a professional corporation. The
    Osterwalds requested entry of default against the law firm, due to the corporation’s
    2
    failure to respond to the counterclaim, and the Superior Court of New Jersey granted the
    default. The Superior Court of New Jersey later dismissed Novins’ claims for failure to
    respond to discovery. After this, the Osterwalds and others removed the case to the
    District Court.
    At the conclusion of the trial before the District Court, the jury returned a verdict
    of no cause of action on both the defamation and false light counterclaims, and the
    District Court entered a Judgment of No Cause of Action in favor of Novins and against
    the Osterwalds on the counterclaims. After the jury’s verdict, the parties attended a
    settlement conference and reached an agreement. Based on this agreement the District
    Court ordered:
    It appearing that it has been reported to the Court that the above-captioned
    matter has been settled, It is on this 22ND day of December 2011,
    ORDERED that this action be and is hereby dismissed, without costs and
    without prejudice to the right, upon good cause shown within 60 days, to
    reopen the action if the settlement is not consummated. The Court shall
    retain jurisdiction over this matter for the purpose of enforcing the
    settlement.
    (App. 103)
    At the time of the dismissal, a motion for a directed verdict, filed by the
    Osterwalds, and a motion for damages were pending before the District Court. The
    settlement fell through and, after the sixty days contemplated in the District Court’s
    order, the action was dismissed. The District Court’s order, dismissing the case without
    prejudice, terminated those pending motions. Neither party filed to reopen the case
    before the District Court pursuant to its order. Instead, the Osterwalds appealed to this
    court.
    3
    II.
    The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441(a), and
    1446(b). The Clerk of this court originally listed this appeal for possible dismissal and
    ordered the parties to file written responses addressing this court’s jurisdiction. The
    Osterwalds filed a response in support of jurisdiction. Novins did not file a response.
    The jurisdictional issue was then ordered referred to this merits panel.1
    The Osterwalds claim that the District Court’s dismissal of the case constituted a
    denial of their motion for directed verdict which was pending at the time of the dismissal.
    When a case is closed, all pending motions in that case are procedurally terminated by the
    clerk’s office. The Osterwalds cite no precedential case inferring that this termination
    constitutes a denial. There is no order by the District Court ruling on the motion for a
    directed verdict in any way. The logical inference would be that when the parties
    reported settling to the District Court, the District Court by implication would deem the
    motion for a directed verdict withdrawn, based upon the settlement.
    Only a few cases discuss, and the Osterwalds cite none, an implied denial by the
    district court. See Tollett v. City of Kemah, 
    285 F.3d 357
    , 369 fn.* (5th Cir. 2002)
    (“Although the district court, as noted, did not explicitly deny the motion, the entry of its
    ‘FINAL JUDGMENT’ was an implicit denial of any outstanding motions: in this case,
    that for a new trial.” (citing United States v. Depew, 
    210 F.3d 1061
    , 1065 (9th Cir. 2000)
    (where judgment of conviction entered, court of appeals treated district court’s failure to
    rule on a motion for an expert as a denial of the motion)); Davis v. United States, 961
    1
    Novins has yet to note an appearance in the case or file an opposition.
    
    4 F.2d 53
    , 57 fn. 6 (5th Cir. 1991) (“The district court did not deny Davis’ motion to
    amend; rather, the district court failed to rule on the motion. The district court rendered a
    dispositive order that it designated as a final order of dismissal. Thus, the district court
    disposed of all the claims before it, but failed to address one outstanding motion. Under
    these circumstances, the motion to amend was impliedly denied.”). The instant case
    differs from those cases because here the District Court ultimately dismissed the case
    without prejudice upon its belief that the parties had settled. Although it entered a
    judgment on the record with regards to the jury’s verdict, it did not enter a final judgment
    that disposed of all the claims before it.
    In sum, there is no denial of the motion, because the District Court closed the case
    upon the belief that the case had settled. There is no final order on the motion for a
    directed verdict and thus, this court does not have jurisdiction pursuant to 28 U.S.C.
