Salamone v. Douglas Marine Corp.

APPEARANCES:

LIPPES MATHIAS, WEXLER, FRIEDMAN LLP, Attorneys for Plaintiffs

HARRIS, BEACH LAW FIRM, Attorneys for Defendant

OF COUNSEL:

LEIGH A. HOFFMAN, ESQ.

JASON A. LITTLE, ESQ.

ELLIOT A. HALLAK, ESQ.

DANIEL R. LECOURS, ESQ.

MEMORANDUM-DECISION AND ORDER

Mae A. D'Agostino, U.S. District Judge

I. INTRODUCTION

Plaintiffs, Kenneth E. Salamone and RUFSTR Racing, LLC, ("RUFSTR") commenced this action on September 30, 2019, alleging causes of action including deceptive business practices, breach of contract, unjust enrichment, fraud, conversion, promissory estoppel, and breach of the implied covenant of good faith and fair dealing. See Dkt. No. 1 at ¶¶ 64-128. On April 19, 2021, a four-day jury trial commenced and, on April 22, 2021, the jury entered a verdict in Plaintiffs' favor. Dkt. Nos. 64, 67. The jury awarded Plaintiffs $131, 171.00 in damages. Dkt. No. 67 at 2. On May 19, 2021, Plaintiffs filed a motion to alter the judgment. Dkt. No. 72. On May 21, 2021, Plaintiffs filed a motion for a bill of costs. Dkt. No. 74. On May 24, 2021, Defendant and Plaintiffs filed separate notices of appeal. Dkt. Nos. 75, 77. Currently before the Court are Plaintiffs' motions to alter the judgment and for a bill of costs. Dkt. Nos. 72, 74.^[1]Based on the following, Plaintiffs' motion to alter the judgment is granted and Plaintiffs' motion for a bill of costs is granted-in-part.

II. BACKGROUND

Plaintiffs entered into a Contract of Sale with Defendant on or about December 31, 2015 ("the Contract") for a new Skater 388 Race Boat ("the Skater") and trailer. Dkt. No. 43 at 5. Plaintiff Salamone testified at trial that the boat was to be delivered by August 2016 so that Plaintiffs could race it during the 2016 season. Tr. at 65.^[2] Plaintiffs paid an initial deposit of $300, 000 on December 30, 2015. Dkt. No. 43 at 5. Plaintiffs purchased additional equipment necessary to complete the boat, namely, Mercury Racing Engines, transom assembly, and Super Speed Master Drives. See Id. at 7. Defendant did not complete the boat by August 2016. Id. at 6.

On December 31, 2016, Plaintiffs made a payment of $61, 500. Tr. at 93. On February 28, 2017, Defendant forwarded progress photos of the Skater to Plaintiff Salamone, who responded "Omg. Awesome!!!" Id. at 26. On February 28, 2017, Plaintiffs authorized Defendant to order two Mercury 700 SCI engines. Dkt. No. 43 at 7. On March 2, 2017, Plaintiffs paid $140, 000 for two engines and drives. Id. On June 27, 2017, Defendant and Plaintiff Salamone spoke on the phone. Id. at 8. Defendant told Plaintiff Salamone that the Skater was not completed and Plaintiff Salamone told Defendant that he no longer wanted the Skater. Id. at 116.

On June 27, 2017, Defendant wrote to Plaintiffs and requested permission to sell the Skater. Dkt. No. 43 at 9. Plaintiff Salamone emailed Defendant consenting to the sale. Id. Defendant placed the boat for sale on www.powerboatlistings.com. Id. The listing stated that "the boat can be purchased with or without engines." Id. Defendant initially listed the boat for the Contract price, but dropped the price five times between June 2017 and March 2018 before getting an offer. Id. at 10. Defendant eventually sold the Skater for $300, 000 and the engines for $75, 000. Id. Defendant remitted only $50, 000 to Plaintiffs. Id. at 11.

This action proceeded to trial on April 19, 2021. Dkt. No. 61. On April 22, 2021, the fourth day of trial, the jury entered a unanimous verdict in favor of Plaintiffs. Dkt. No. 67. The jury determined that, (1) Plaintiffs establish by a fair preponderance of the credible evidence that Plaintiffs substantially performed their obligations under the contract; (2) Defendant breached the contract by failing to tender the Skater within a reasonable time; (3) Plaintiffs did not waive their right to insist on tender of the Skater prior to June 27, 2017; (4) Plaintiffs did not breach the contract by rejecting the Skater before Defendant tendered the Skater; (5) Plaintiffs were damaged as a result of Defendant's breach; and (6) Plaintiffs were entitled to $131, 171.00 in damages.^[3]Dkt. No. 67. That same day, the Court entered judgment in Plaintiffs' favor in the amount of $131, 171.00. Dkt. No. 69.

