         09-4912-cv
         Pouncy v. Danka Office Imaging Company


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21 st day of September, two thousand and
 5       ten.
 6
 7       PRESENT: Roger J. Miner,
 8                Pierre N. Leval,
 9                Richard C. Wesley,
10                     Circuit Judges.
11
12
13
14       Larry Pouncy,
15
16                       Plaintiff-Appellant,
17
18
19                       v.                                                     09-4912-cv
20
21
22       Danka Office Imaging Co.,
23
                         Defendant-Appellee.
FOR APPELLANT:          LARRY POUNCY, pro se, Jamaica, NY.

FOR APPELLEE:           JEFFREY D. MOKOTOFF, (Elana Gilaad,
                        on the brief), Ford & Harrison LLP,
                        New York, NY.

    Appeal from a judgment of the United States District

Court for the Southern District of New York (Patterson, J.)

    UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment and order of the district

court be AFFIRMED.

    Plaintiff-appellant Larry Pouncy (“Pouncy”), pro se,

appeals from a judgment entered August 7, 2009 in the United

States District Court for the Southern District of New York

(Patterson, J.), following a jury trial, in favor of

Defendant-appellee Danka Office Imaging, Co., as to Pouncy’s

employment discrimination claims alleged pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., 42 U.S.C. § 1981, and relevant state and local law.

Pouncy also appeals from the district court’s judgment

insofar as it denied his post-judgment motions under Fed. R.

Civ. P. 50(b) and 59(a). 1   On appeal, Pouncy advances


    1
      Although Pouncy also identifies the district court’s
denial of his Fed. R. Civ. P. 59(e) motion as an issue on
appeal, he advances no substantive argument in support of
this claim of error; accordingly, we do not consider this
issue. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7

                               2
numerous claims of error concerning the district court’s

management of the trial proceedings and argues further that

the court erred by denying his post-judgment motions because

the jury’s verdict was against the weight of the evidence.

We assume the parties’ familiarity with the underlying

facts, the procedural history of the case, and the issues on

appeal.

I.   Trial Errors

     To the extent Pouncy argues that the district court

made prejudicial statements at trial, we find no merit in

this claim.    The statements by the court that Pouncy

identifies in his brief represent instances where the court

posed questions to witnesses or made comments to the jury to

clarify legal and factual issues to minimize possible

confusion.    See United States v. Filani, 74 F.3d 378, 386

(2d Cir. 1996) (“[A] district court should ask those

questions necessary for such purposes as clarifying

ambiguities, correcting misstatements, or obtaining

information needed to make rulings.”).



(2d Cir. 2005) (insufficiently argued issues are considered
waived and will not be addressed on appeal). However, even
if we reviewed this issue, the denial of Pouncy’s Rule 59(e)
motion was appropriate for the same reasons that the
district court denied his other post-judgment motions.

                               3
    In addition, although Pouncy raises on appeal several

challenges to the jury instructions, because he did not

object to those instructions below, we review his challenges

for fundamental error: error that is “so serious and

flagrant that it goes to the very integrity of the trial.”

Jarvis v. Ford Motor Co., 283 F.3d 33, 62 (2d Cir. 2002)

(internal quotation omitted).       None of the instructions

Pouncy identifies satisfy this standard; indeed, the record

indicates that some of the specific instructions that Pouncy

challenges were in fact requested by his counsel at the

charge conference.   To the extent Pouncy alleges error as to

the district court’s answer to the jury’s question during

deliberations, the record confirms that this response was

given only after the court conferred with Pouncy’s counsel,

who agreed fully with the language and content of the

response.   Finally, insofar as Pouncy alleges an

inconsistency in the jury verdict, because he did not raise

this claim below before the jury was discharged, he is

barred from doing so on appeal.       See Kosmynka v. Polaris

Indus. Inc., 462 F.3d 74, 83 (2d Cir. 2006) (“It is well

established that a party waives its objection to any

inconsistency in a jury verdict if it fails to object to the


                                4
verdict prior to the excusing of the jury.”); accord United

States Football League v. National Football League, 842 F.2d

1335, 1366-67 (2d Cir. 1988).

II.   Post-Judgment Motions

      “We review a district court’s ruling on a Rule 50

motion de novo, and apply the same standard used by the

district court below.”   Cobb v. Pozzi, 363 F.3d 89, 101 (2d

Cir. 2004).   Thus, “[p]rovided the proper pre-verdict motion

has been made and renewed, Rule 50(a) permits a district

court to enter judgment as a matter of law against a party

on an issue where there is no legally sufficient evidentiary

basis for a reasonable jury to find for that party on that

issue.”   Id. (internal quotations and citations omitted).

However, we acknowledge that where, as here, it was the

moving party who bore the burden of proof as to the issue,

judgment as a matter of law is “rare,” Broadnax v. City of

New Haven, 415 F.3d 265, 270 (2d Cir. 2005), and “[a]

verdict should be directed in such instances only if the

evidence in favor of the movant is so overwhelming that the

jury could rationally reach no other result,” Granite

Computer Leasing Corp. v. Travelers Indem. Co., 894 F.2d

547, 551 (2d Cir. 1990); accord Yurman Design, Inc. v. PAJ,


                                5
Inc., 262 F.3d 101, 109 (2d Cir. 2001).

    Assuming that Pouncy’s counsel properly filed a Fed. R.

Civ. P. 50(a) motion prior to the submission of the case to

the jury, the denial of his post-judgment Rule 50(b) motion

was correct.   Pouncy’s motion consisted largely of a

challenge to the jury’s determination concerning the proper

weight afforded to the trial evidence, which is not a proper

basis for a Rule 50(b) motion.    See Zellner v. Summerlin,

494 F.3d 344, 370 (2d Cir. 2007) (“In considering a motion

for judgment as a matter of law, the district court must

draw all reasonable inferences in favor of the nonmoving

party, and it may not make credibility determinations or

weigh the evidence.” (emphasis in original)); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)

(“Credibility determinations, the weighing of the evidence,

and the drawing of legitimate inferences from the facts are

jury functions, not those of a judge.”).    Nevertheless,

after an independent review of the record, we conclude that

there was a sufficient evidentiary basis for the jury’s

verdict, and thus affirm the district court’s denial of

Pouncy’s Rule 50(b) motion on that basis.    See ACEquip Ltd.

v. Am. Eng’g Corp., 315 F.3d 151, 155 (2d Cir. 2003) (“Our


                              6
court may, of course, affirm the district court’s judgment

on any ground appearing in the record, even if the ground is

different from the one relied on by the district court.”).

    As to Pouncy’s Fed. R. Civ. P. 59(a) motion, we review

a district court’s denial of a Rule 59(a) motion for a new

trial for abuse of discretion.    See Munafo v. Metropolitan

Transp. Authority, 381 F.3d 99, 105 (2d Cir. 2004).     “A

motion for a new trial ordinarily should not be granted

unless the trial court is convinced that the jury has

reached a seriously erroneous result or that the verdict is

a miscarriage of justice.”   Atkins v. New York City, 143

F.3d 100, 102 (2d Cir. 1998) (internal quotation marks

omitted).   Pouncy’s arguments in support of his Rule 59(a)

motion were identical to those in support of his Rule 50(b)

motion, and, following a comprehensive review of the record,

we conclude that the district court’s denial of the former

was not an abuse of discretion;    nothing in the record

suggests that the jury’s verdict was “seriously erroneous.”

    We have considered all of Pouncy’s remaining claims of

error and determined that they are without merit.

Accordingly, for the foregoing reasons, the judgment and

order of the district court are hereby AFFIRMED.


                              7
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk




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