
USCA1 Opinion

	




          April 25, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1774                     G. ROCKETT & SONS, INC., AND BRIAN ROCKETT,                               Plaintiffs - Appellants,                                          v.                        WINTER HARBOR FISHERMAN'S COOP, INC.,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                _____________________               Peter Panaro on brief for appellants.               ____________               Michael L. Ross on brief for appellee.               _______________                                 ____________________                                 ____________________                    Per Curiam.  Plaintiffs-appellants,  G. Rockett & Sons,                    Per Curiam                    __________          Inc.,  and Brian  Rockett,  appeal a  jury  verdict in  favor  of          defendant-appellee,  Winter  Harbor  Fisherman's Coop,  Inc.,  on          plaintiffs' complaint and defendant's counter suit.  Judgment was          entered by the district court in the amount of $99,360.35 against          G.  Rockett &  Sons,  Inc., for  breach of  contract, and  in the          amount  of $15,000  against G.  Rockett &  Sons, Inc.,  and Brian          Rockett,  jointly  and  severally,   for  conversion  and  unjust          enrichment.  We affirm.                                      BACKGROUND                                      BACKGROUND                    Winter  Harbor Fisherman's Coop,  Inc. ("Winter")  is a          fisherman's cooperative,  located in Winter  Harbor, Maine, which          sells  live lobsters at market wholesale cost to wholesalers.  G.          Rockett  & Sons,  Inc.  ("Rockett &  Sons")  is a  wholesaler  of          lobsters which contracts with  suppliers of lobsters and delivers          them to its customers in the Northeast.  In  December  of   1992,          Brian Rockett  ("Rockett"), an  officer1 and employee  of Rockett          and Sons,  reached an  oral agreement  with Winter's  manager and          bookkeeper,  Becky Utecht-Towle  ("Utecht-Towle"), for  Rockett &          Sons  to purchase  26,000 pounds  of lobsters  from Winter.   The          lobsters were to  be sold in three shipments on  a cash and carry          basis.  The purchase price was $39,423.90 for the first shipment,          $34,502.50 for the second shipment, and $27,223.45  for the third          shipment, for a total of $101,860.35 (including a $711.50 balance                                        ____________________          1  Although Rockett signed an affidavit expressly stating that he          is an officer of Rockett & Sons, he nevertheless argued at trial,          and again  on appeal, that he  is not an officer  of the company.          He  has offered no reason,  however, why we  should disregard his          own sworn statement to the contrary.          due on a previous transaction).                      Rockett picked  up the  three shipments of  lobsters on          December  22nd, 27th  and  29th, respectively.    He paid  Winter          $14,600  in cash,  and paid  the remainder due  on the  first two          shipments  by two corporate  checks dated December  28, 1992, and          December 29,  1992. Rockett eventually stopped payment on the two          corporate  checks,  and has  never paid  for the  third shipment.          Instead, Rockett  & Sons  and Rockett filed  the instant  lawsuit          alleging that they received non-conforming goods in the first two          shipments.   Specifically,  Rockett  & Sons  alleged that  Winter          breached the contract because the  lobsters in the first shipment          were below weight specifications and because most of the lobsters          in the second shipment were freezing or frozen.    W i n t e r          thereafter filed  suit  against Rockett  and Rockett  & Sons  for          breach of  contract, unjust enrichment  and conversion.   The two          suits were consolidated and tried to a jury.                       On May 26, 1994, the jury returned a verdict for Winter          on its breach of  contract claims, finding that Rockett  and Sons          breached its agreement to  pay Winter for the three  shipments of          lobsters.  The  jury also returned  a verdict for  Winter on  its          conversion and unjust enrichment claims, finding that Rockett and          Rockett  & Sons  had converted  Winter's lobsters  and/or lobster          crates and been unjustly enriched by the same.  The court entered          judgment against Rockett  & Sons  on the contract  claims in  the          amount  of  $99,360.35,  and against  Rockett  &  Sons and  Brian          Rockett,  jointly and  severally,  on the  conversion and  unjust                                         -3-          enrichment  claims  in  the  amount  of  $15,000.    This  appeal          followed.                                       DISCUSSION                                      DISCUSSION                    Appellants  raise a  number of  issues on  appeal.   We          address them seriatim.          I.  Insufficiency of the Evidence          I.  Insufficiency of the Evidence              _____________________________                    Appellants  maintain that  the  evidence  presented  at          trial was legally insufficient for a reasonable jury to find that          Rockett & Sons breached the contract as to the first  shipment of          lobsters.  They also maintain that the evidence was  insufficient          for a reasonable  jury to find that  either Rockett or Rockett  &          Sons converted Winter's lobster crates and was therefore unjustly          enriched.                    