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<pre>      [NOT FOR PUBLICATION   NOT TO BE CITED AS PRECEDENT] <br>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br>No. 98-1552 <br> <br>                         RAMON A. TANON, <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                 PALADIN PRODUCTS, INC., ET AL., <br> <br>                           Defendants, <br> <br>                       ____________________ <br> <br>                         KENNY O'CONNELL, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>            [Hon. Justo Arenas, U.S. Magistrate Judge] <br> <br> <br> <br>                              Before <br> <br>                    Selya, Boudin and Stahl, <br>                                 <br>                        Circuit Judges. <br>                                 <br>                                 <br>                                 <br>     Thomas C. Jennings III for appellant. <br>     Sigfredo A. Irizarry-Semidei on brief for appellee. <br> <br> <br> <br> <br> <br>April 29, 1999 <br> <br> <br> <br>

  SELYA, Circuit Judge.  This appeal trails in the wake of <br>a capsized commercial transaction.  In the underlying litigation, <br>brought pursuant to diversity jurisdiction, 28 U.S.C.  1332(a) <br>(1994), Ramon A. Ta
n sued Paladin Products, Inc. (Paladin), a <br>printing equipment vendor, and its principal, appellant Kenny <br>O'Connell.  In his amended complaint, Ta
n claimed that Paladin, <br>through O'Connell, convinced him to order $167,500 worth of <br>equipment, accepted a $75,000 deposit, failed to deliver the goods <br>within a reasonable time, and reneged on a promise to rescind the <br>transaction and refund his money.  As to O'Connell, Ta
n claimed <br>that, as Paladin's president and sole shareholder, he was the <br>company's alter ego (and, thus, personally answerable for its <br>dereliction), and that he was guilty of negligent misrepresentation <br>which proximately caused Ta
n's losses.  Paladin and O'Connell <br>defended the suit on substantive grounds, and O'Connell also moved <br>to dismiss for want of in personam jurisdiction. <br>  The parties consented to trial before a magistrate judge.  <br>See 28 U.S.C.  636(c); Fed. R. Civ. P. 73(b).  The magistrate <br>bifurcated the case, severing the claims against the two <br>defendants.  In the first trial, a jury found Paladin liable for <br>breach of contract and awarded Ta
n $96,000.  At a hearing on <br>Paladin's unsuccessful post-trial motion for judgment as a matter <br>of law, the magistrate addressed O'Connell's pending motion to <br>dismiss and, although he found that personal jurisdiction existed, <br>he dismissed Ta
n's claim against O'Connell sua sponte because <br>Ta
n had not produced evidence sufficient to show that O'Connell <br>was Paladin's alter ego.  On appeal, we affirmed the judgment <br>against Paladin, but vacated the judgment in O'Connell's favor on <br>a purely procedural ground, holding that the magistrate had not <br>given any forewarning of his intention to exceed the bounds of the <br>pending motion and reach the issue of O'Connell's substantive <br>liability.  We concluded that, as a result, "Ta
n was never <br>afforded an adequate opportunity to put his best foot forward and <br>muster his evidence on the dispositive point."  Ta
n v. Paladin <br>Prods., Inc., Nos. 96-2059, 96-2060, slip op. at 7 (1st Cir. Oct. <br>3, 1997) (unpublished) (Ta
n I). <br>  The magistrate convened a second trial, limited to <br>Ta
n's claims against O'Connell.  The jury returned a general <br>verdict in Ta
n's favor and the court entered judgment for <br>$96,000.  O'Connell now appeals.  In a brief that charitably can be <br>called discursive, he makes a plethora of arguments.  They  boil <br>down to three main points.  We address each in turn. <br>  1.  O'Connell contends that, under the mandate rule, the <br>magistrate erred in permitting the issue of negligent <br>misrepresentation to go to the jury.  In the large, the mandate <br>rule provides that lower courts must comply with the instructions <br>of a higher court's remand order.  See Field v. Mans, 157 F.3d 35, <br>40 (1st Cir. 1998); United States v. Bell, 988 F.2d 247, 251 (1st <br>Cir. 1993).  This means, of course, that courts ordinarily may not <br>reopen issues that have been decided or foreclosed by a superior <br>tribunal.  Along these lines, O'Connell contends that our opinion <br>in Ta
n I had the effect of limiting the subsequent trial to the <br>alter ego issue (to the exclusion of the negligence issue).  This <br>contention is premised upon a gross misreading of our earlier <br>opinion. <br>  To be sure, in Ta
n I we referred only to the alter ego <br>claim   but that was because the magistrate had focused exclusively <br>on that claim.  Our concern, however, was not with Ta
n's <br>substantive theories of recovery, but, rather, with whether the sua <br>sponte dismissal deprived Ta
