                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2005

Dimensional Comm Inc v. OZ Optics Ltd
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1817




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 04-1817

                     DIMENSIONAL COMMUNICATIONS, INC.

                                            v.

                                  OZ OPTICS, LTD.,
                                             Appellant


                    On Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. Civil No. 01-cv-4893)
                     District Judge: Honorable William G. Bassler

                                    _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 10, 2005


                    Before: SLOVITER and FISHER, Circuit Judges.
                             and POLLAK,* District Judge.

                                    ______________

                              OPINION OF THE COURT
                                  _______________




      *
       Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge.

       This diversity case arises out of a contract dispute between Dimensional

Communications, Inc., (“DCI”), and Oz Optics, Ltd. (“Oz”).1 Oz, a manufacturer of

optical fiber communications equipment, had a jury verdict entered against it on a breach

of contract claim brought by DCI, a corporation that designs, manufactures, and installs

trade-show booths. Oz appeals from the District Court’s orders (1) denying Oz’s motion

for leave to file a counterclaim, and (2) denying Oz’s post-trial motion for judgment as a

matter of law or, in the alternative, for a new trial. The District Court exercised

jurisdiction over this suit under 28 U.S.C. § 1332(a)(2),2 and this court has appellate

jurisdiction under 28 U.S.C. § 1291. For the reasons which follow, we will affirm.




I.

       Inasmuch as we write chiefly for the parties it is not necessary to recite the facts of

this case in detail. Oz and DCI had entered into a contract according to which DCI was to

design and construct a trade-show booth for Oz. After the booth was completed, DCI

coordinated the transportation of the booth to four trade-shows, and performed

maintenance and set-up activities at each show. DCI billed Oz separately for the



       1
        Oz has been alternately referred to as “Oz” or “OZ” in the parties’ submissions
and in the District Court docket. For the sake of uniformity, we will use only “Oz” here.
       2
       Oz is a Canadian corporation with its principal place of business in Ontario; DCI
is a New Jersey corporation with its principal place of business in Northvale, New Jersey.

                                              2
maintenance and set-up costs, and Oz refused to pay for any of these ancillary charges on

the ground that it had not authorized them. While Oz had most of the electronic

equipment used in its booth shipped back to its New Jersey facility, DCI retained the

booth itself and some of the electronic equipment pending Oz’s payment of the

outstanding invoices. On October 22, 2001, DCI filed its complaint in the United States

District Court for the District of New Jersey, asserting claims for breach of contract, book

account, and quantum meruit. Oz’s answer asserted the affirmative defense of set-

off/recoupment, but it contained no counterclaims.

       On November 12, 2002, Magistrate Judge Madeline Cox Arleo entered a Pretrial

Scheduling Order that, inter alia, set December 31, 2002, as the deadline for filing

motions to amend the pleadings. On May 16, 2003, Oz filed a motion to amend its answer

to assert a counterclaim for conversion for the seizure of the trade-show booth and other

property. After briefing and argument, Magistrate Judge Arleo denied Oz’s motion,

finding, pursuant to Fed. R. Civ. Proc. 16(b), that Oz had not shown good cause for its

failure to comply with the Pretrial Scheduling Order. Magistrate Judge Arleo further

found that Oz’s actions constituted undue delay and evidenced dilatory motive, such that

Oz could not meet the liberal amendment provisions of Fed. R. Civ. Proc. 15(a). Oz

appealed Magistrate Judge Arleo’s denial of its motion to amend, and the District Court

affirmed the denial. This affirmance is the first subject of this appeal.

       The case was tried before a jury in December, 2003. The jury rendered a verdict in



                                              3
favor of DCI in the amount of $492,766.01. The jury also found that Oz was not entitled

to any recoupment or setoff. On January 13, 2004, Oz filed a motion for judgment as a

matter of law or, in the alternative, a new trial. The District Court denied that motion,

finding that Oz was entitled neither to judgment as a matter of law nor to a new trial. The

District Court’s denial of this post-trial motion gives rise to Oz’s second and third

grounds of appeal.