To challenge the sufficiency of the evidence on appeal,          a party  is required, at the  close of the evidence,  to move for          judgment as a  matter of law  and, if that  motion is denied,  to          renew  the motion  after  the jury  verdict.   See  Vel zquez  v.                                                         ___  _________          Figueroa-G mez, 996  F.2d 425,  426-27 (1st  Cir. 1993);  Fed. R.          ______________          Civ. P.  50.  A  motion for judgment as  a matter of  law must be          made with sufficient particularity to explain why the evidence is          insufficient, and the moving party may appeal only on the grounds          stated in the motion.  Vel zquez, 996  F.2d at 427.  A motion for                                 _________          judgment as a matter of  law, after a jury verdict, must  be made          "not later than ten days after judgment."  Fed. R. Civ. P. 50(b).          Appellants moved for judgment as a matter of law at  the close of          the evidence.  They maintain that they also moved for judgment as                                         -4-          a matter of law after the jury rendered its verdict.   The record          does not support this contention.                    After  the  jury returned  its  verdict,  the following          colloquy took place between counsel for appellants and the court.                        MR. PANARO:   Yes your honor.   Just to                      make a motion.  I would make a motion for                      verdict  for  the  defendant, I'm  sorry,                      verdict for  Rockett, notwithstanding the                      verdict  in  the  amount of  --  what I'm                      trying  to do  is  make a  motion to  set                      aside  that portion of  the verdict which                      states $15,000 for  unjust enrichment  on                      the part  of G. Rockett &  Sons and Brian                      Rockett,  and  also  to  set  aside  that                      portion of the  verdict of $39,800  [sic]                      and some  odd as being against the weight                      of the evidence in the case.                        THE COURT:   After I  enter judgment in                      the  case, Mr. Panaro,  you obviously are                      free  to file  post judgment  motions and                      you should  do that in writing.   At this                      point I'm simply inviting counsel, to the                      extent  that  you  wish  to,  to  comment                      before I  indicate the amount that  is to                      be entered  in the judgment  in favor  of                      [Winter].                    Appellants never took  the court's  invitation to  file          post  judgment  motions, in  writing  or  otherwise.   The  above          discussion does not constitute  a proper Rule 50(b) motion.   The          district court judge clearly indicated to counsel that he was not          treating his  statements as a  post-trial motion.   In  addition,          defense counsel's statement is  insufficient by itself because it          does not state with sufficient particularity --  indeed, with any          particularity  --  why  the   evidence  was  insufficient.    The          attempted  motion did not provide a basis upon which the district          court  could rule, and,  consequently, we have  no district court                                         -5-          decision  to consider.  See  Wells Real Estate  v. Greater Lowell                                  ___  _________________     ______________          Bd. of Realtors, 850 F.2d 803, 810 (1st Cir. 1988).2          _______________                    Appellants did  not move for  a new trial  under either          Rule 50  or Rule  59 of  the  Federal Rules  of Civil  Procedure.          Having  failed  to move,  after the  verdict,  for judgment  as a          matter of law and/or  a new trial, appellants are  precluded from          appealing the sufficiency of the evidence to this court.  See id.                                                                    ___ __          at 810-11.   Accordingly,  we only address  appellants' arguments          concerning alleged errors by the trial court.          II.  The Conversion and Unjust Enrichment Verdicts          II.  The Conversion and Unjust Enrichment Verdicts               _____________________________________________                    The   jury  initially  found   Rockett  liable  on  the          conversion and unjust enrichment counts, but found that Rockett &          Sons was not  liable on  those counts.   The jury awarded  Winter          $15,000 but  apportioned that  award equally between  Rockett and                                                                        ___          Rockett  &  Sons.   The district  court  properly found  that the          verdict  and  the  apportionment of  damages  were  inconsistent.          Accordingly, the  court explained  the inconsistency to  the jury          and  asked  them  to  resolve  it  with  reference  to  the  jury          instructions.   The court then asked them to return to deliberate          further.   Counsel for appellants  did not object  to the court's          supplemental instructions.                    In  its subsequent  verdict, the  jury found  that both          Rockett and Rockett & Sons had converted Winter's lobsters and/or                                        ____________________          2   This is not a  case, therefore, where appellants  either were          misled by the trial judge or substantially complied with Rule 50.          