                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-1790



JAMES K. ABCOUWER,

                                             Plaintiff - Appellee,

          versus

NISOURCE, INCORPORATED, a foreign corporation,

                                            Defendant - Appellant,

          and

NISOURCE CORPORATE SERVICES COMPANY, a foreign
corporation; GARY L. NEALE, in his capacity as
Chairman,   President   and   Chief   Executive
Officer   of   NiSource,    Incorporated,   and
unknown;   JOHN   DOES,   representatives    of
NiSource Incorporated, in their official
capacities,

                                                       Defendants.


                            No. 04-1855



JAMES K. ABCOUWER,

                                            Plaintiff - Appellant,

          versus

NISOURCE, INCORPORATED, a foreign corporation,

                                             Defendant - Appellee,

          and
NISOURCE CORPORATE SERVICES COMPANY, a foreign
corporation; GARY L. NEALE, in his capacity as
Chairman,   President   and   Chief   Executive
Officer   of   NiSource,    Incorporated,   and
unknown;   JOHN   DOES,   representatives    of
NiSource Incorporated, in their official
capacities,

                                                        Defendants.


Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CA-01-1305-2)


Argued:   February 2, 2005                 Decided:   March 9, 2005


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Earle Duncan Getchell, Jr., MCGUIREWOODS, L.L.P., Richmond,
Virginia, for NiSource, Incorporated.      Robert Bernette Allen,
ALLEN, GUTHRIE, MCHUGH & THOMAS, P.L.L.C., Charleston, West
Virginia, for James K. Abcouwer. ON BRIEF: William H. Baxter, II,
Amy M. Pocklington, MCGUIREWOODS, L.L.P., Richmond, Virginia;
Timothy M. Miller, William E. Robinson, ROBINSON & MCELWEE,
P.L.L.C., Charleston, West Virginia, for NiSource, Incorporated.
Pamela C. Deem, Teresa K. Thompson, ALLEN, GUTHRIE, MCHUGH &
THOMAS, P.L.L.C., Charleston, West Virginia, for James K. Abcouwer.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                 2
PER CURIAM:

        James K. Abcouwer sued his former employer, NiSource, Inc.,

seeking        termination    benefits      under    his    employment     contract.

Following a jury verdict in favor of Abcouwer, NiSource filed a

motion for judgment as a matter of law or, in the alternative, a

new trial.        The district court denied the motion.            We affirm.

        NiSource argues that no reasonable jury could find that

Abcouwer was entitled to termination benefits under the contract.

Shortly       before    Abcouwer’s     termination,        NiSource,   a   utilities

company,        was    involved   in   a    series    of    complex    mergers   and

acquisitions          involving   several       holding    companies   and   another

utilities company.          Under his contract, Abcouwer was not entitled

to termination benefits if he was a “participant in a group

effecting” the acquisition of NiSource.                    NiSource contends that

Abcouwer cannot recover termination benefits because Abcouwer was

a “participant in a group effecting” the acquisition as a matter of

law.*

            We review de novo the district court's denial of NiSource's

Rule 50(b) motion for judgment as a matter of law, viewing the

evidence in the light most favorable to Abcouwer, the nonmoving

party.        See Babcock v. BellSouth Adver. & Publ’g Corp., 348 F.3d



        *
      Because we conclude that a reasonable jury could have found
that Abcouwer was not a “participant in a group effecting” the
acquisition, we need not determine the separate issue of whether
NiSource was actually acquired.

                                            3
73, 76 (4th Cir. 2003).      Judgment as a matter of law is appropriate

after trial only when "there is no legally sufficient evidentiary

basis for a reasonable jury to find for that party on that issue."

Fed. R. Civ. P. 50(a)(1).

      We conclude that there was a legally sufficient basis for the

jury to find that Abcouwer was not a “participant in a group

effecting” the acquisition of NiSource.            The district court found

this phrase to be unambiguous, and neither party has appealed that

determination.    The district court instructed the jury to give the

words “participant,” “group,” and “effecting” their plain and

ordinary meanings.      It was proper for the court to allow the jury

to   determine   whether    Abcouwer   was   a    “participant   in   a   group

effecting” the acquisition based on the facts presented at trial.

Although the evidence showed that Abcouwer performed certain tasks

assigned to him by his superiors at NiSource, the jury could have

reasonably concluded that he was not a member of the select group

of   top   executives      that   actually   planned    and   effected     the

acquisition.

      NiSource also argues that the district abused its discretion

by improperly instructing the jury.              We have reviewed the jury

instruction in question and find no abuse of discretion. See

Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th Cir. 1999) (“We

review challenges to jury instructions for abuse of discretion.

The test of the adequacy of jury instructions is whether the jury


                                       4
charge, construed as a whole, adequately states the controlling

legal principle without misleading or confusing the jury”).

     Because we conclude that there was a legally sufficient basis

for the jury’s verdict and find no abuse of discretion in the jury

instructions, we affirm the district court’s denial of NiSource’s

motion for judgment as a matter of law or, in the alternative, for

new trial.

                                                         AFFIRMED




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