     11-0201-cv
     Luna v. American Airlines, Inc.

                                       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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   23rd day of September, two thousand fourteen.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               RAYMOND J. LOHIER, JR.,
 7                           Circuit Judges,
 8               VALERIE CAPRONI1
 9                           District Judge.
10   _____________________________________________________
11
12   MONSERRATE LUNA,
13
14                                       Plaintiff-Appellant,
15
16                                -v-                                             11-0201-cv
17
18   AMERICAN AIRLINES, INC., LSG SKY CHEFS,
19
20                           Defendants-Third-Party Plaintiffs-Counter Defendants-Appellees.2
21   __________________________________________
22
23   Appearing for Appellant:            Nadi Ganesan Viswanathan, Spring Valley, N.Y.
24
25   Appearing for Appellee:             Kenneth J. Gormley, Locke Lord Bissell & Liddell LLP, New
26                                       York, N.Y.
27
28


              1
            The Honorable Valerie Caproni, United States District Court for the Southern District
     of New York, sitting by designation.
              2
                  The Clerk is directed to amend the caption as above.
 1   Appeal from the United States District Court for the Southern District of New York (Dolinger,
 2   M.J.).
 3
 4        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 5   AND DECREED that the orders of said District Court be and hereby are AFFIRMED.
 6
 7            Appellant Monserrate Luna appeals from judgments and orders of the United States
 8   District Court for the Southern District of New York (Dolinger, M.J.) in addition to a jury
 9   verdict rendered against her in her suit against American Airlines, Inc. and LSG Sky Chefs for
10   injuries she claimed to have suffered as a result of eating an in-flight meal allegedly containing a
11   lizard. We assume the parties’ familiarity with the underlying facts, procedural history, and
12   issues on appeal.
13
14            Though appellant challenges the district court’s December 16, 2009 order denying her
15   motion for summary judgment, her brief does not clearly advance a “legal theory proposed as a
16   basis for reversal.” Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999).
17   Under most circumstances, “[i]ssues not sufficiently argued in the briefs are considered waived
18   and normally will not be addressed on appeal.” Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
19   1998). Moreover, we lack jurisdiction to review “an order denying summary judgment after a
20   full trial on the merits,” as such an order “retains its interlocutory character as simply a step
21   along the route to final judgment.” Ortiz v. Jordan, 562 U.S. 180, 131 S. Ct. 884, 889 (2010).
22   Appellant does not contend, nor do we find, that this case falls into the exception to this rule
23   “‘where the district court’s error was purely one of law.’” Stampf v. Long Island R.R. Co., —
24   F.3d — , 2014 WL 3732920, at *7 n.2 (2d Cir. July 30, 2014) (quoting Schaefer v. State Ins.
25   Fund, 207 F.3d 139, 142 (2d Cir. 2000)).
26
27            We also reject appellant’s contention that the jury verdict for defendants on her cause of
28   action for breach of implied warranty was “clearly against the overwhelming evidence.” As an
29   initial matter, appellant waived this argument by failing to timely move for judgment as a matter
30   of law. It is well established that, pursuant to Rule 50 of the Federal Rules of Civil Procedure, “a
31   party is not entitled to challenge on appeal the sufficiency of the evidence to support the jury’s
32   verdict on a given issue unless it has timely moved in the district court for judgment as a matter
33   of law on that issue” before the jury retires. Kirsch v. Fleet St., Ltd., 148 F.3d 149, 164 (2d Cir.
34   1998). “Notwithstanding the general rule, we may reach the waived issue if to ignore it would
35   result in manifest injustice.” Fabri v. United Techs. Int’l, Inc., 387 F.3d 109, 119 (2d Cir. 2004).
36   On appeal, however, appellant still falls short of the requirement that she “specify the judgment
37   sought and the law and facts that entitle the movant to the judgment.” Fed. R. Civ. P. 50(a)(2);
38   see also Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 286 (2d Cir. 1998)
39   (“[T]he specificity requirement is obligatory.”).
40
41           Even were we to entertain her argument, we could not disturb the credibility
42   determinations on which this case hinged. In order to succeed on her cause of action for breach
43   of implied warranty, appellant “had the burden of proving that the food was defective and that
44   her injury resulted from its consumption.” Valenti v. Great Atl. & Pac. Tea Co., 615 N.Y.S.2d
45   84, 85 (2d Dep’t 1994). Throughout litigation, the parties have disputed the nature of what
46   appellant discovered in her chicken dinner. In her initial verified complaint, appellant described
47   the foreign matter as “some insects,” but maintained throughout litigation that it was in fact a

