    10-876-cv
    D’Cunha v. Genovese/Eckerd Corporation




                               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 9th day of March, two thousand eleven.

    PRESENT:
                JOHN M. WALKER, JR.,
                BARRINGTON D. PARKER,
                PETER W. HALL,
                      Circuit Judges.
    ____________________________________________________________

    Patrick D’Cunha,
                 Plaintiff-Appellant,

                    -v.-                                                        10-876-cv

    Genovese/Eckerd Corporation
                Defendant-Appellee,

    JCG (PLC) USA, LLC, et al.,
                Defendants.
    __________________________________________________________

    FOR APPELLANT:                  PATRICK D’CUNHA, pro se, Flushing, New York.

    FOR APPELLEE:                   JAMES BUCCI (Shirin W. Saks on the brief), Genova, Burns &
                                    Giantomasi, Newark, New Jersey.




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       Plaintiff-Appellant Patrick D’Cunha, pro se, appeals from the December 10, 2009

judgment of the United States District Court for the Eastern District of New York (Wolle, J.)

entering a jury verdict against him, and the district court’s February 19, 2010 denial of his post-

judgment motions.1 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

AND DECREED that the district court’s judgment is AFFIRMED.

       This Court reviews the denial of a motion for judgment as a matter of law de novo,

reviewing the evidence in the light most favorable to the non-moving party. See Highland

Capital Management LP v. Schneider, 607 F.3d 322, 326 (2d Cir. 2010). In considering the

evidence, the trial court may not “weigh evidence, assess credibility, or substitute its opinion of

the facts for that of the jury,” Vermont Plastics, Inc. v. Brine, Inc., 79 F.3d 272, 277 (2d Cir.

1996), and may grant the motion only when there is “an utter lack of evidence supporting the

verdict, so that the jury’s findings could only have resulted from pure guess-work, or when the

evidence [is] so overwhelming that reasonable and fair-minded persons could only have reached

the opposite result,” Doctor’s Assocs. Inc. v. Weible, 92 F.3d 108, 112 (2d Cir. 1996) (internal

quotation marks and citation omitted).

       To the extent that D’Cunha’s claims were not raised in his Rule 50(a) motion, they are

not properly before this Court for review. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 164 (2d

Cir. 1998) (“It is well established that a party is not entitled to challenge on appeal the

sufficiency of the evidence to support the jury’s verdict on a given issue unless it has timely

moved in the district court for judgment as a matter of law on that issue”). In any event, viewing


           1
            We assume the parties’ familiarity with the underlying facts and the procedural
   history of the case.


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the evidence in the light most favorable to the Appellee, a reasonable jury could conclude that

age was not the “but for” cause of the Appellee’s failure to hire D’Cunha in either August 2001

or February 2002. The Appellee presented evidence that, in August 2001, D’Cunha requested a

full-time position in New Jersey, close to New York and accessible by public transportation, and

that it did not have such a position available. It also presented evidence that D’Cunha stated that

he was not interested in the Sussex opening in February 2002. Although D’Cunha argues that

the jury erroneously credited the testimony of the Appellee’s witnesses instead of his, in ruling

on a motion for judgment as a matter of law, a court may not make credibility determinations

and “must disregard all evidence favorable to the moving party that the jury is not required to

believe.” Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007) (quoting Reeves v. Sanderson

Plumbing, 530 U.S. 133, 150-51 (2000)). Insofar as D’Cunha argues that the jury’s verdict was

against the weight of the evidence, that claim of error is unavailing, as “[t]he weight of the

evidence is a matter for argument to the jury, not a ground for reversal on appeal.” Schwartz v.

Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir. 1993). Accordingly, there was sufficient

evidence to support the jury’s verdict.

       This Court reviews a district court’s denial of a Rule 59(a) motion for a new trial for

abuse of discretion. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). “A

motion for a new trial ordinarily should not be granted unless the trial court is convinced that the

jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.”

Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 1997). The district court did not

abuse its discretion in denying D’Cunha’s motion, as D’Cunha failed to demonstrate that the

jury’s verdict was seriously erroneous or a miscarriage of justice. The record does not support


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his contention that the district court was biased against him and, to the extent that D’Cunha

argued that he was entitled to a new trial because the verdict was against the weight of the

evidence, the court’s decision is not reviewable on appeal. See Baker v. Dorfman, 239 F.3d 415,

422 (2d Cir. 2000).