n of a fair chance to adduce evidence <br>of O'Connell's liability under any properly pleaded theory.  For <br>this reason we stressed that our emphasis was "procedural," Ta
n <br>I, slip op. at 6, and, in remanding, we did not in any way restrain <br>the lower court from airing any or all of the claims against <br>O'Connell that Ta
n had raised in his amended complaint, see id. <br>at 9 (ordering the lower court to conduct "further proceedings <br>consistent with this opinion").  To be faithful to that mandate, <br>the magistrate, on remand, had an obligation to afford Ta
n a full <br>and fair opportunity to prove all the allegations contained in his <br>amended complaint (including the allegations of negligence).  The <br>magistrate followed this course precisely.  The assignment of error <br>therefore fails. <br>  2.  In a related vein, Ta
n challenges the jury <br>instructions and the admission of evidence insofar as those rulings <br>relate to the negligence issue.  For the most part, these <br>challenges are bound up in O'Connell's claim that the issue of <br>negligence did not belong in the case.  To that extent, the <br>challenges lack force.  See supra. <br>  Although this circumstance does not entirely close the <br>door, it narrows the aperture considerably.  Fed. R. Civ. P. 51 <br>completes the task.  Rule 51 provides that, as a necessary <br>predicate for assigning error to a jury instruction, an appellant <br>must object before the jury retires, state distinctly the matter <br>objected to, and limn the grounds of the objection.  In this case, <br>the appellant made only a general objection to the giving of any <br>negligence instruction.  Under the rule, therefore, the appellant <br>has forfeited the right to press other or different objections to <br>the charge.  See Elliott v. S.D. Warren Co., 134 F.3d 1, 5-6 (1st <br>Cir. 1998); La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689, 691- <br>92 (1st Cir. 1991). <br>  The door still remains slightly ajar.  Even in the <br>absence of a proper objection, an appellate court may review a jury <br>instruction for plain error.  See Moore v. Murphy, 47 F.3d 8, 11 <br>(1st Cir. 1995); Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st <br>Cir. 1991).  For three reasons, this exception is of no solace to <br>O'Connell.  First, the plain-error hurdle is high   and it is at <br>its apex in respect to claims of instructional error in civil <br>cases.  See Toscano, 934 F.2d at 385; 9A Charles A. Wright & Arthur <br>R. Miller, Federal Practice and Procedure  2558, at 469 (2d ed. <br>1995) ("If there is to be a plain error exception to Rule 51 at <br>all, it should be confined to the exceptional case when the error <br>seriously has affected the fairness, integrity, or public <br>reputation of the trial court's proceedings.").  Second, the <br>verdict against O'Connell seems amply justified, and justice does <br>not appear to have miscarried.  See Scarfo v. Cabletron Sys., Inc., <br>54 F.3d 931, 940 (1st Cir. 1995) (explaining that, to warrant <br>setting aside a verdict, an appellant normally must show that an <br>unpreserved instructional error "caused a miscarriage of justice or <br>. . . undermined the integrity of the judicial process").  Last   <br>but surely not least   our review of the instructions in this case <br>reveals nothing that strikes us as error, let alone error <br>sufficiently egregious to warrant plain-error review. <br>  3.  The appellant posits that the evidence adduced at <br>trial is insufficient as a matter of law to sustain the verdict.  <br>The principal problem with this asseveration is that the appellant <br>neglected to make a motion for judgment as a matter of law either <br>at the close of the plaintiff's case in chief, or at the close of <br>all the evidence.  See Fed. R. Civ. P. 50(a).  He then compounded <br>his lapse by failing to move for judgment notwithstanding the <br>verdict. See Fed. R. Civ. P. 50(b).  When a defendant has not made <br>a timely motion for judgment as a matter of law, the court of <br>appeals ordinarily will not consider the legal sufficiency of the <br>evidence.  See Hammond v. T.J. Litle & Co., 82 F.3d 1166, 1171 (1st <br>Cir. 1996); La Amiga del Pueblo, 937 F.2d at 691; Jusino v. Zayas, <br>875 F.2d 986, 991 (1st Cir. 1989). <br>  Of course, in La Amiga del Pueblo we acknowledged that, <br>even absent such a motion, the court of appeals retains a modicum <br>of residual discretion to inquire whether the record reflects a <br>total absence of evidentiary support for the jury's verdict.  See <br>La Amiga del Pueblo, 937 F.2d at 691.  Here, however, such a <br>canvass quickly reveals that the evidence is not so lopsided as to <br>bring this seldom-invoked discretion into play. <br>  We need go no further.  Concluding, as we do, that <br>O'Connell's appeal lacks any semblance of merit, we affirm the <br>judgment below. <br> <br>Affirmed.  Costs to appellee.</pre>

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