    § 1291. The Osterwalds put forth no further statutory basis for our jurisdiction with
    regards to the motion for a directed verdict. Thus, we shall dismiss this part of the appeal
    for lack of jurisdiction.
    However, prior to the dismissal, the District Court entered judgment on the record,
    based on the jury verdict, in favor of Novins and against the Osterwalds on the
    Osterwalds’ counterclaims for defamation and false light. The judgment is a final order
    appealable under 28 U.S.C. § 1291, and this court can review the challenges to the trial
    and jury instructions.2
    2
    Additionally, dismissals without prejudice have been held to be final and appealable if
    they end the suit so far as the District Court was concerned. See Trent v. Dial Medical of
    5
    III.
    The Osterwalds raise four issues on appeal. First, whether the District Court erred
    in not instructing the jury regarding defamation per se. Second, whether the trial court
    erred by permitting Novins to call witnesses and present exhibits not listed in a pretrial
    memorandum. Third, whether the trial court erred by permitting the jury to decide
    liability regarding the Law Firm of Charles Novins. Fourth, whether the trial court
    improperly denied the Osterwalds’ motion for a directed verdict. As discussed above, the
    trial court did not “deny” the motion for directed verdict and thus, that is not properly
    before this court. The other three issues we discuss in turn.
    A. The Jury Instructions Regarding Defamation Per Se
    Whether the district court properly refused to give certain jury instructions is
    reviewed for an abuse of discretion, but this court exercises plenary review in
    determining whether the jury instructions state the proper legal standard. See United
    States v. Coyle, 
    63 F.3d 1239
    , 1245 (3d Cir. 1995). “A mistake in a jury instruction
    constitutes reversible error only if it fails to fairly and adequately present the issues in the
    case without confusing or misleading the jury.” Donlin v. Phillips Lighting N. Am. Corp.,
    
    581 F.3d 73
    , 79 (3d Cir. 2009) (citing United States v. Ellis, 
    156 F.3d 493
    , 498 fn. 7 (3d
    Cir. 1998)).
    In this case, the District Court provided the following instruction with regards to
    defamation:
    FL, Inc., 
    33 F.3d 217
    (3d Cir. 1994), superseded by statute on other grounds; Tiernan v.
    Devoe, 
    923 F.2d 1024
    , 1031 (3d Cir. 1991).
    6
    Defamation is defined in the law or is viewed in the law as a harm to
    ones reputation. That’s the area of law in which we’re dealing.
    Defamation has to do with your reputation.
    In order for a complaining party to win his or her claims against
    another for defamation, the party must prove by a preponderance of the
    credible evidence that the defamer communicated to someone other than
    the complaining party a false and defamatory statement of fact concerning
    the complaining party and that the defamer had actual knowledge that the
    statement was false or acted in reckless disregard of its truth or falsity or
    acted negligently in failing to ascertain the falsity of the statement.
    (App. 198) The Osterwalds wanted the District Court to instruct the jury on New Jersey
    Model Jury Charge 8.46, regarding general damages for slander per se. However, the
    District Court concluded:
    And my reading of the cases and Model Jury Charge indicated to
    me, number one, the law is very unsettled in this area. The Supreme Court
    hasn’t definitively stated. It would appear that the four levels of
    speech/slander are slander. Slander is not the same as defamation. That’s
    the problem. Slander has been treated separately, but no one has divided
    defamation into that first four levels that would presume damages.
    And the way the cause of action now reads, defamation is an attack
    upon reputation in which damages have to be shown. Now that’s what I
    see the case is saying, but the Supreme Court just has not given us the
    guidance to give us the definitive answer.
