         11-4583-cv
         United States v. 25.202 Acres of Land, et al.

                                 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.


 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 9th day of November, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                         Circuit Judges
 9                DAVID G. LARIMER,*
10                         District Judge.
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Plaintiff-Appellee,
16
17                      v.                                           11-4583-cv
18
19       25.202 ACRES OF LAND AND BUILDING AFFIXED
20       TO THE LAND LOCATED IN THE TOWN OF
21       CHAMPLAIN, CLINTON COUNTY, NEW YORK; AND,
22       AMEXX WAREHOUSE COMPANY, INC., D/B/A
23       DUTY FREE AMERICAS, INC.,
24
25                                     Defendants-Appellants.
26
27
28
29

                *
                Judge David G. Larimer, of the United States District
         Court for the Western District of New York, sitting by
         designation.
 1   FOR APPELLANT:    JEFFREY B. CROCKETT (Paul J. Schwiep,
 2                     Gabriel Groisman, on the brief), Coffey
 3                     Burlington, P.L., Miami, FL.
 4
 5
 6   FOR APPELLEE:     MICHAEL T. GRAY (John Holm, Kristen
 7                     Muenzen), for Ignacia S. Moreno,
 8                     Assistant Attorney General, United States
 9                     Department of Justice, Environment &
10                     Natural Resource Division, Jacksonville,
11                     FL.
12
13
14        Appeal from the United States District Court for the
15   Northern District of New York (Mordue, J.).
16
17       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

18   AND DECREED that the judgments and memorandum-decision and

19   order of the United States District Court for the Northern

20   District of New York (Mordue, J.) are AFFIRMED.

21       On April 4, 2006, Plaintiff-Appellee United States of

22   America (the “government”), pursuant to its eminent domain

23   powers, initiated a condemnation proceeding against

24   Defendants-Appellants1.   Appellants conceded that the

25   government’s action was within the scope of its powers and

26   proceeded to litigate the amount of just compensation that

27   the government owed for the property.   On August 19, 2010,


         1
           We refer to the 25.202 acres of land and the building
     affixed to the land located in the Town of Champlain,
     Clinton County, New York; and Amexx Warehouse Company, Inc.,
     d/b/a Duty Free Americas, Inc. collectively as “Defendants-
     Appellants” or “Appellants” throughout this summary order.
                                   2
1    at the close of trial, the jury returned a verdict to

2    Appellants in the amount of $208,000.     Judgment was entered

3    the next day. Soon after, on September 15, 2010, Appellants

4    moved for a new trial.     Without ruling on that motion, the

5    district court entered the final judgment for that amount on

6    November 8, 2010.     Appellants renewed their motion for a new

7    trial, and, on September 30, 2011, the district court in its

8    memorandum-decision and order denied that motion.     This

9    appeal from the verdict, judgment, final judgment, and

10   memorandum-decision and order followed.     The panel has

11   reviewed the briefs and the record in this appeal and agrees

12   unanimously that oral argument is unnecessary because “the

13   facts and legal arguments [have been] adequately presented

14   in the briefs and record, and the decisional process would

15   not be significantly aided by oral argument.”     Fed. R. App.

16   P. 34(a)(2)(c).     We assume the parties’ familiarity with the

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

18   appeal.

19       Appellants’ central argument is that the district court

20   erred in precluding their expert from testifying as to the

21   value of the land.     Here, as they did on their motion for a

22   new trial, Appellants argue that the exclusion of that


                                     3
1    testimony resulted in a verdict that was manifestly unjust

2    and a miscarriage of justice.

3        “We review for abuse of discretion a district court’s

4    disposition of a motion for a new trial,” Nimely v. City of

5    New York, 414 F.3d 381, 392 (2d Cir. 2005), keeping in mind

6    that “[a] motion for a new trial ordinarily should not be

7    granted unless the trial court is convinced that the jury

8    has reached a seriously erroneous result or that the verdict

9    is a miscarriage of justice.”       Medforms, Inc. v. Healthcare

10   Mgmt. Solutions, Inc., 290 F.3d 98, 106 (2d Cir. 2002)

11   (internal quotation marks and citations omitted).      “The

12   district court’s evidentiary rulings, and in particular its

13   determinations regarding the admissibility of expert

14   testimony, are also reviewed for abuse of discretion.”

15   Nimely, 414 F.3d at 393 (internal citations omitted).         “A

16   decision to . . . exclude expert . . . testimony is not an

17   abuse of discretion unless it is ‘manifestly erroneous.’”

18   Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265

19   (2d Cir. 2002) (internal citations omitted).

20       “[T]he district court has a gatekeeping function . . .

21   [and] is charged with the task of ensuring that an expert’s

22   testimony . . . rests on a reliable foundation . . . .”            Id.


                                     4
1    (internal quotation marks and citations omitted).      “In

2    deciding whether a step in an expert’s analysis is

3    unreliable, the district court should undertake a rigorous

4    examination of the facts on which the expert relies, the

5    method by which the expert draws an opinion from those

6    facts, and how the expert applies the facts and methods to

7    the case at hand.”     Id. at 267.   “[W]hen an expert opinion

8    is based on . . . a methodology . . . that [is] simply

9    inadequate to support the conclusions reached, Daubert and

10   Rule 702 mandate the exclusion of that unreliable opinion

11   testimony.”     Id. at 266.

12       Here, we are convinced that the district court did not

13   abuse its discretion in excluding the expert’s testimony

14   and, subsequently, in denying the motion for a new trial.

15   The district court adopted Magistrate Judge DiBianco’s

16   thorough report exposing the unreliability of the expert’s

17   methods.     We will not repeat that analysis at length here,

18   but we are convinced that the district court competently

19   undertook its gatekeeping function.     We do note, however,

20   that the expert was allowed to testify that in his opinion,

21   the highest and best use of the property was a duty-free

22   store.     In addition, although the district court precluded


                                     5
1    the expert from giving his opinion as to the value of the

2    property, which was based on the income-capitalization

3    method of valuation, Appellants’ representative was

4    permitted to testify–over the government’s objection–about

5    his opinion of the land’s value, based on an “income”

6    approach.   Largely for the reasons that the district court

7    articulated in its memorandum-decision and order, we affirm

8    the verdict, judgments, and the order denying the motion for

9    a new trial in all respects.

10       We have considered Appellants’ remaining arguments and,

11   after a thorough review of the record, find them to be

12   without merit.

13       For the foregoing reasons, the memorandum-decision and

14   order is AFFIRMED.

15
16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
19




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