       D’Cunha’s challenges to the district court’s evidentiary rulings lack merit. The district

court’s ruling precluding the parties from introducing this Court’s 2007 decision was not an

abuse of discretion. As a piece of evidence, the 2007 decision was not material to the

determinations to be made by the jury. To the extent that D’Cunha argues that the decision

established, as the law of the case, that he had met his burden of proof at trial, he is wrong. This

Court’s prior holding that summary judgment in favor of defendants was not warranted did not

prove any aspect of D’Cunha’s case for purposes of trial. See Terry v. Ashcroft, 336 F.3d 128,

137 (2d Cir. 2003) (setting forth standard for summary judgment); see also Sagendorf-Teal v.

County of Rochester, 100 F.3d 270, 277 (2d Cir. 1996) (law of the case doctrine did not prevent

court from dismissing plaintiffs’ claims, even though it had previously denied a defense motion

for summary judgment, when new evidence adduced at trial demonstrated the defendants’ lack

of involvement in firing the plaintiff from her job).

       The court did not abuse its discretion by allowing a deposition to be played for the jury.

D’Cunha does not contest that the witness was unavailable, and the witness’s deposition was

therefore admissible. See Fed. R. Evid. 804(b)(1). Although on appeal D’Cunha contends that

the district court erred by allowing the deposition to be played out of sequence, he did not object

to this procedure below. The district court explained to the jury that the deposition should be

considered part of the Appellee’s case. The testimony was relevant, as it related to the


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calculation of damages, and the court excluded the portions of the testimony dealing with

D’Cunha’s allegation that a subsequent employer had discriminated against him.

       The admission of evidence that Jimmy Tran hired candidates over the age of 40 for

positions outside of New Jersey was not improper. This evidence was relevant to rebut Tran’s

alleged discriminatory intent. The court properly excluded the complaint, the answer, and

D’Cunha’s deposition, as these documents were inadmissible hearsay. See Fed. R. Evid. 801.

Considering all of D’Cunha’s claims of error, he has not demonstrated that any of the contested

evidentiary rulings were prejudicial to the ultimate result of trial. The jury’s verdict clearly

indicates that it credited the testimony of the Appellee’s witnesses over that of D’Cunha.

       This Court “review[s] a district court’s jury instruction de novo to determine whether the

jury was misled about the correct legal standard or was otherwise inadequately informed of

controlling law. A new trial is required if, considering the instruction as a whole, the cited errors

were not harmless but in fact prejudiced the objecting party.” Girden v. Sandals Int’l, 262 F.3d

195, 203 (2d Cir. 2001) (internal quotation marks and citation omitted). Here, to the extent that

D’Cunha challenges the court’s refusal to give instructions related to damages, his claims are

moot, because the jury found that Eckerd was not liable for age discrimination. A review of the

district court’s complete instruction indicates that it informed the jury of the correct standard,

and D’Cunha has failed to demonstrate that he was prejudiced by the jury instruction.

       As to D’Cunha’s contention that the court erred by denying his request to bifurcate the

trial, a court may bifurcate a trial for “convenience, to avoid prejudice, or to expedite and

economize.” Fed. R. Civ. P. 42(b). The district court’s denial of D’Cunha’s request for a

bifurcated trial was not an abuse of discretion, see Vichare v. AMBAC Inc., 106 F.3d 457, 467


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(2d Cir. 1996), for the reasons, inter alia, that D’Cunha did not request bifurcation until the first

day of trial and he has not demonstrated that he was prejudiced.

       D’Cunha has argued that the district court “did not accept [his] Proposed Voir Dire” and

did not allow the parties to question the potential jurors. The record, however, reflects that

neither party objected to seating any of the jurors, and D’Cunha has not identified what questions

he requested be asked, or would like to have asked himself, that the court did not permit. Given

D’Cunha’s limited argument on this point, he has not demonstrated that the court abused its

discretion. See Pitasi v. Stratton Corp., 968 F.2d 1558, 1563 (2d Cir. 1992) (finding that the

“content and quality of the voir dire are generally committed to the sound discretion of the

court”).

       We have considered all of the appellant’s arguments and find them to be without merit.

       Accordingly, the judgment of the district court is AFFIRMED.



                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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