United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON, UNITED STATES DISTRICT JUDGE
court has before it Progressive Emu's Motion to Alter,
Amend or Vacate Directed Verdict and Interlocutory Orders,
Renewed Motion for Judgment as a Matter of Law and/or Motion
for New trial, doc. 258. This motion follows a three day jury
trial during which the court granted directed verdicts in
favor of Nutrition and Fitness, Inc. with regard to Pro
Emu's claim for unpaid royalties related to alleged
off-the-book sales and NFI's claim that it overpaid Pro
Emu for certain orders of emu oil. Doc. 255 at 1-2. Pro
Emu's breach of contract claim for unpaid royalties on
reported sales in March and April 2012 was submitted to the
jury, which found against Pro Emu. Id. at 2.
Accordingly, the court entered judgment in favor of NFI on
that claim. Id.
now argues that it is entitled to (1) either a new trial or
judgment as a matter of law with respect to its breach of
contract claim for unpaid royalties from March and April
2012; and (2) a new trial on its damages claim based on
off-the-book sales. These arguments are now fully briefed;
docs. 258-1 and 273, and ripe for review. Upon careful
consideration of the record and the parties' briefs, Pro
Emu's motion is due to be denied.
STANDARD OF REVIEW
applies “precisely the same” standard for
granting a Rule 50(b) motion for judgment as a matter of law
as it does for “‘granting the pre-submission
motion [under 50(a)].'” McGinnis v. Am. Home
Mortg. Servicing, Inc., 817 F.3d 1241, 1254 (11th Cir.
2016) (quoting Chaney v. City of Orlando, 483 F.3d
1221, 1227 (11th Cir. 2007)). Accordingly, “in ruling
on a party's renewed motion under Rule 50(b) after the
jury has rendered a verdict, [the] court's sole
consideration of the jury verdict is to assess whether that
verdict is supported by sufficient evidence.”
Chaney, 483 F.3d at 1227. In other words, when
“considering a Rule 50(b) motion after the jury
verdict, ‘only the sufficiency of the evidence matters.
The jury's findings are irrelevant.'” Cadle
v. GEICO Gen. Ins. Co., 838 F.3d 1113, 1121 (11th Cir.
2016) (quoting Connelly v. Metro Atlanta Rapid Transit
Auth., 764 F.3d 1358, 1363 (11th Cir. 2014)). In
considering the sufficiency of the evidence,
“‘the court must evaluate all the evidence,
together with any logical inferences, in the light most
favorable to the non-moving party.'”
McGinnis, 817 F.3d at 1254 (quoting Beckwith v.
City of Daytona Beach Shores, 58 F.3d 1554, 1560 (11th
Cir. 1995)). The court bears in mind, however, that,
“‘[i]t is the jury's task-not [the
court's]-to weigh conflicting evidence and inferences,
and determine the credibility of witnesses.”
McGinnis, 817 F.3d at 1254 (quoting Shannon v.
Bellsouth Telecomms., Inc., 292 F.3d 712, 715 (11th Cir.
seeking relief after an unfavorable jury verdict may also
request a new trial under Rule 59(a) on the grounds that
“the [jury's] verdict is against the weight of the
evidence, that the damages are excessive, or that, for other
reasons, the trial was not fair . . . and may raise questions
of law arising out of alleged substantial errors in admission
or rejection of evidence or instructions to the jury.”
Montgomery Ward & Co. v. Duncan, 311 U.S. 243,
251 (1940). Thus, “‘in a motion for a new trial
the judge is free to weigh the evidence, '”
Rabun v. Kimberly-Clark Corp., 678 F.2d 1053, 1060
(11th Cir. 1982) (quoting King v. Exxon Co., U.S.A.,
618 F.2d 1111, 1115 (5th Cir. 1980)), and “may, in
[her] discretion, grant [the motion] ‘if in [the
judge's] opinion, the verdict is against the clear weight
of the evidence . . . or will result in a miscarriage of
justice, even though there may be substantial evidence which
would prevent the direction of a verdict.'”
McGinnis, 817 F.3d at 1254 (quoting Hewitt v.
