         09-3832-cv
         Sartin v. GT Payroll Systems


                                   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 15 th day of December, two thousand                                    and ten.
 5
 6       PRESENT: WILFRED FEINBERG,
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12
13       WALTER SARTIN,
14
15                                       Plaintiff-Appellant,
16
17                       -v.-                                                   09-3832-cv
18
19       GT PAYROLL SYSTEMS, DIVERSITY SERVICES/DIVERSITY STAFFING,
20       STACEY STROTHER, INDIVIDUALLY,
21
22                                       Defendants-Appellees. *
23
24
25       FOR APPELLANT:                  AMBROSE WOTORSON, Law Office of Ambrose
26                                       Wotorson, Brooklyn, NY.
27
28       FOR APPELLEES:                  GAIL I. AUSTER, Law Offices of Gail I.
29                                       Auster & Associates, PC, Scarsdale, NY.
30

                 *
                 The Clerk of the Court is directed to amend the official caption in
         accordance with this order.
1         Appeal from the Southern District of New York
2    (Hellerstein, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the verdict, ruling and order of the

6    district court be AFFIRMED.

7        Appellant appeals from a jury verdict in favor of

8    defendants, the court’s denial of Appellant’s application to

9    amend his witness list on the eve of trial, and the court’s

10   post-verdict denial of his motion for a new trial.     We

11   assume the parties’ familiarity with the underlying facts,

12   the procedural history, and the issues presented for review.

13       One day before trial Appellant sought to amend his

14   witness list to include Donna Chatman (“Chatman”), his

15   alleged harasser.   The court denied this application.

16   Appellant argues that this refusal worked a manifest

17   injustice against him.   Appellant also objects to the

18   district court’s uncalled-witness charge that allowed the

19   jury to draw inferences for or against either party as a

20   result of Chatman’s failure to testify.

21       “A motion for relief from judgment is generally not

22   favored and is properly granted only upon a showing of

23   exceptional circumstances.”   United States v. Int’l Bhd. of

24   Teamsters, 247 F.3d 370, 391 (2d Cir. 2001) (citations

                                   2
1    omitted).   “Appellate review of a decision to grant or deny

2    relief . . . is restricted to determining whether the trial

3    court abused its discretion.”       Kotlicky v. U.S. Fid. & Guar.

4    Co., 817 F.2d 6, 8 (2d Cir. 1987) (citations omitted).

5        On the facts of this case the district court did not

6    abuse its discretion, either in denying Appellant’s request

7    to amend his witness list, or in denying Appellant’s

8    subsequent motion for a new trial.

9        “A jury instruction is erroneous if it misleads the

10   jury as to the correct legal standard or does not adequately

11   inform the jury on the law.”    United States v. Wilkerson,

12   361 F.3d 717, 732 (2d Cir. 2004) (quoting United States v.

13   Walsh, 194 F.3d 37, 52 (2d Cir. 1999)).       Here, the district

14   court neither misled nor misinformed the jury by instructing

15   that it was free to draw favorable or unfavorable inferences

16   for or against either party from Chatman’s absence from the

17   stand.   The jury instruction was not erroneous.

18       For the foregoing reasons, the verdict, ruling and

19   order of the district court are hereby AFFIRMED.

20
21                               FOR THE COURT:
22                               Catherine O’Hagan Wolfe, Clerk
23



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