Goldberg v. 401 N. Wabash Venture LLC

JACQUELINE GOLDBERG, Plaintiff,

v. 401 NORTH WABASH VENTURE LLCand TRUMP CHICAGO MANAGING MEMBER LLC, Defendants.

Case No. 09 cv 6455

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Dated: May 21, 2013

Judge Amy J. St. Eve

DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF

LAW ON PLAINTIFF'S CLAIM OF EMOTIONAL DAMAGES AND

ALTERNATIVE MOTION TO BAR PLAINTIFF'S ATTORNEYS FROM

SUGGESTING TO THE JURY A SPECIFIC AWARD OF EMOTIONAL DAMAGES

Stephen Novack

John F. Shonkwiler

Rebekah H. Parker

NOVACK AND MACEY LLP

100 North Riverside Plaza

Chicago, IL 60606

(312) 419-6900 Defendants 401 North Wabash Venture LLC and Trump Chicago Managing Member LLC, by and through their attorneys, pursuant to Federal Rule of Civil Procedure 50(a), respectfully submit this Motion for Judgment as a Matter of Law on Plaintiff's Claim of Emotional Damages and Alternative Motion to Bar Plaintiff's Attorneys From Suggesting to the Jury a Specific Award of Emotional Damages.

LEGAL STANDARD

Judgment as a matter of law is appropriate when "a party has been fully heard on an issue . . . [and] a reasonable jury would not have a legally sufficient evidentiary basis to find for that party on that issue." Fed. R. Civ. P. 50(a)(1). "In other words, the question is simply whether the evidence as a whole, when combined with all reasonable inferences permissibly drawn from that evidence, is sufficient to allow a reasonable jury to find in favor of the plaintiff. '[A] mere scintilla' of evidence, however, will not suffice." Hall v. Forest River, Inc., 536 F.3d 615, 619 (7th Cir. 2008) (citations omitted).

ARGUMENT

Plaintiff's claims under the Illinois Consumer Fraud Act (the "Fraud Act") and the Interstate Land Sales Full Disclosure Act (the "Land Sales Act") both seek damages for "emotional distress, aggravation, delays, [and] inconveniences, proximately caused by deceptive and/or unfair practices" (collectively, "emotional damages"). (Dkt. No. 268, Pls.' Itemiz. of Damages.) Yet, at trial, Plaintiff presented no evidence that would support an award of emotional damages under establish Seventh Circuit law.

Plaintiff's only evidence that could arguably relate to her emotional damages claim comes from her own self-serving testimony and the testimony of her agent Terry Vogue. Specifically, Plaintiff testified as follows:

Q. Jackie, how did you feel when you first heard that Ms. Binosi had confirmed that these things were being removed [from the common elements]?

A. I thought I was in never-never land.

Q. What do you mean?

A. We have -- we have -- an agreement. All of a sudden, it's all been turned topsy-turvy. (5/20/13 Tr. at 1429:1-7.)

* * *

Q. Can you tell the ladies and gentlemen of the jury how, if at all, you know, this litigation has affected you?

A. I've been angry. I have been -- felt like I have been -- conned. I have worried about what the solutions -- what solutions -- I could make. It has affected my -- just, now, I have to worry about whether my husband's caregivers are there on time, so I can come and spend all day here; and, how is he -- I mean, there's a lot of worry going into something like this. I didn't worry as much sometimes as I did at others, and I tried not to be angry about it. (5/20/13 Tr. at 1443:7-17.)

In a last-ditch effort to save Plaintiff's emotional damages claim, Ms. Vogue, testified that she "observed" Plaintiff as feeling "upset," "disturbed," "stressed," and "defrauded" after she reviewed the Fourth Amendment. She also noted that Plaintiff is not outward about her feelings. No other evidence or testimony pertaining to emotional damages was offered.

As described in Part I below, these vague and conclusory statements fail to support a claim for emotional damages as a matter of law for at least four reasons. First, no reasonable jury could find that the above-described testimony supports an award of emotional damages with "reasonable certainty" and satisfies the Seventh Circuit's "strict standard for a finding of emotional damage." Second, Plaintiff's testimony describing how the litigation has affected her cannot, as a matter of law, support a claim for emotional damages. Third, emotional damagesare not available to Plaintiff under the Land Sales Act. Fourth, Plaintiff cannot recover emotional damages under the Fraud Act because she has not suffered any actual injury.

In Part II below, Defendants demonstrate that -- because Plaintiff is not entitled to an award of emotional damages -- all remaining claims are equitable. Accordingly, she is not entitled to a trial by jury.

Finally, if the Court nonetheless allows Plaintiff to pursue emotional damages on one or both of her claims, then Part III below seek to bar Plaintiff from suggesting to the jury a specific award of emotional damages. At the very least, Plaintiff should not be permitted to ask the jury to award $500,000 an amount that is patently unreasonable.