B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir.
the court may alter or amend a ruling under Rule 59(e) if
“a party presents the court with evidence of an
intervening change in controlling law, the availability of
new evidence, or the need to correct clear error or manifest
injustice.” Summit Med. Ctr. of Ala., Inc. v.
Riley, 284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003). Rule
59(e) motions, however, cannot be used “to relitigate
old matters, [or to] raise argument or present evidence that
could have been raised prior to the entry of judgment.”
Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d
757, 763 (11th Cir. 2005). Indeed, the Eleventh Circuit has
said “a motion to reconsider should not be used by the
parties to set forth new theories of law . . . absent some
showing that” the theory was previously unavailable.
Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th
Breach of Contract Claim for Unpaid Royalties
years of extensive litigation, including two summary judgment
rulings and an appeal, the core issue remaining for trial was
Pro Emu's claim that NFI breached the parties'
contract by failing to pay Pro Emu royalties in March and
April 2012. Doc. 258-1 at 2. NFI argued that it was excused
from making royalty payments because Pro Emu had already
breached the contract by failing to use its best efforts to
fill NFI's March 2012 order for emu oil. Doc. 231 at
6-10. At the close of NFI's case-in-chief, Pro Emu moved
for a judgment as a matter of law asserting that it lacked
both the money and the inventory to supply NFI's request
for oil, and that it had accordingly satisfied the
contract's “best efforts” requirement.
See Doc. 264 at 171-73. The court denied the motion,
id. at 173, which Pro Emu now moves to renew
pursuant to Rule 50(b) of the Federal Rules of Civil
Procedure. In the alternative, Pro Emu asks for a new trial
on this issue pursuant to Rule 59(a). Doc. 258-1 at 9, 11.
Renewed Request for Judgement as a Matter of Law on the
“Best Efforts” Issue
support of its Rule 50(b) motion, Pro Emu primarily argues
that the evidence is undisputed that it lacked the emu oil in
March 2012 to supply NFI's order and that, under the
Eleventh Circuit's mandate, the contract expressly
limited NFI's remedy to seeking replacement oil from
other sources. Thus, Pro Emu argues that its actions
constituted best efforts and that, in any event, NFI was not
excused from making royalty payments.
parties generally agree on what the trial evidence showed. To
summarize briefly, Pro Emu introduced evidence indicating
that, at the time of NFI's March 2012 order for emu oil,
it lacked both the oil to fill the order and the money to
purchase replacement oil from another source. Doc. 264 at
172-73. The evidence also indicated that Pro Emu did not seek
to acquire oil in the spot market via credit, as it
subsequently demonstrated the ability to do, did not
communicate with NFI regarding the oil shortage beyond
stating it was unable to fill the order at the same time it
provided NFI notice that it had filed the instant lawsuit,
and that it otherwise failed to assist NFI in finding a
replacement source for the oil. Doc. 263 at 92-95, 97-100. In
its motion, Pro Emu seeks to avoid the import of this
undisputed evidence by seeking to read the “best
efforts” provision out of the contract by arguing that
NFI's sole remedy for Pro Emu's failure to fill an
order was to purchase replacement oil in the market. However,
this argument is foreclosed by a prior ruling of this court
in which Judge William Acker interpreted the parties'
contract to resolve this very issue explaining that
“[P]ro Emu [was] . . . required to use all reasonable
efforts in good faith to fulfill NFI's orders for emu
oil.” Doc. 82 at 8. Accordingly, Judge Acker found that
the limitation on NFI's remedies imposed by ¶ 2.2
applied only to “failures to supply emu oil after Pro
Emu [had] given its best efforts.” Id. at 9.
the law of the case doctrine, once “a court decides
upon a rule of law, that decision should continue to govern
the same issues in subsequent stages [of] the same
case.” Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 816 (1988) (quotation omitted).
Although this doctrine is “discretionary and does not
limit a court's power to reconsider its own decisions . .
