11-1528-cv
Liverpool v. Con-Way Freight

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX 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.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 3rd day of July, two thousand twelve,

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

MACHEL LIVERPOOL,

                                 Plaintiff-Appellee,

                           -v-                                              11-1528-cv

CON-WAY FREIGHT,

                                 Defendant-Appellant,

CON-WAY INC., CON-WAY CENTRAL EXPRESS,

                        Defendants.
_____________________________________________________

Appearing for Appellant:         Bradley M. Wilson, Nowell Amoroso Klein Bierman, P.A., New
                                 York, N.Y.

Appearing for Appellee:          Deborah H. Karpatkin, Law Office of Deborah H. Karpatkin, New
                                 York, N.Y.

                                 Frederick Kevin Brewington (on the brief), Law Offices of
                                 Frederick K. Brewington, Hempstead, N.Y.
     Appeal from a judgment of the United States District Court for the Eastern District of
New York (Gleeson, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Con-Way Freight appeals from a district court’s judgment, following a jury trial,
awarding Machel Liverpool $150,000 in damages for Liverpool’s claim of defamation. We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

         On appeal, Con-Way argues, among other things, that the district court improperly
instructed the jury regarding the circumstances under which Con-Way would be protected from
liability for disclosing information regarding Liverpool’s drug and alcohol testing history to
another company.

        Even if we assume, arguendo, that the jury instructions in this case were improper, Con-
Way failed to preserve any objection it might otherwise have had by failing to press its objection
before the district court. When asked by the district court whether a different instruction should
be given, Con-Way’s attorney replied, “No. That’s all right, Judge.” Thus, Con-Way failed to
preserve any objection to the instruction. See Fed. R. Civ. P. 51(c)(1); Fogarty v. Near N. Ins.
Brokerage, Inc., 162 F.3d 74, 80 (2d Cir. 1998) (“[W]hen the court explicitly asked him for
alternative language, counsel offered none.”).

        Furthermore, even if we assume, arguendo, that Con-Way forfeited, as opposed to
waived, its right to have the jury properly instructed, see generally United States v. Olano, 507
U.S. 725, 733-34 (1993), we see no reason to consider any such error in the instructions in this
case. See Fed. R. Civ. P. 51(d)(2) (“A court may consider a plain error in the instructions that
has not been preserved as required under Rule 51(d)(1) if the error affects substantial rights.”);
Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996) (“[W]e have warned that
the plain error exception should only be invoked with extreme caution in the civil context. Only
where an unpreserved error [is] so serious and flagrant that it goes to the very integrity of the
trial will a new civil trial be warranted.” (alteration in original) (internal quotation marks
omitted)).

        We note that if Liverpool had a viable argument that Con-Way did not properly move,
prior to the submission of the case to the jury, for judgment as a matter of law with respect to
damages, see Fed. R. Civ. P. 50(a)(2), Liverpool failed to preserve any such argument by not
raising it in his brief on appeal. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“In
the case before us . . . , the appellee has not properly preserved his right to object to the
appellant’s attempt to claim insufficiency of the evidence. . . . Issues not sufficiently argued in
the briefs are considered waived and normally will not be addressed on appeal.”). However, we
conclude that Con-Way failed to make a proper Rule 50(a) motion with regard to compensatory
damages.


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        The evidence was sufficient to support the jury’s damages award in this case. A jury
could reasonably conclude that, as a result of Con-Way’s defamation, Liverpool lost his
relatively high-paying job at Central Transport and was unable to find work thereafter, and
would, following the trial, continue to be unable to find similarly high-paying work for at least
some time. Moreover, the jury could reasonably conclude from the evidence presented at trial
that Liverpool had at least some opportunity to work overtime during his brief tenure at Central
Transport, and consequently might have had additional opportunities, had he remained with the
company, to earn even more working overtime.

       We have considered Con-Way’s remaining arguments and find them to be without merit.

       Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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