                                                      2
 1   lizard. The American Airlines flight crew, on the other hand, has consistently testified that it was
 2   a piece of chicken skin with a few feathers attached. “In assessing such a motion, the court is not
 3   allowed to weigh the credibility of witnesses or consider the weight of the evidence.” See Kirsch,
 4   148 F.3d at 161. Rather, we are bound by the jury’s reasonable conclusion that appellant failed
 5   to establish by a preponderance of the evidence that the meal served to her was not “fit for
 6   human consumption.” Hohn v. S. Shore Serv., Inc., 529 N.Y.S.2d 129, 130 (2d Dep’t 1988); see
 7   also Tardella v. RJR Nabisco, Inc., 576 N.Y.S.2d 965 (3d Dep’t 1991). Accordingly, appellant’s
 8   contention that she offered “coherent, consistent and credible” testimony in support of her claim
 9   is unavailing.
10
11            Although appellant does not clearly raise the issue, we further note that the district court
12   properly granted partial summary judgment for defendants to the extent of dismissing appellant’s
13   claim for damages premised on physical injury and economic loss. On appeal from a final
14   judgment, we retain jurisdiction to review earlier grants of partial summary judgment, which
15   “merge in the judgment.” Gold v. N.Y. Life Ins. Co., 730 F.3d 137, 144 (2d Cir. 2013) (quoting
16   West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 781 (2d Cir. 1999)). Appellant did not offer
17   evidence linking her ingestion of the meal with the ailments she allegedly experienced thereafter.
18   Nor did the record evidence permit such an inference. See Brown v. City Sam Restaurants, Inc.,
19   666 N.Y.S.2d 409, 409 (1st Dep’t 1998) (“[I]t is mere speculation to attribute plaintiff’s flu-like
20   symptoms to his consumption of unwholesome or contaminated lobster at defendant’s restaurant,
21   where it is undisputed that plaintiff had eaten other foods earlier that day.”); Valenti, 615
22   N.Y.S.2d at 85 (“The mere fact that the plaintiff became nauseous about one-half hour after
23   consuming some of the contents of the can is insufficient to withstand the defendants’ motion for
24   summary judgment.”). Appellant also offered no evidence corroborating the extent or existence
25   of her monetary loss. Although “[w]e resolve all ambiguities and draw all reasonable inferences
26   in the light most favorable to the nonmoving party,” Summa v. Hofstra Univ., 708 F.3d 115, 123
27   (2d Cir. 2013), a party may not “rely on mere speculation or conjecture as to the true nature of
28   the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9,
29   12 (2d Cir. 1986). “The party who bears the burden of proof is not entitled to submit alternative
30   possibilities to a jury for speculative choice among them when the record supplies no evidentiary
31   basis for choice by logical inference.” Wieland v. C. A. Swanson & Sons, 223 F.2d 26, 27 (2d
32   Cir. 1955) (applying New Jersey law). The district court therefore properly granted summary
33   judgment for defendants to the extent of limiting appellant’s damages to those for emotional
34   distress. See Luna v. Am. Airlines, 676 F. Supp. 2d 192, 209 (S.D.N.Y. 2009).
35
36          We have considered the remainder of appellant’s arguments and find them to be without
37   merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
38   own costs.
39
40
41                                                         FOR THE COURT:
42                                                         Catherine O’Hagan Wolfe, Clerk
43




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