I. PLAINTIFF CANNOT RECOVER EMOTIONAL DAMAGES

A. No Reasonable Jury Could Find That Plaintiff's Testimony Satisfies The Seventh Circuit's "Strict Standard For A Finding Of Emotional Damage"

To prevail on this claim (and any other claim of damages), Plaintiff must prove her alleged damages "to a reasonable degree of certainty." Haslund v. Simon Prop. Grp., Inc., 378 F.3d 653, 658 (7th Cir. 2004) (applying Illinois law); see also Scott v. Peterson, No. 09 C 1633, 2010 WL 3173001, at *5 (N.D. Ill. Aug. 11, 2010) (plaintiff failed to prove emotional damages "with the reasonable certainty required"). "[B]ecause they are so easy to manufacture," the Seventh Circuit has "maintained a strict standard for a finding of emotional damage." Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 609 (7th Cir. 2005) (citation omitted); accord Bassett v. I.C. Sys., Inc., 715 F. Supp. 2d 803, 812-13 (N.D. Ill. 2010) (St. Eve, J.). Further, Plaintiff must also prove with reasonable certainty that Defendants' alleged wrongful conduct caused her alleged emotional damages. Doe v. United States, 976 F.2d 1071, 1085 (7th Cir. 1992). As will now be explained, Plaintiff has not met this burden.

1. Plaintiff Failed to Prove Emotional Damages With Sufficient Certainty

Plaintiff's "evidence" of emotional damages is wholly inadequate. It consists solely of Plaintiff's own self-serving testimony and the conclusory testimony of her agent. As to Plaintiff, her testimony about how the litigation has impacted her should be disregarded for the reasons described in the next section, and her testimony about feeling like she was in "never-never land" is far too vague to support an award of emotional damages. Plaintiff presented no disinterested fact witnesses, no expert witness, and no documents to support her claim. She did not describe any alleged emotional damages in detail; she did not testify that she suffered any physical symptoms as a result of her alleged emotional distress; and she did not testify that she sought the care or treatment of any medical or psychological professionals.

Ms. Vogue's testimony about how she thought Plaintiff looked after reviewing the Fourth Amendment also does not support an award of emotional damages with sufficient certainty. Ms. Vogue testified only generally that Plaintiff "appeared" "upset," "disturbed," "stressed," and "defrauded" without providing any corroborating details -- such as discussions with Plaintiff -- to substantiate her claims. Surely, if Ms. Vogue were genuinely concerned about Plaintiff's emotional well-being, she would have asked Plaintiff about how she was feeling.

Further, Ms. Vogue's testimony about how Plaintiff felt after receiving the Fourth Amendment actually contradicts -- rather than corroborates -- Plaintiff's own testimony about the subject. After being directly asked how the Fourth Amendment made her feel, Plaintiff testified only that it made her feel like she was in "never-never land"; she never mentioned any other feelings or emotions. Even if Plaintiff does not generally speak about her emotions, she is the one who put her emotions at issue by filing this lawsuit and seeking emotional damages. She should not be permitted to seek an award of emotional damages without even mentioning how, ifat all, the Fourth Amendment affected her emotionally.

Under these circumstances, Plaintiff has failed to prove her alleged emotional damages "with the reasonable certainty required" (Scott, supra) -- especially in light of the fact that emotional damages "are so easy to manufacture" and subject to a "strict standard" (Ruffin, supra). See, e.g., Bagby v. Experian Info. Solutions, Inc., 162 F. App'x 600, 605 (7th Cir. 2006) (affirming dismissal of emotional distress claim where plaintiff "did not seek any medical or psychological treatment for the emotional distress she claims" and "failed to describe her emotional distress in 'reasonable detail' or with any certainty"); Thompson v. Gateway Fin. Servs., Inc., 10 C 7658, 2012 WL 5989240, at *4 (N.D. Ill. Nov. 29, 2012) (plaintiffs' claim for emotional distress failed where they offered no medical records into evidence and relied upon their own self-serving testimony and their pastors' testimony that they sought counsel); Scott, 2010 WL 3173001, at *5 (plaintiff failed to prove emotional damages "with the reasonable certainty required," where he had no medical bills, psychologist visits, or other testimony to corroborate his statements); Lancaster v. Trans Union, LLC, 09 C 1698, 2010 WL 4625345, at *4 (N.D. Ill. Nov. 4, 2010) (plaintiff failed to "satisfy the Seventh Circuit's high threshold for proof of damages for emotional distress" where she did not seek treatment for her alleged distress and relied on her conclusory statements and her fiancée's speculation that she was upset and depressed); Concealed Carry, Inc. v. City of Chicago, 02 C 7088, 2006 WL 2860975 (N.D. Ill. Sept. 28, 2006) (plaintiff's "claims for emotional damages fail as a matter of law" where plaintiff "did not see any health care professional or have...