. ‘where litigants have once battled for the
court's decision, they should neither be required nor
without good reason permitted, to battle for it
again.'” Virgin Atl. Airways, Ltd. v. Nat'l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)
(quoting Zdanok v. Glidden Co., 327 F.2d 944, 953
(2d Cir. 1964)). The rule serves “important goals vital
to just and efficient judicial process, including the
provision of an end to litigation . . . and the promotion of
consistency in rulings between courts.” Klay v. All
Defendants, 389 F.3d 1191, 1197 (11th Cir. 2004).
Indeed, “as matters wend closer to final disposition,
stability takes on increased importance.” McSurely
v. McClellan, 753 F.2d 88, 96 (D.C. Cir. 1985)
justify revisiting this long-settled legal issue, Pro Emu
must show that Judge Acker's ruling constituted clear
error,  a showing that it has failed to make.
Indeed, Pro Emu had the opportunity to challenge Judge
Acker's construction of the contract on appeal, and it
apparently elected not to do so. Further, during the trial,
one of Pro Emu's executive officers, Andrew Martin,
agreed that “an accurate statement of [Pro Emu's]
obligations under the contract” was the requirement
that Pro Emu “use its best efforts to fulfill all
orders as quickly as is reasonably possible.” Doc. 263
at 92. Accordingly, NFI's obligation to pay royalties was
contingent on Pro Emu's use of its best efforts which
Georgia law defines as the “use [of] reasonable
diligence as well as good faith in [the] performance of the
contract.” Flynn v. Gold Kist, Inc., 353
S.E.2d 537, 539 (Ga.Ct.App. 1987) (quotation omitted). NFI,
as described, presented evidence showing that Pro Emu did not
take any steps, beyond bare notification, to supply the
requested oil in March 2012. See Doc. 263 at 92-95,
97-100. This evidence is sufficient, particularly when
evaluated in favor of NFI as the non-movant, to support a
jury verdict finding that Pro Emu failed to use its best
efforts to supply NFI's March 2012 order for emu oil.
See Cleveland v. Home Shopping Network, Inc., 369
F.3d 1189, 1192 (11th Cir. 2004) (explaining the district
court should only enter judgment as a matter of law
“when there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that
Motion for a New Trial on the “Best Efforts”
also moves for a new trial pursuant to Rule 59(a) on this
issue raising three primary contentions of error: (1) that
the court improperly instructed the jury regarding the burden
of proof; (2) that the court improperly prevented Pro Emu
from presenting evidence that NFI did not require the oil it
ordered in March 2012; and (3) that the jury's verdict
was against the great weight of the evidence. The court
addresses each of these contentions in turn.
Whether the Jury was Properly Instructed on “Best
on its trial objections and on Judge Acker's previous
opinion interpreting the parties' contract, Pro Emu
asserts that the court erroneously assigned the burden of
proof by instructing the jury that “[y]ou must
determine whether Pro Emu has proven, based on the
preponderance of the evidence, that it used its best efforts,
as defined here, to fulfill NFI's March 2012
orders.” Doc. 247 at 8. Other than its bare assertion of
error, however, Pro Emu has failed to provide the court with
any basis in Georgia law for finding that the court's
instructions were erroneous. See Doc. 258-1 at 3-4,
11. Instead, Pro Emu relies entirely on a prior ruling in
this case in which Judge Acker opined that “Paragraph
2.2 [of the parties' contract], imposes a ‘best
efforts' standard . . . [leaving] a wide open door for
disagreement between the parties that will not end until
after a prolonged jury trial in which NFI will have the
burden of proving that Pro Emu did not use its best
efforts.” Doc. 82 at 30-31. Of course, in that
particular ruling, Judge Acker was specifically addressing
the parties' “cross-motions for summary
adjudication of disputed contract interpretation
issues” not the parties' respective trial burdens,
an issue which was not before the court at that time.
Id. at 1. This renders Judge Acker's statement
regarding the proper allocation of the burden of proof on the
best efforts issue mere dicta because resolving the question
had no effect on the court's resolution of the
interpretative issues actually before it. See United
States v. Eggersdorf, 126 F.3d 1318, 1322 n.4 (11th Cir.
1997) (defining dicta as portions of an opinion that are
“not necessary to deciding the case then before [the
court]”). And, of course, the court is “not bound
by the dicta contained in [its] earlier opinions.”