II.

         We review a district court’s denial of leave to amend a pleading for abuse of

discretion. See Arab African Int'l Bank v. Epstein, 10 F.3d 168, 174 (3d Cir. 1993). “An

abuse of discretion occurs when the District Court's decision rests upon a clearly

erroneous finding of fact, an errant conclusion of law or an improper application of law to

fact.” Montgomery County v. Microvote Corp., 320 F.3d 440, 445 (3d Cir. 2003) (citation

and quotation marks omitted).

         We exercise plenary review over a district court's denial of a Rule 50(b) motion for

judgment as a matter of law. See, e.g., Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 200 (3d

Cir. 1996).

         We review a district court's denial of a new trial motion for abuse of discretion.

Honeywell, Inc. v. American Standards Testing Bureau, Inc., 851 F.2d 652, 655 (3d Cir.

1988).



                                               4
III.

A. Motion to Amend

       Where, as here, a party seeks to amend a pleading after a responsive pleading has

been served, it may do so “only by leave of court or by written consent of the adverse

party; and leave shall be freely given when justice so requires.” Fed. R. Civ. Proc. 15(a).

“Among the grounds that could justify a denial of leave to amend are undue delay, bad

faith, dilatory motive, prejudice, and futility.” In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410, 1434 (3d Cir. 1997). In addition, a court’s “schedule shall not be modified

except upon a showing of good cause and by leave of the district judge or, when

authorized by local rule, by a magistrate judge.” Fed. R. Civ. Proc. 16(b).

       Magistrate Judge Arleo found that Oz could not satisfy Rule 16(b)’s good cause

requirement because Oz was in possession of the facts underlying its proposed

counterclaim well before the amendment deadline. The Magistrate Judge found further

that Rule 15(a)’s liberal amendment provision did not extend to Oz because Oz’s delay

was undue and prejudicial, and because it evidenced a dilatory motive. The District Court

agreed with the Magistrate Judge’s findings, and concluded that the Magistrate Judge’s

denial of Oz’s motion to amend did not constitute clear error.

       Oz now argues that the Third Circuit has not adopted a “good cause” requirement

in determining the propriety of a motion to amend a pleading after the deadline has

elapsed, and that the District Court thus abused its discretion in denying the motion to



                                              5
amend. We disagree. In Eastern Minerals & Chems. Co. v. Mahan, 225 F.3d 330, 340 (3d

Cir. 2000) – a case with a similar procedural history – this court approved the district

court’s determination that a failure to satisfy Rule 16(b)’s “good cause” requirement was

sufficient to deny a motion to amend filed six months after the deadline for amendments

to pleadings. Further, we find no error in the Magistrate Judge’s finding, which the

District Court approved, that Oz could not satisfy even the liberal amendment provisions

of Rule 15(a) because Oz’s delay was undue and its requested amendment would be

prejudicial to DCI. In short, there is no ground for disturbing the District Court’s order.




B. Motion for Judgment As a Matter of Law

       A denial of a post-trial motion for judgment as a matter of law shall be affirmed

where “there is sufficient evidence to support the verdict, drawing all reasonable

inferences in favor of the verdict winner.” Blum v. Witco Chemical Corp., 829 F.2d 367,

372 (3d Cir. 1987).

