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SAMPLE THIRD CIRCUIT BRIEF TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ………………… STATEMENT REGARDING ORAL ARGUMENT ………………. STATEMENT OF SUBJECT MATTER AND STATEMENT OF ISSUES PRESENTED FOR REVIEW …………… STATEMENT OF THE CASE ……………………………… STATEMENT OF RELATED CASES & PROCEEDINGS ……………. STANDARD OF REVIEW ………………………………… SUMMARY OF THE ARGUMENT ………………. LEGAL ARGUMENT POINT I POINT II CONCLUSION ……………………………………………………… 23 CERTIFICATE OF BAR MEMBERSHIP ……………………………………. TABLE OF AUTHORITIES Cases: Bianchi v. City of Philadelphia, Brisbin v. Superior Valve Co., Cooper Distributing Co., Inc. v. Amana Cota v. Eyman, Dewyer v. Temple University, Dunn vs. United States, In re Paoli R.R. Yard PCB Litigation, Katsaros. vs. Cody, Luna v. Apfel, Matter of Texas General Petroleum Corp., Pabst v. Oklahoma Gas & Elec. Co., Palmgreen vs. Palmer's Garage, Inc., Perichak v. International Union of Elec. Renegotiation Board vs. Bannercraft Clothing Co., Reynolds v. Ellingsworth, Salve Regina College vs. Russell, Schreiber v. Kellogg, Somerset Cmty. Hosp. vs. Mitchell U.S. vs. First City National Bank, U.S. v. Raddatz, U.S. for Use and Benefit of Treat Bros. U.S. v. Universal Rehabilitation
28 U.S.C. Sec. 1332 ……………………………………………………..
CORPORATE DISCLOSURE STATEMENT The plaintiff/appellant is XXXXXXXXXXXXXX Company, which is a corporation domiciled in and formed under the laws of the Commonwealth of Pennsylvania. There is no parent or sub-companies. STATEMENT REGARDING ORAL ARGUMENT Appellant respectfully requests oral argument as to all issues. STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION The court below had diversity jurisdiction pursuant to 28 U.S.C. Sec. 1332 over this action alleging, inter alia, breach of contract. The Third Circuit Court of Appeals has jurisdiction to entertain this appeal pursuant to 28 U.S.C. Sec. 1332. Schreiber v. Kellogg, 50 F.3d 264, 266 (3rd Cir. 1995). STATEMENT OF ISSUES PRESENTED FOR REVIEW The issue presented on this appeal is as follows: Did
the trial court err by denying appellant's post-judgment motion for pre-judgment
interest based upon the fact that the jury sheet did not request the jury
to separately state what amount it awarded appellant in damages for breach
of contract vis-a-vis the amount awarded in pre-judgment interest, whereas
appellant objected at the time that jury instructions and jury verdict
sheet were being provided to the jury and in resolution of the objection
the court agreed it would resolve the issue of pre-judgment interest by
way of post-judgment motions? STATEMENT OF THE CASE This appeal relates only to pre-judgment interest in
a case grounded in, inter alia, breach of contract. As such, the facts
generated during the two-week trial are omitted in great part. The court provided the jury an instruction that appellant
is entitled to pre-judgment interest on the amount of damages it awards,
if any, on the breach of contract claim if the jury finds that the contract
provides that appellant is entitled to interest. [Tr. Pg. 35, Line 21
to Pg. 36, Line 7] Later on, the court explained the jury verdict sheet
to the jury. [Tr. Pg. 47, Line 13 through Pg. 49, Line 14] The court explained
that there is a slot on the verdict sheet for the jury to indicate the
amount of damages it was awarding. [Tr. Pg. 48, Lines 13-16] The court
entertained appellant's objections when it was done with the instructions
pertaining to the verdict sheet. [Tr. Pg. 49, Lines 13-15] Appellant's objection to the verdict sheet and the related jury instructions included that the verdict sheet did not break down how much money the jury was awarding for each claim, and how much money it was awarding in pre-judgment interest. This entire appeal is based upon this interaction during this sidebar.
After the verdict, appellant made a motion to the court
for it to award appellant the interest. The court denied appellant's motion,
however, stating that it is assumed as a matter of law that interest was
already included in the 2.5 million dollar verdict. In other words, the
court held that the jury should have separately listed how much money
it awarded in for each claim, how much it awarded in interest and so on.
Appellant, as stated above, made a timely objection to the jury verdict sheet being submitted without a requirement for such separate entries. [Tr. Pg. 49, Line 13 to Pg. 52, Line 1] STATEMENT RELATED CASES AND PROCEEDINGS There has been no previous appeal in this case and no prior or related proceedings. STATEMENT OF STANDARD OF REVIEW
A. Standard as to Legal Conclusions. This appeal presents a review of the trial court's legal interpretation of appellant's entitlement to pre-judgment interest. The trial court's conclusions of law are to be reviewed de novo on appeal. Schreiber v. Kellogg, 50 F.3d 264, 266 (3rd Cir. 1995)("Our review of the district court's construction of Pennsylvania law is de novo"), citing Salve Regina College vs. Russell, 499 U.S. 225, 231 (1991) ("We conclude that a court of appeals should review de novo a district court's determination of state law").
