United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
matter is before the Court on (1) plaintiff Estate of Joyce
Rosamond Petersen's (“estate”) Motion to
Alter and Obtain Relief from Aspects of Judgment and for New
Trial on Certain Issues (Filing No. 291) and (2) defendant
William E. Bitters's (“Bitters”) Motion for
Judgment as a Matter of Law, or in the Alternative, Motion
for New Trial (Filing No. 289). The deadline for briefing on
these matters has passed and the motions are now ripe for
decision. For the reasons stated on the record at trial as
supplemented below, the parties' post-trial motions are
2006, Joyce Rosamond Petersen (“Petersen”), then
a resident of Omaha, Nebraska,  met Bitters, a financial advisor
based in Sioux City, Iowa. Bitters sold several financial
products to Petersen over the years, and, in 2008, prepared a
promissory note for a $150, 000 unsecured loan from Petersen
to defendant John L. Henry (“Henry”)-another of
Bitters's clients. Petersen died on October 20, 2013.
Henry never repaid the loan.
December 1, 2014, the estate, alleging diversity
jurisdiction, filed suit in the United States District Court
for the Eastern District of Texas against Bitters, Henry, and
Robert W. Boland (“Boland”),  for damages
arising out of the unpaid loan. The case was transferred to
this district on April 25, 2016. The lawsuit had a long and
troubling history of unprofessional conduct between counsel
in the case. Throughout the case, counsel were, at
best, discourteous to each other and to the magistrate judge,
literally spent days refereeing some real but mostly
unnecessary discovery disputes. A review of the many sidebar
conferences at trial, most of which were requested by Gaudet,
provides ample evidence of the constant interruptions and
argumentative nature of Gaudet's behavior throughout the
22, 2018, the Court granted in part Bitters's Motion for
Summary Judgment (Filing No. 184). Even though the Court had
made it clear that the matter was proceeding to trial, the
parties were not prepared for the final pretrial conference.
Again, the magistrate judge spent days trying to put together
an Order on Final Pretrial Conference (Filing No. 234). This
Court entered a Supplemental Order on Final Pretrial
Conference (Filing No. 243) setting forth the issues to be
tried. Neither party timely objected to the
issues as framed by this Court.
trial, the Court instructed the jury on the estate's
claim against Henry for breach of contract and the
estate's timely claims against Bitters for fraudulent
misrepresentation and breach of fiduciary duty. The jury found in
favor of the estate against Henry and calculated the
estate's damages to be $356, 619.30. The jury also found
in favor of the estate against Bitters on both claims and
calculated the estate's damages for those claims to be
the identical amount of $356, 619.30.
the estate's expert testified at trial that $356, 619.30
was the current value of the unpaid loan under the terms of
the promissory note. The jury awarded no other damages.
the trial, it was discovered that the estate had an
undisclosed and disconcerting agreement with Henry (Exhibit
216). That agreement provided for the dismissal of the
estate's claim against Henry after trial in exchange for
Henry's “truthful” testimony on certain
specified topics, with such truthfulness to be determined
solely by estate's counsel. Consistent with that
agreement, after the Court instructed and submitted the
matter to the jury, the estate moved to dismiss the case
against Henry. See Fed. R. Civ. P. 41(a)(2). The
Court took that motion under advisement, stated its concern
about the estate's gamesmanship, and denied the motion
after the jury reached its verdict (Filing No.
Standards of Review
estate seeks relief pursuant to Federal Rule of Civil
Procedure 59(e), Federal Rule of Civil Procedure 60(a)-(b)
and (d), and, alternatively, Rule 59(a). Bitters renews his
motion for judgment as a matter of law under Federal Rule of
Civil Procedure 50(b), Nassar v. Jackson, 779 F.3d
547, 551 (8th Cir. 2015), and seeks other relief under Rule
trial is required under Rule 59(a) “when a miscarriage
of justice occurred in the first trial.” Larson v.
Farmers Coop. Elevator, 211 F.3d 1089, 1095 (8th Cir.