       Oz contests two elements of the verdict on the ground that there was, Oz contends,

no rational basis for them. First, Oz asserts that the jury erred in finding that Oz had

authorized ancillary charges, which included markups for subcontractor work, and

freight, handling, refurbishing and storage charges.3 Yet the jury could reasonably have


       3
         As a subsidiary element of its claim that the jury erred in finding that Oz had approved
the ancillary charges, Oz argues that the jury erred further in adopting DCI’s calculation of the
handling charges inasmuch as DCI, so Oz contends, relied upon a “myster[ious],” “undisclosed
mathematical equation” to arrive at this calculation. As the District Court found, however, DCI

                                                 6
inferred that Oz had authorized the ancillary charges. For example, the jury heard

testimony that a sub-contractor of DCI had overheard Oz’s president approve the

markups; that a DCI employee had explained to Oz’s president that there would be

handling charges; and that Oz’s president had been quoted a per-show estimate of

refurbishment costs. Further, as the District Court found, there was evidence of an oral

agreement for storage charges. This testimony formed a legitimate basis for the jury’s

finding that Oz had authorized the charges. Thus, Oz’s first claim of error is baseless.

       Second, Oz contends that the jury erred in failing to reduce its verdict by the

monies that Oz lost as a result of DCI’s seizure of Oz’s booth and some of the electronic

equipment used in that booth. Yet having found that Oz had authorized the ancillary

charges and hence was unjustified in refusing to pay for them, and having heard

testimony from DCI stating that it would have returned the retained property upon receipt

of payment from Oz, the jury could have reasonably concluded that Oz was not entitled to

a set-off. Accordingly, Oz’s claim that the jury erred in rejecting its recoupment/set-off

defense is also baseless.

       In sum, because sufficient evidence supported the jury’s verdict, the District Court

did not err in denying Oz’s motion for judgment as a matter of law.




presented testimony describing how it arrived at the handling charges. The jury thus had a
reasonable basis upon which to conclude that Oz did in fact owe DCI money in the asserted
amount.

                                               7
C. Motion for a New Trial

       Oz argues that three grounds supported its motion for a new trial. First, Oz

contends that, even though neither party requested a jury instruction on whether DCI was

entitled to use self-help, the District Court should have issued sua sponte an instruction

disapproving the use of self-help. Second, the District Court should have provided a jury

verdict sheet that itemized the charges Oz would be found to have owed DCI since,

without such itemization and in light of the jury’s verdict that Oz owed less than DCI

claimed it did, the parties cannot determine which charges the jury in fact found that Oz

was obligated to pay. Finally, Oz charges that the District Court should have found, as a

matter of law, that DCI breached the contract with Oz, and instructed the jury

accordingly.

       Oz’s charge that the District Court erred in failing to instruct on the permissibility

of the use of self-help is unavailing. “[A]n appellate court will not consider trial errors

[involving alleged deficiencies in jury instructions] to which no objection was made.”

Hoffman v. Sterling Drug, Inc., 485 F.2d 132, 138 (3d Cir. 1973). Before the District

Court, Oz neither requested a jury instruction on the permissibility of self-help nor

objected to the omission of such an instruction. We will not entertain Oz’s objection to

the jury instructions now.

       Oz’s claim that the judge ought to have furnished the jury with an itemized jury

verdict form is no more meritorious. “It is well established that the trial court may



                                              8
exercise broad discretion in determining whether to use a general verdict or the

procedures described in Rule 49 of the Federal Rules of Civil Procedure.” Kazan v.

Wolinski, 721 F.2d 911, 915 (3d Cir. 1983). Further, there is no evidence in the record

that Oz objected below to the jury verdict form, and its failure to do so before the District

Court bars it from raising that objection before this court. Accordingly, we decline to find

that the District Court erred in constructing the jury verdict form as it did.

       For similar reasons, we find no merit in Oz’s claim that the District Court should

have found, as a matter of law, that DCI breached the contract with Oz, and instructed the

jury accordingly. The District Court judge properly determined that the parties had

adduced evidence sufficient to create an issue of fact on this matter. Further, Oz did not at

trial raise any objections to the judge’s asserted failure to instruct the jury on the alleged

breach of contract, and so we will not consider these objections now.

       In sum, we find that the District Court did not abuse its discretion in denying Oz’s

motion for a new trial.




IV.

       For the foregoing reasons, we do not find merit in any of Oz’s claims of error.

Accordingly, the challenged orders of the District Court will be affirmed.




                                               9