Accordingly, they do not fit within the very  narrow "substantial          compliance"  exception.  See Jusino  v. Zayas, 875  F.2d 986, 991                                   ___ ______     _____          n.6 (1st Cir. 1989) (citations omitted).                                         -6-          lobster crates and  that both  had been unjustly  enriched.   The          jury found that Winter suffered damages of $15,000 as a result of          this conduct, but that no portion of that $15,000 was a result of          Rockett & Sons' conduct alone.  The court entered judgment in the          amount of $15,000 against Rockett and Rockett & Sons, jointly and          severally.                    Appellants maintain that the  jury's finding that  both          appellants  had converted  Winter's  property, but  that none  of          Winter's damages  were caused by  Rockett & Sons'  conduct alone,          "shows the  jury was confused regarding the  charge of conversion          and  is otherwise unreasonable,  inconsistent, against the weight          of the evidence and  contrary to the judge's instructions  on the          law."    As   explained  above,  by   not  moving  for   judgment          notwithstanding the verdict, appellants  have waived their  right          to  challenge the  sufficiency  of the  evidence.   We  therefore          address only the question of whether the verdict was inconsistent          or contrary to the judge's instructions.                    The verdict was  not inconsistent under Maine  law.  It          was stipulated  at trial that Rockett  was acting as an  agent of          Rockett & Sons.   Under Maine  law, the jury could  conclude that          Rockett  converted the  lobsters  and/or crates  and that  he was          acting  within the scope of  his employment with  Rockett & Sons.          See McLain v. Training  & Dev. Corp.,  572 A.2d 494, 497-98  (Me.          ___ ______    ______________________          1990).  The jury  could determine that the damages were caused by          Rockett's  conduct alone,  but  he was  acting  as an  agent  for          Rockett  & Sons at the  time.  The  jury could therefore conclude                                         -7-          that Rockett and Rockett & Sons were jointly and severally liable          for the $15,000 in  damages, even though the damages were not the          result of Rockett & Sons' conduct alone.                                                _____                    Nor  was   the   verdict  contrary   to   the   judge's          instructions.   With  respect to  the claim  for conversion,  the          court instructed the jury as follows:                         The Co-op also  claims that Rockett  &                      Sons  and  Brian  Rockett  converted  its                      property,  namely,  its lobsters  and 100                      wooden  crates.  To prove conversion, the                      Co-op must establish  that Rockett & Sons                      have   wrongfully   taken   or   retained                      property belonging to the Co-op.                         The Co-op need not prove  that Rockett                      & Sons and Brian Rockett knew or intended                      to  convert  the  Co-op's property,  only                      that   they  came  to   have  custody  of                      property belonging to the Co-op when they                      had no right to the property.                         Of course, if you find that  Rockett &                      Sons  was entitled  to possession  of the                      lobsters under the contract, then neither                      it   nor  Brian  Rockett  is  liable  for                      conversion of the lobsters.  If, however,                      you determine that Rockett & Sons was not                      entitled  to  possession of  the lobsters                      under  the contract due  to its  fraud in                                          __________________                      procuring delivery of the  lobsters, then                      you  may find  that  Rockett &  Sons  and                      Brian Rockett are  liable for  conversion                      of the lobsters.                    Appellants argue  that this  instruction only allows  a          finding of conversion if the jury finds fraud in the procuring of          the  lobsters, and  that,  since the  jury  found no  fraud,  the          verdict  was inconsistent.    The court  instructed  the jury  to          consider  all of the instructions together, and not to single out          any one  instruction.  The conversion  instruction explained that                                         -8-          Winter need not prove  that Rockett &  Sons and Rockett "knew  or          intended to  convert" Winter's property,  only that they  came to          have  possession of that  property when they had  no right to it.          The  mention of fraud merely indicates that, in addition, if they          had  possession of  Winter's property  through fraud,  that would          suffice for conversion.  We find no inconsistency in the verdict.          III.  Violation of Sequestration Order          III.  Violation of Sequestration Order                ________________________________                    Appellants  assert that  the  district court  committed          reversible error by allowing a witness for the appellee,  Michael          Faulkingham  ("Faulkingham"),  to  testify  after  he  admittedly          violated  the court's  sequestration order.   The  district court          thoroughly  explored  this issue  at  trial.   