2000). “[A] movant should not use Rule 59 merely to
relitigate previously-decided matters.” Am.
HealthNet, Inc. v. Westside Cmty. Hosp., Inc., No.
8:04CV9, 2006 WL 3063481, *1 (D. Neb. Oct. 24, 2006)
59(e) motions serve the limited function of correcting
‘manifest errors of law or fact or to present newly
discovered evidence.'” United States v. Metro.
St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)
(quoting Innovative Home Health Care, Inc. v. P.T.-O.T.
Assocs., 141 F.3d 1284, 1286 (8th Cir. 1998)). Such
motions are not devices to “introduce new evidence,
tender new legal theories, or raise arguments which could
have been offered or raised prior to entry of
judgment.” Id. (quoting Innovation Home
Health Care, 141 F.3d at 1286). Rule 60(b) and Rule
59(e) motions are analyzed identically, id. at 933
n.3, and will be considered together for this motion.
Rule 60(a), “a court may correct a judgment so as to
reflect what was understood, intended and agreed upon by the
parties and the court.” Kocher v. Dow Chem.
Co., 132 F.3d 1225, 1229 (8th Cir. 1997) (quoting
United States v. Mansion House Ctr. Redev. Co., 855
F.2d 524, 527 (8th Cir. 1988) (per curiam)). Simply put, Rule
60(a) “allows relief from a judgment based on clerical
mistakes in the record.” Alpern v. UtiliCorp
United, Inc., 84 F.3d 1525, 1538-39 (8th Cir. 1996).
60(d) permits the Court to set aside judgments for fraud on
the Court but relief “is only available where it would
be ‘manifestly unconscionable' to allow the
judgment to stand.” Superior Seafoods, Inc. v.
Tyson Foods, Inc., 620 F.3d 873, 878 (8th Cir. 2010).
Fraud on the Court “is narrowly defined as fraud which
is directed to the judicial machinery itself and is not fraud
between the parties or fraudulent documents, false statements
or perjury.” United States v. Smiley, 553 F.3d
1137, 1144 (8th Cir. 2009).
court reviewing a Rule 50(b) motion is limited to
consideration of only those grounds advanced in the original,
Rule 50(a) motion.” Nassar, 779 F.3d at 551.
Judgment as a matter of law is appropriate “only when
no reasonable juror, taking all reasonable inferences in the
light most favorable to the opposing party, could find
against the movant.” Estate of Snyder v.
Julian, 789 F.3d 883, 887 (8th Cir. 2015).
The Estate's Motion to Alter and Obtain Relief from
Aspects of the Judgment and for New Trial on Certain
estate seeks relief under Rules 59 and 60 on the following
issues: (1) general and compensatory damages in the judgment;
(2) punitive damages and attorney fees under Texas law; and
(3) liability for Bitters for negligence, negligent
misrepresentation, and breach of contract, and
“co-liability” for Bitters and Henry for civil
conspiracy. The estate simply reargues issues that have
already been decided in this case and attempts to inject
issues in the case following the jury's verdict. All of
the estate's objections were carefully considered and
resolved in this Court's prior rulings on dismissal
(Filing No. 121), summary judgment (Filing No. 221), the
Order on Final Pretrial Conference and Supplement thereto
(Filing Nos. 234 and 243), Rule 50 motion (Filing No. 286),
the Jury Instruction Conference (Filing No. 287), and the
Memorandum and Order (“Verdict Order”) (Filing
estate has not pointed to any newly discovered evidence or
manifest errors, clerical mistakes, fraud on the Court, or
miscarriage of justice. Instead, it simply rehashes previous
arguments. While there appears little reason to revisit these
issues, the Court will nonetheless provide a brief discussion
in order to remove any doubt that the estate's motion
General and Compensatory Damages in the Judgment
to Rule 59(e) and Rule 60(b), the estate seeks to alter the
amount of damages in the judgment. The estate also moves
under Rule 60(b) for the Court to award it damages for pain
and suffering, or, alternatively, for the Court to grant a
new trial on that issue under Rule 59(a). The requests are
denied on all grounds.