    (App. 195-96)3
    In their brief, the Osterwalds argue that the defamation per se instruction should
    have been included based on the facts of the case, but fail to provide any case law
    addressing the District Court’s concern that at this time the case law does not require a
    3
    Counsel for the Osterwalds did not object on the record to the jury instruction; however,
    pursuant to Federal Rule of Civil Procedure 51(d)(1)(B), counsel can still assign error to
    the instruction if the party requested the instruction and the court rejected the request in a
    definitive ruling on the record. The above ruling by the District Court satisfies this
    requirement and thus, this court can review the jury instruction despite counsel’s failure
    to object.
    7
    jury instruction regarding defamation per se. A review of the record demonstrates that
    the parties discussed law review articles that described the state of damages for
    defamation in New Jersey; however, none of that information was submitted to this court
    in the record or Appellant’s brief. An independent review of New Jersey case law
    supports the District Court’s conclusion that the area of law is not entirely settled and
    often fact-sensitive. See, e.g., Rocci v. Ecole Secondaire Macdonald-Cartier, 
    755 A.2d 583
    , 587 (N.J. 2000) (concluding that the plaintiff could not rely on the doctrine of
    presumed damages without a finding that defendant published the statement with
    knowledge it was false or with reckless disregard of whether it was false); WJA v. DA, 
    43 A.3d 1148
    , 1154-55 (N.J. 2012) (per curiam) (discussing the vitality of the doctrine of
    presumed damages in a private citizen/private concern case and stating that “it seems to
    us that the doctrine of presumed damages continues to have vitality by permitting a
    plaintiff to survive summary judgment and to obtain nominal damages at trial”).
    It was certainly not an abuse of discretion for the District Court to conclude that
    the law did not require an instruction on defamation per se. Even if under a plenary
    review, this Court concluded such an instruction was warranted, there is no evidence in
    the record that the District Court’s instruction failed to fairly and adequately present the
    issues to the jury in a clear manner. Therefore, there is no reversible error with regard to
    the District Court’s failure to instruct the jury regarding defamation per se.
    B. Novins’ Presentation of Witnesses and Exhibits
    We exercise plenary review over the District Court’s interpretation of the rules of
    evidence; however, assuming that the evidence could be admissible in some
    8
    circumstances, we review the District Court’s decision to admit that evidence for abuse of
    discretion. United States v. Givan, 
    320 F.3d 452
    , 460 (3d Cir. 2003). “Admission of
    evidence is an abuse of discretion if ‘the district court’s action was arbitrary, fanciful or
    clearly unreasonable . . . . We will not disturb a trial court’s exercise of discretion unless
    no reasonable person would adopt the district court’s view.’” Ansell v. Green Acres
    Contracting Co., Inc., 
    347 F.3d 515
    , 519 (3d Cir. 2003) (citing Stecyk v. Bell Helicopter
    Textron, Inc., 
    295 F.3d 408
    , 412 (3d Cir. 2002)).
    The Osterwalds contend that Novins’ failure to participate in the pretrial
    conference barred him from presenting witnesses and exhibits at trial. The District Court
    permitted Novins to call Carl Osterwald and Dr. Vince Lamb (another defendant not part
    of this appeal) and to admit certain letters into evidence. The Osterwalds claim that
    admission of these witnesses and exhibits was “tantamount to ‘trial by ambush’, as
    neither counsel had any advance notice of the intended introduction of these documents
    or any expectation of testimony by the witnesses by way of the pretrial memorandum or
    pretrial order.” (Appellant’s Br. at 23) The Osterwalds cite no precedent stating that a
    court can only permit evidence listed in the pretrial order; especially in a case such as
    this, where only the Osterwalds drafted the pretrial order (and the other defendant, Dr.
    Vincent Lamb, who is not part of this appeal). The Magistrate Judge wrote on the order,
    “Plaintiff did not participate in the preparation of this order.” (App. 25)
    The Osterwalds do not put forth a rule of evidence prohibiting admission of the
    evidence at issue. With regards to Carl Osterwald, the District Court permitted Novins to
    call him as a witness for fifteen minutes to ask questions on direct examination that he
    9
    had not had the opportunity to ask on cross-examination. With regards to the exhibits,
    the District Court concluded one letter was the “document which launched the dispute,”
    (App. 167) and permitted it read to the jury. Certainly, Novins should have been a more
    active participant in pretrial litigation and specifically the preparation of the pretrial order
    which serves to guide the trial of a case. But, based on the record before us, we cannot
    conclude that “no reasonable person would adopt the district court’s view” that this
    evidence was admissible. 
