OPINION
RONALD LEE GILMAN, Circuit Judge.
Walter Murphy Webb pled guilty to producing counterfeit bills and using the bills to purchase merchandise at several businesses in eastern Kentucky. The district court imposed an above-Guidelines sentence of 37 months' imprisonment. Webb now appeals, arguing that his sentence was both procedurally and substantively unreasonable. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
Webb used an all-in-one printer/scanner/copier to create multiple $50 -counterfeit bills on June 1, 2006. The next day, Webb used one of the counterfeit bills to make purchases at the Triple J Oil convenience store in Harlan, Kentucky. Later that same day, Webb attempted to use another counterfeit bill at the Harlan Exxon Happy Mart, but the clerk concluded that the bill was fake and refused to accept it as payment. The clerk kept the fake bill, called the police, and turned the bill over to them. When Webb was arrested shortly thereafter, he had one counterfeit bill on him. The police also recovered the counterfeit bill used at the Triple J.
Kentucky state police officers subsequently interviewed Webb's wife, Leslee, who died before Webb was sentenced. She told them that Webb had used counterfeit bills at McDonald's and Smokin Joe's, both in Harlan, Kentucky. After Webb waived his Miranda rights, he was interviewed by the U.S. Secret Service. He admitted to having used the printer to create the counterfeit bills and also said that he had passed one counterfeit bill at McDonald's, one to a local drug dealer, and one at a Pilot Gas Station in Middlesboro, Kentucky. Webb also admitted that he had attempted to pass a counterfeit bill at the Harlan Exxon Happy Mart. In total, the government contended that Webb was responsible for creating at least six counterfeit $50 bills: the three that were recovered and at least three that the government was not able to recover.
Webb .was indicted in October 2008 on one count of counterfeiting a Federal Reserve Note, in violation of 18 U.S.C. § 471; two counts of passing counterfeit notes, in violation of 18 U.S.C. § 472; and one forfeiture count under 18- U.S.C. § 492 and 28 U.S.C. § 2461(c). Pursuant to a written plea agreement, Webb pled guilty in June 2009 to the counterfeiting count, one of the passing-counterfeit-notes counts (for attempting to use a $50 counterfeit bill at the Harlan. Exxon Happy Mart), and the forfeiture count.
The Presentence Report (PSR) recommended a total offense level of 13 and a criminal history category of III, resulting in a Guidelines range of 18 to 24 months' imprisonment. Included in this calculation was a two-point increase in offense level pursuant to U.S. Sentencing Guidelines (U.S.S.G.) § 2B5.1(b)(2)(A), which applies where the defendant "manufactured or produced any counterfeit obligation or security of the United States." This had the effect of putting Webb's offense level at 15. But the PSR also recommended a two-point reduction in offense level for acceptance of responsibility, which reduced the total offense level back to 13.
At sentencing, Webb objected to the application of § 2B5.1(b)(2)(A) on the basis of Application Note 4, which provides that the two-point increase in offense level does not apply "to persons who produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny." U.S.S.G. § 2B5.1(b)(2)(A) App. Note 4 (2008). Webb specifically contended that the Exxon Happy Mart store clerk's immediate recognition that the bill was fake meant that the bills were of such low quality that Application Note 4 should apply. He also asserted that his confession to the Secret Service where he admitted to successfully passing three other bills is not reliable because he was inebriated at the time of the interview. Webb did not otherwise object to the PSR.
In response, the government called Secret Service Agent Paul McClanahan, who testified that the quality of Webb's counterfeit notes was "decent," that the bills were similar to those he had seen passed successfully, and that the bills in question would "probably" be accepted even if subjected to minimal scrutiny. The government further contended that there was no evidence in the record that Webb was inebriated when he was interviewed by the Secret Service, which Webb's attorney subsequently admitted.
After hearing testimony and the arguments of counsel, the district court examined the three recovered counterfeit bills and compared them to genuine bills. The court concluded that the bills looked real and that "if given minimal scrutiny, [they] would probably pass." In addition, the court noted that, based on Webb's statement alone, three of the bills were indeed successfully passed. The court thus applied the two-point increase pursuant to U.S.S.G. § 2B5.1(b)(2)(A).
After discussing Webb's extensive history of substance abuse, the district court imposed an above-Guidelines sentence of 37 months because Webb would not have been eligible for an intensive substance-abuse treatment program if he were sentenced to no more than the top of the applicable Guidelines range (24 months). Webb now appeals, arguing both that the district court procedurally erred in applying U.S. S.G. § 2B5.1(b)(2)(A) and that his 37-month sentence is substantively unreasonable.