United States v. Birge, 830 F.3d 1229, 1233 (11th
a review of Georgia law belies Pro Emu's contention of
error. Indeed, Georgia courts have explicitly held that
“[a] plaintiff seeking to enforce an alleged contract
has the burden and must show performance on [her] part;
otherwise, [she] is not entitled to a verdict against the
defendant.” Jones v. Brawner, 287 S.E.2d 255,
256 (Ga.Ct.App. 1981); Clark's Super Gas, Inc. v.
Tri-State Sys., Inc., 200 S.E.2d 472, 473 (Ga.Ct.App.
1973) (explaining that “[t]he plaintiff [has] the
burden of proving that [she] performed the contract according
to its terms, or for some legal reason such performance on
[her] part was as a matter of law excused”) (quotation
omitted); Cleveland v. Schwaemmle, 101 S.E.2d 611,
613 (Ga.Ct.App. 1957) (holding “[w]here the plaintiff
bases [her] right to recover upon an express contract . . .
[she] cannot recover unless [she] has performed all [her]
obligations under the contract”) (quotation omitted).
As described above, the parties' contract required Pro
Emu to use its best efforts to fill NFI's orders for emu
oil. To the extent that Pro Emu seeks to recover unpaid
royalties under the contract, it was required to show that it
properly performed its own obligations, including its
obligation to use its “best efforts, ” as the
jury instructions correctly state. Doc. 247 at 8-9.
even assuming that the challenged jury instruction was
erroneous, the court is not left with a “substantial
and ineradicable doubt as to whether the jury was properly
guided in its deliberations.” Simmons, 879
F.3d at 1162 (quotation omitted). Viewed as a whole, the
instructions appropriately guided the jury to the central
issue in the case-whether “Pro Emu breached the
contract by failing to use its best efforts to supply emu oil
to NFI as required under the contract.” Doc. 247 at 8.
As the instructions explain, if “Pro Emu did not use
its best efforts . . . that breach would excuse NFI of
performance of its duties . . . [but] if Pro Emu did use its
best efforts . . . NFI was also required to perform its
obligations under the contract.” Id. at 8-9.
“[T]here is no error even though an isolated clause may
be inaccurate . . . or otherwise subject to criticism”
so long as “the instructions, taken together, properly
express the law applicable to the case.” State Farm
Fire & Cas. Co. v. Silver Star Health & Rehab,
739 F.3d 579, 585 (11th Cir. 2013) (quotation omitted). When
read as a whole, the instructions, along with the
interrogatory, which asked only if “Pro Emu fail[ed] to
use its best efforts to fulfill NFI's orders for emu oil
in March 2012, ” doc. 250, provided the jury with the
appropriate legal guidance as to the resolution of the best
efforts issue. As such, the court cannot find, “in view
of the allegations of the complaint, the evidence presented,
and the arguments of counsel, ” that “the jury
was misled.” Nat'l Distillers & Chem. Corp.
v. Brad's Mach. Prods., Inc., 666 F.2d 492, 497
(11th Cir. 1982) (quotation omitted).
any potential error was harmless. Both Pro Emu and NFI
presented affirmative evidence in support of their respective
positions. Pro Emu submitted evidence showing that it had no
money to purchase oil and lacked the inventory to fill
NFI's order on its own, and argued, on that basis, that
it had fulfilled its best efforts obligation. Doc. 264 at
219-23. In contrast, NFI presented significant, affirmative
evidence indicating that Pro Emu failed to take any steps,
beyond notification, to assist NFI in filling the March 2012
order. Doc. 263 at 92-95, 97- 100. Even assuming that NFI had
the burden on this issue, the evidence at trial was
sufficient for the jury to find that NFI established by a
preponderance of the evidence that Pro Emu did not use its
best efforts to supply the March 2012 order. Therefore, any
error purportedly flowing from the instructions was harmless
and had no impact on Pro Emu's substantive rights.
See Delta Health Grp. Inc. v. Royal Surplus Lines Ins.
Co., 327 Fed.Appx. 860, 866 (11th Cir. 2009) (finding
that erroneous instruction on burden of proof was harmless
error based on the evidence presented at trial).