III. DISCUSSION

A. Plaintiffs' Motion to Strike Elliot Hallak's Declaration

Plaintiffs have moved to strike Attorney Elliot Hallak's Declaration offered in support of Defendant's opposition to Plaintiffs' motion to alter judgment. Dkt. No. 86 at 1. Plaintiffs assert that Attorney Hallak's Declaration is factually inaccurate and was used solely "as an opportunity to make a scandalous and wholly irrelevant personal attack on Mr. Salamone." Id. Plaintiffs' motion is granted-in-part and denied-in-part.

Motions to strike "are generally considered redundant and inappropriate by this Circuit's courts." Garcia v. Law Offices of Howard Lee Schiff, P.C., No. 3:16-cv-791, 2018 WL 6590356, *3 (D. Conn. Dec. 14, 2018) (citing Wanamaker v. Town of Westport Bd. of Educ., No. 3:11CV1791, 2013 WL 3816592, *2 (D. Conn. July 22, 2013) (collecting cases on the inappropriateness of motions to strike summary judgment exhibits)). "Rather, '[t]he parties to an action should have faith . . . that the court knows the difference between admissible and non-admissible evidence, and would not base a . . . decision simply upon the self-serving ipse dixit of a particular party.'" Id. (quoting Carone v. Mascolo, 573 F.Supp.2d 575, 580 (D. Conn. 2008)).

Mr. Hallak submitted a declaration in support of Defendant's opposition to Plaintiffs' motion to alter the judgment. Dkt. No. 86-1. While Mr. Hallak's Declaration discusses his foundation for the facts alleged, paragraphs five through eight are wholly irrelevant and serve no purpose to further the Defendant's opposition. See Dkt. No. 85-1 at ¶¶ 5-8.

Defendant's opposition concerns Plaintiffs' allegedly untimely objection to the jury verdict, which Defendant asserts should have been done after the verdict was entered but before the jury was excused. See Dkt. No. 85 at 1. Mr. Hallak's discussion of events that occurred after Court adjourned has absolutely nothing to do with Defendant's motion. As such, the Court will grant Plaintiffs' motion and strike paragraphs five through eight. However, the Court will exercise its discretion in not striking the entire declaration. See Pace v. Air & Liquid Sys. Corp., 171 F.Supp.3d 254, 272 (S.D.N.Y. 2016) (holding that, at summary judgment, a court will not strike an attorney affidavit where, "the Court is capable of discerning from that affirmation what statements were made on the basis of [counsel's] firsthand knowledge; what statements are summaries of evidence in the record; and what documents the Court should review in determining the accuracy of those summaries").

B. Plaintiffs' Motion to Alter Judgment

1. Standard of Review

A motion to alter the judgment pursuant to Federal Rule of Civil Procedure 59(e) may be granted "only if the movant satisfies the heavy burden of demonstrating 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Hollander v. Members of the Bd. of Regents of the Univ. of the State of N.Y., 524 Fed.Appx. 727, 729 (2d Cir. 2013) (quotations and other citation omitted). A motion to alter the judgment is an "extraordinary remed[y] to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Fireman's Fund Ins. Co. v. Great Am. Ins. Co., 10 F.Supp.3d 460, 475 (S.D.N.Y. 2014) (citations and quotations omitted). The Court will not grant a Rule 59(e) motion "unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Id. (citations and quotations omitted).

2. Plaintiffs' Request to Increase Judgment Awarded

Plaintiffs have moved for the Court to increase the judgment entered from $131, 171 to $451, 200 to rectify a clear and fundamental error of law. Dkt. No. 72-4 at 3-8.

a. Waiver

Defendant asserts that Plaintiffs waived their right to challenge the jury award by failing to object to the verdict before the jury was excused. Dkt. No. 85 at 4-5. Plaintiffs claim that they adequately preserved their right to challenge the verdict by requesting that a specific damages award be included in the instructions during the charge conference. Dkt. No. 86 at 2-3. In the alternative, Plaintiffs assert that the award presents a fundamental error of law. Id. at 4.^[4]

"It is well established that a party waives its objection to any inconsistency in a jury verdict if it fails to object to the verdict prior to the excusing of the jury." Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006). "The requirement of a timely exception is not merely a technicality. Its function is to give the court and the opposing party the opportunity to correct an error in the conduct of the trial." Id. (quoting Barry v. Manglass, 55 N.Y.2d 803, 805-06 (1981)) (internal quotation marks omitted). "[T]he Second Circuit[] [provides for a] strict application of the waiver rule." Am. Tech. Ceramics Corp. v. Presidio Components, Inc., 490 F.Supp.3d 593, 624 (E.D.N.Y. 2020) (citation omitted).

An objection to a jury award must have been properly preserved. See Barkley v. Olympia Mortg. Co., 557 Fed.Appx...