U.S. v. Raddatz, B. Standard as to Jury Instructions.Appellant is entitled to plenary review of this matter because appellant lodged a timely objection to the trial court's misstatement of the law during jury instructions.
Dewyer v. Temple University, See also Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3rd Cir. 1999)("We exercise plenary review to determine whether jury instructions misstated the applicable law, but in the absence of a misstatement we review for abuse of discretion. If the party claiming error did not make a timely objection, we review for plain error").
Aside from the jury instructions, the trial court agreed
to entertain appellant's motion for post-judgment interest to alleviate
the need for curative jury instructions on the issue and the need to alter
the jury verdict sheet. The court's denial of that motion is to be reviewed
for abuse of discretion. Pabst v. Oklahoma Gas & Elec. Co., 228 F.3d
1128, 1136 (10th Cir. 2000) (issues related to pre-judgment interest are
to be reviewed for abuse of discretion); Matter of Texas General Petroleum
Corp., 52 F.3d 1330, 1339 (5th Cir. 1995) (same); Katsaros. vs. Cody,
744 F.2d 270, 281 (2nd Cir. 1984) (same); U.S. for Use and Benefit of
Treat Bros. Co. v. Fidelity and Deposit Co. of Maryland, 986 F.2d 1110,
1121 (7th Cir. 1993) (same). The term "abuse of discretion" is defined in the Third Circuit as meaning "arbitrary and irrational". U.S. v. Universal Rehabilitation Services (PA), Inc., 205 F.3d 657, 669 (3rd Cir. 2000), quoting In re Paoli R.R. Yard PCB Litigation, 113 F.3d 444, 453 (3rd Cir. 1997). "'Abuse of discretion' is a phrase which sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Perichak v. International Union of Elec. Radio and Mach. Workers, Local 601, AFL-CIO, 715 F.2d 78, 86 (3rd Cir. 1983). SUMMARY OF THE ARGUMENT Appellant's legal argument is that the trial court erred
first by failing to sustain appellant's objection to the jury verdict
sheet because it did not require the jury to separately state the amount
of interest that it was awarding appellant, and second by denying appellant's
post-judgment motion for such interest for the reason that the verdict
sheet did not have the separate requirements as set forth above.
LEGAL ARGUMENT POINT I
PENNSYLVANIA STATE LAW APPLIES TO THIS DIVERSITY ACTION TO DETERMINE WHETHER APPELLANT IS ENTITLED TO PRE-JUDGMENT INTEREST "In an action such as this one in which federal
subject matter jurisdiction is premised on the parties' diversity of citizenship,
the question of whether a party is entitled to prejudgment interest is
one of state law." PPG Industries, Inc. v. Zurawin, 52 Fed. Appx.
570, 581 (3rd Cir. 2002). "It is well established [in Pennsylvania law] that
in contract cases ... prejudgment interest is awardable as of right."
Brisbin v. Superior Valve Co., 398 F.3d 279, 294 (3rd Cir. 2005), quoting
Somerset Cmty. Hosp. vs. Mitchell & Assocs., Inc., 454 Pa. Super.
188, 685 A.2d 141, 148 (1996). "Prejudgment interest 'is a right which arises upon
breach or discontinuance of the contract provided the damages are then
ascertainable by computation and even though a bona fide dispute exists
as to the amount of the indebtedness.'" Brisbin, supra, at 294, quoting
Palmgreen vs. Palmer's Garage, Inc., 383 Pa. 105, 117 A.2d 721, 722-23
(1955) (citations omitted). The trial court agreed with this legal proposition.
(See opinion at page 5-6) The trial court in its opinion applied state law to determine the issue of pre-judgment interest. This court should do the same on appeal. POINT II
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT PRE-JUDGMENT INTERESTThe trial judge gave the jury an instruction that the jury is entitled to award appellant interest if it finds that there was a breach of contract and that the contract allows for such interest. [Tr. Pg. 35, Line 21 to Pg. 36, Line 7] Subsequently, the court agreed with consent of the parties to decide itself the issue of interest pursuant to post-judgment motions. [Tr. Pg. 50, Line 5 to Pg. 51, Line 22]
The court did not provide the jury a curative instruction advising the jury to disregard the prior instruction about awarding interest. Neither party objected to that failure. Nonetheless, it was still clear that the parties and the court intended that the court would decide the issue of interest itself via post-judgment motions. This implies that neither the parties nor the court were going to consider the jury award as including such interest.