    Ansel, 347 F.3d at 519
    . Therefore, there is no error in the
    District Court’s admission of evidence during the trial.
    C. Jury’s Decision Regarding Liability of Novins’ Law Firm
    The Superior Court of New Jersey entered default against the Law Firm of Charles
    Novins prior to removal of the case because an attorney never responded to the
    counterclaims on behalf of the Law Firm of Charles Novins. This default transferred to
    federal court when the case was removed from state court. 28 U.S.C. § 1450. The
    Osterwalds claim that the District Court ignored the entry of default and permitted the
    jury, through jury instructions, to determine liability and damages regarding the law firm
    as opposed to solely the issue of damages.
    The Osterwalds characterize this error as a refusal to give certain jury instructions.
    Whether the District Court properly refused to give certain jury instructions is reviewed
    for an abuse of discretion, but this court exercises plenary review in determining whether
    the jury instructions state the proper legal standard. 
    Coyle, 63 F.3d at 1245
    (citation
    omitted). “A mistake in a jury instruction constitutes reversible error only if it fails to
    10
    fairly and adequately present the issues in the case without confusing or misleading the
    jury.” 
    Donlin, 581 F.3d at 79
    (internal quotations and citation omitted).
    The Osterwalds’ characterization of the District Court’s actions, based on an
    independent review of the record, seems slightly inaccurate. The District Court
    concluded that it was too complicated to split up Novins and his law firm on the verdict
    sheet, instead stating that if the Osterwalds won against Novins, then they would have
    won against the law firm as well. From the limited passage included in the record, it is
    not clear whether the District Court intended to take this issue up again after the trial,
    which is quite plausible, given that there is no mention of the Law Firm of Charles
    Novins on the jury verdict form. Instead, each question asked whether the Osterwalds
    proved false light and defamation by a preponderance of the evidence by “Mr. Novins.”
    (App. 242-44 (“that Mr. Novins defamed him”, “that Mr. Novins placed him in a false
    light”)). Also, the judgment that the District Court entered states that the jury “returned a
    judgment of NO CAUSE FOR ACTION to be entered in favor of plaintiff/counter
    defendant Charles Novins, Esq. and against” the Osterwalds. (App. 102) Thus, it does
    not appear from the record that a judgment was ever entered in favor of or against the law
    firm pursuant to Federal Rule of Civil Procedure 55(b)(2).4 It is quite likely that the
    District Court would have taken up the issue of whether to enter default judgment against
    4
    The District Court never entered default judgment against the law firm, although it
    upheld the entry of default. It appears from the record that Dr. Lamb filed a motion for a
    default judgment against the law firm (App. 18), which the Osterwalds did not join, and
    which the District Court denied (App. 21, Dkt. 85). The text of the District Court’s order
    denying the default judgment is not included in the appendix. There is no evidence in the
    record that the Osterwalds ever filed a motion for default judgment pursuant to Federal
    Rule of Civil Procedure 55(b)(2).
    11
    the law firm, again after the conclusion of the trial, had the case not settled and not been
    dismissed.
    Perhaps, had the parties not agreed to settle the case, this is an issue the District
    Court would have addressed, but because the Osterwalds chose to appeal instead of
    reopening the case before the District Court, based on this record, we conclude that there
    was no reversible error regarding the District Court’s jury instructions/treatment of the
    law firm during the trial.
    IV.
    This court has jurisdiction to hear only the trial-related appeals and shall dismiss
    the appeal regarding the Osterwalds’ Motion for a Directed Verdict. With regards to the
    trial issues, we shall affirm the District Court because it did not abuse its discretion.
    12