Court carefully considered and explained the damage award in
the Verdict Order. The only damages awarded by the jury were
the amount of the original note plus interest set forth in
the note and that is the only amount sufficiently supported
by the evidence in this case. The estate is not entitled to
recover that amount from both Bitters and Henry and double
its recovery to an amount unsupported by the evidence.
See Tolliver v. Visiting Nurse Ass'n, 771 N.W.2d
908, 916 (Neb. 2009) (“[A] party may not have double
recovery for a single injury.”). As the Court noted at
both the Rule 50 hearing and the jury-instruction conference,
because there is insufficient evidence of any damages beyond
the monetary damages awarded, it follows that the
estate's request for damages for pain and suffering must
also be denied on all grounds.
estate's request for a more detailed Judgment and
Memorandum and Order under Rule 60(a) is baseless. The
Judgment (Filing No. 282) entered in this case was clear and
thorough and without clerical mistakes.
Punitive Damages and Attorney Fees under Texas Law
estate seeks relief pursuant to Rule 59(e), asking for
punitive damages and attorney fees under Texas law. However,
Nebraska law-not Texas law-applies in this
case. As the Court noted in its Supplemental
Order on Final Pretrial Conference, Nebraska law is clear
that neither punitive damages nor attorney fees are available
in this case. See O'Brien v. Cessna Aircraft
Co., 903 N.W.2d 432, 458 (Neb. 2017) (finding punitive
damages contravene Article VII, § 5 of the Nebraska
Constitution); Parkert v. Lindquist, 693 N.W.2d 529,
531 (Neb. 2005) (recognizing that under Nebraska law contract
provisions like the one in the promissory note in this case
“requiring that in the event of litigation the
prevailing party will be entitled to attorney fees [are]
contrary to public policy and void”). To the latter
point, during a sidebar at trial, the estate conceded the
attorney fees provision in the note was unenforceable under
Nebraska law and attempted to elicit as much from its expert
to indicate that Bitters was negligent for including such an
unenforceable provision. The estate's request for
punitive damages and attorney fees is denied.
Negligence, Negligent Misrepresentation, Breach of Contract,
and Civil Conspiracy
estate urges this Court to hold Bitters liable for
negligence, negligent misrepresentation, and breach of
contract, and to hold Henry and Bitters liable for civil
conspiracy despite the fact that the Court did not instruct
the jury on those issues. The estate seeks relief under Rule
59(e) or, alternatively, a new trial pursuant to Rule 59(a)
and Rule 60(d).
due consideration, the negligence and breach-of-contract
claims against Bitters were dismissed at the Rule 50 hearing.
On the negligence claim, the Court echoed its decision on
summary judgment, finding that under the facts alleged the
claim was duplicative of the breach-of-fiduciary-duty claim,
see Renner v. Wurdeman, 434 N.W.2d 536, 542 (Neb.
1989) (affirming a dismissal of a redundant claim on summary
judgment), and barred by the applicable statute of
limitations, see Neb. Rev. Stat. § 25-207
(creating a four-year statute of limitations for torts). The
breach-of-contract claim fails because there was no evidence
of a written contract between Petersen and Bitters and any
oral-contract claim is barred by the applicable four-year
statute of limitations. See Neb. Rev. Stat. §
25-206. Accordingly, the estate is not entitled to relief on
estate's negligent-misrepresentation and civil-conspiracy
claims also fail. As the Court has noted in earlier rulings,
neither claim was included as controverted issues for trial
in the Court's Supplemental Order on Final Pretrial
Conference and the estate did not timely object to the
exclusion. The negligent-misrepresentation claim
was dismissed on summary judgment. And though the estate used
the term “civil conspiracy” in passing in the
Amended Complaint (Filing No. 99), the estate did not plead
it as a distinct theory of recovery. For those reasons, the
estate's incredible request for the Court to simply
assign liability for claims that were never tried is denied.
Bitters's Motion for Judgment as a Matter of Law, or in