The court denied appellant's post-judgment motion for pre-judgment interest premised upon a theory that it is assumed as a matter of law that the jury included interest in the judgment, and that it would be a double-recovery to also allow appellant to receive interest from the court pursuant to the motion. The court wrote that,
This is an inequitable outcome because the whole point
of the sidebar where the parties' stipulation transpired was with regard
to appellant's objections regarding the jury instructions and the proposed
verdict sheet. Appellant's counsel objected that the jury was not properly
advised of the law for awarding pre-judgment interest. The gist of that
objection was that the jury was advised that it could award interest if
the it finds that the contract allows for such an award, but the jury
was not advised that absent such a clause it could still award interest
pursuant to statutory right at the statutory rate. Appellant's counsel
also objected that there was no separate slot on the proposed verdict
sheet for the jury to indicate the amount of interest, if any, that it
was awarding. [Tr. Pg. 50, Line 5 to Pg. 51, Line 22] Appellant did everything
that was required of a prudent litigant, including making timely objections
when necessary. Defendant, by contrast, consented to the situation by
failing to demand a curative instruction. Defendant failed to object about
the proposed jury verdict sheet, the jury instructions, and defendant
explicitly consented to have the judge impose interest post-judgment.
Defendant provided no objections whatsoever. See Bianchi v. City of Philadelphia,
2002 WL 32364544 (E.D. Pa. 2002), aff'd, 80 Fed. Appx. 232, 237 (3rd Cir.
2003) ("The City neither formally objected to the jury charge on
front pay nor to the Jury Interrogatories on Front Pay. Having failed
to object at trial, it cannot do so on appeal"); Luna v. Apfel, 986
F. Supp. 275, 277 (D. N.J. 1997), citing Dunn vs. United States, 775 F.2d
99, 105 (3rd Cir. 1985) ("[A] consent order is not appealable, because
the parties negotiated and agreed to its terms and, thus, cannot be aggrieved
thereby"). It is a matter of law in the Third Circuit that when counsel fails to demand a curative instruction, it is assumed that he or she did it as a matter of strategy. It is assumed that defendant's counsel intentionally failed to object (perhaps so it could create a "double recovery" defense for use during the post-judgment motion at issue). Reynolds v. Ellingsworth, 23 F.3d 756, 760 (3rd Cir. 1994) ("Second, we assume that Reynolds' counsel made strategic decisions not to move for a mistrial or ask for a curative instruction").
The trial court has no obligation to notice that a curative instruction is needed and no obligation to have made one sua sponte. It is the parties' job to be attentive and to object when necessary. Cota v. Eyman, 453 F.2d 691, 694 (9th Cir. 1971) ("since the defendant did not ask for curative instructions, the court had no obligation sua sponte to give them").
This is not a situation of a confusing or ambiguous jury
instruction, or an instruction that misstates the law. Rather, this is
a situation of a stipulation, consent of the parties, an agreement by
the trial court and a failure by the defense to demand a curative instruction
when needed. Appellant was the only one who posted objections of any kind.
[Tr. Pg. 50, Line 5 to Pg. 51, Line 22] It is important for the court to bear in mind that appellant objected to the jury verdict sheet as it was drafted. Appellant requested that the sheet require the jury to separately list whether it was awarding pre-judgment interest and in what amount. This is exactly what was said in this regard:
That was not the case. Appellant's counsel never consented
to the jury verdict sheet as it was drafted. The court also took issue
in the quote in the previous paragraph that appellant requested interest
from the jury during closing arguments. That is entirely correct, but
it is irrelevant since it was not until after closing arguments that the
stipulation at issue was made. Surely appellant was not expected to make
a second closing argument or to make a curative instruction to the jury
on its own volition. The court made no mention in its Order and Opinion of the fact that defendant failed to request a curative instruction. This raises a legal question of whose legal obligation it was to demand a curative instruction. It is not appellant or the court's obligation to object on defendant's behalf or to continually analyze the case to ensure that defendant is not making a bad strategic decision. That was the sole responsibility of defendant's counsel.
In effect, the trial court created a catch-22 for appellant
where appellant was not permitted to have the jury state whether it included
interest in its judgment, but the court likewise refused to award appellant
the interest based upon the fact that it is assumed that the jury included
interest in its verdict. There is no evidence to support that conclusion. Finally, all of the caselaws cited by the court in its
Order and Opinion are inapplicable. They are all distinguishable on the
facts. In none of those caselaws was there a situation involving a consent
order or stipulation that the court accepted and agreed to abide by, and
in none of those cases was there an issue related to a failure of a party
to demand a curative instruction. Perhaps the general rule of thumb is that it is presumed
that the lump sum includes the interest if the verdict sheet does not
separately list the amount of interest being awarded, but the circumstances
are not so simple here. As set forth above, the law is that a party may
not appeal what he or she consented to, or otherwise failed to object
to during trial. If a party cannot appeal an issue, it should not be permitted
to argue about it after the fact to a trial court during a post judgment
motion. The damage was already done at that point and defendant consented
to it. CONCLUSION Appellant requests that the court's Order and Opinion in issue be vacated. Appellant also requests as a remedy that it be assumed that the jury verdict under the circumstances did NOT include interest and that the matter be remanded to the trial court for further consideration in light of this ruling. If appellant is required to undergo a second trial on damages, appellant requests attorney's fees and costs of suit for all services required in order to do that.
_______________________________________ Dated:
CERTIFICATE OF BAR MEMBERSHIP The undersigned hereby certifies pursuant to L.A.R. 46.1 that the attorney whose name appears on the Brief of Appellant was duly admitted to the Bar of the United States Court of Appeals for the Third Circuit on __________________________, ________, and is presently a member in good standing at the Bar of said court.
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