The  court allowed          counsel  for appellants to  voir dire  Faulkingham on  the record          about what he heard while in violation of the court's order.  The          court also conducted a voir dire of Faulkingham.  Faulkingham          testified on voir dire that he was in the courtroom for about ten          minutes during  the  direct and  cross-examinations  of  appellee          witness,  Michael  Kramp ("Kramp"),  and  then left  when  he was          informed  that he  was  not  allowed  to  be  in  the  courtroom.          Faulkingham told  the court what  he heard  Kramp testify  about.          Counsel for Winter then told the court the questions he would ask          Faulkingham.                      The court determined that  there was no overlap in  the          two  areas of  questioning  and allowed  Faulkingham to  testify.          Counsel for Winter asked Faulkingham thirteen questions on direct                                         -9-          examination,  seven  of which  were  foundational.   None  of the          questions  related to  anything  Faulkingham  testified he  heard          Kramp  testify about.  The  appropriate sanction for  breach of a          sequestration order  is ordinarily  left to the  district court's          discretion.   See United States  v. Cox,  752 F.2d 741,  748 (1st                        ___ _____________     ___          Cir.  1985).  Appellants have not shown that the measures adopted          by the district court  were inappropriate or that  the violations          were  so significant as  to warrant departure  from this ordinary          rule.    Finally,  appellants  have   not  shown  how  they  were          prejudiced by Faulkingham being allowed to testify.  We  conclude          that  the district court did not abuse its discretion in allowing          Faulkingham to testify.          IV.  Prejudicial Remarks          IV.  Prejudicial Remarks               ___________________                    Appellants  allege  that  certain  statements  made  by          counsel  for  appellee  during  closing  argument  were  unfairly          prejudicial and deprived appellants of a  fair trial.  Appellants          point to  the following  statements by counsel  for appellee:  1)          counsel  described Rockett as a  "con artist", and  the breach of          contract as a "con"; 2) counsel referred to Winter as the "little          fishermen's  Co-op  in Maine"  and  stated  that "we  don't  need          anymore  of this  here  in Maine";  3)  and counsel  stated  that          Rockett  "makes more money in one deal  than the Co-op makes in a          couple of years."  Appellants  did  not  object  during  or after          appellee's closing argument, therefore,  we review only for plain          error.  United  States v.  Rodr guez-Estrada, 877  F.2d 153,  158                  ______________     _________________          (1st  Cir. 1989); Wildman v.  Lerner Stores Corp.,  771 F.2d 605,                            _______     ___________________                                         -10-          609  (1st Cir.  1985) ("Counsel  cannot play  a waiting  game and          after  an  adverse verdict  is  rendered  raise an  objection  to          argument for the first time.") (citations omitted).  We  find  no          plain  error in counsel's remarks.  The description of Rockett as          a "con  artist"  is not  unduly prejudicial  since the  complaint          charged  him with  fraud.   Moreover,  the  jury determined  that          Rockett did  not defraud  Winter, and, thus,  presumably rejected          counsel's characterization of  Rockett as a "con artist"  and the          breach as a "con."  None  of the other statements by counsel were          such that  a new  trial is required  to prevent a  miscarriage of          justice.  See Fed. R. Civ. P. 61; Wildman, 771 F.2d at 609.                                                                                           ___                     _______          V.  Evidentiary Issues          V.  Evidentiary Issues              __________________                    Appellants  list  twenty-one  instances  in  which  the          district   court   allegedly   admitted   evidence   erroneously.          Appellants  assert  that  these errors,  taken  together,  denied          appellants a fair  trial and warrant  a new trial.   We need  not          linger  long over this argument.  "[T]he admission and  exclusion          of  evidence is  primarily  within the  discretion  of the  trial          judge, and  this determination  will  not be  disturbed absent  a          showing of abuse of  discretion."  Doty v. Sewall, 908 F.2d 1053,                                             ____    ______          1058 (1st Cir. 1990)  (quoting  Harrington v. United  States, 504                                          __________    ______________          F.2d  1306,  1313   (1st  Cir.  1974)).  We  have  reviewed  each          assignment of error  and find  no abuse of  the district  court's          broad discretion,  certainly none  which rises  to  the level  of          affecting appellants' substantial  rights.  See  Farr Man &  Co.,                                                      ___  ________________          Inc. v.  M/V Rozita, 903 F.2d  871, 875 (1st Cir.  1990); Fed. R.          ____     __________                                         -11-          Civ. P. 61.                                        CONCLUSION                                      CONCLUSION                    We  have considered  appellants'  other contentions  of          error and find none meriting further discussion.  The verdict and          judgment are affirmed.                       ________                                         -12-