II. ANALYSIS
A. Application of U.S.S.G. § 2B5.1(b)(2)(A)
We review a sentence imposed by the district court for reasonableness. United States v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006). "The question of whether a sentence is reasonable is determined using the abuse-of-discretion standard of review. . . . Review for reasonableness has both procedural and substantive components." United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007). A district court commits procedural error by, among other things, "selecting a sentence based on clearly erroneous facts." United States v. Voivell, 516 F.3d 503, 510 (6th Cir. 2008) (citation omitted).
In the instant case, Webb disputes the district court's finding that the counterfeit bills could be successfully passed even if they were subjected to minimal scrutiny. Such a factual finding is reviewed for clear error. United States v. King, 516 F.3d 425, 427 (6th Cir. 2008). A finding is clearly erroneous where, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Perez, 871 F.2d 45, 48 (6th Cir. 1989) (citation omitted).
The purpose of the two-point enhancement in U.S.S.G. § 2B5.1(b)(2)(A) "is to punish those who produce counterfeit items more harshly than those who simply pass the items. . . . [But][i]f the items are obviously counterfeit, there is less reason to punish that counterfeiter more severely because the items are unlikely to be accepted and the harm done by the producer is less." United States v. Baronia, 287 F.3d 607, 609 (7th Cir. 2002).
The district court correctly noted that this court has used the following five factors to determine the quality of a counterfeit bill and thus whether the Application Note 4 exception should apply:
(1) physical inspection during the trial or at the sentencing hearing; (2) whether the. counterfeit notes were successfully passed; (3) the number of counterfeit notes successfully passed; (4) the proportion of the number of counterfeit notes successfully passed to the number of notes attempted to be passed; and (5) the testimony of a lay witness who accepted one or more of the counterfeit notes or an expert witness who testifies as to the quality of the counterfeit notes.
United States v. Black, No. 99-6634,
2000 WL 876509, at *2 (6th Cir. June 21, 2000) (quoting
United, States v. Miller, 77 F.3d 71, 76 (4th Cir. 1996)). We agree that the above factors provide helpful guidance in determining the quality of a counterfeit bill.
Consideration of the first and fifth factors clearly weigh in favor of finding that Webb's counterfeit bills would pass minimal scrutiny. At sentencing, the district court examined the bills and compared their appearance and feel to genuine bills, concluding that "a layperson would accept these notes." In addition, Agent McClanahan testified that the bill quality was "decent," and that even if the bills were subjected to minimal scrutiny, the bills would "probably" pass. He based this opinion on his extensive training, his involvement in over 20 counterfeiting cases, and his experience in comparing hundreds of counterfeit bills to genuine bills. The district court's analysis and the expert testimony therefore support a conclusion that the bills were of sufficient quality that the Application Note 4 exception would not apply. See Black, 2000 WL 876509, at *2 (holding that the § 2B5.1(b)(2)(A) enhancement applied where a Secret Service agent testified that the bills would likely pass successfully and where the district court examined the counterfeit bills and compared them to genuine currency).
In contrast, the second, third, and fourth factors are more debatable. The PSR concluded that Webb produced at least six counterfeit bills, three that were recovered and three that were not. Webb never objected to this statement in the PSR. See United States v. Carter, 355 F.3d 920, 925 (6th Cir. 2004) (holding that "[t]he district court is allowed to accept as true all factual allegations in a presentence report to which the defendant does not object" (citation omitted)). The district court concluded that, based on Webb's admissions alone, at least three of the bills were successfully passed — to McDonald's, the drug dealer, and the Pilot Gas Station. Although Webb now argues that he was intoxicated at the time he gave this statement, there is no evidence of this in the record because Webb did not so testify at the sentencing hearing. The statement of Webb's attorney at sentencing regarding Webb's alleged intoxication is not evidence. Moreover, Webb never objected to his admissions as characterized in the PSR. The record therefore supports the finding that at least half of the bills were successfully passed, which in turn supports the conclusion that Application Note 4 should not apply.
Webb responds by arguing that the clerk at the Exxon Happy Mart immediately concluded that the bill was counterfeit because it felt too thick. Although this fact weighs against a finding that the bills would pass minimal scrutiny, it is not sufficient to overcome the district court's own analysis, the testimony of the expert witness, and the fact that at least half of the bills were successfully passed. The district court thus did not clearly err in refusing to apply the Application Note 4 exception for bills that are "so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny."
B. Substantive reasonableness of Webb's 37-month sentence
Webb next contends that his 37-month sentence is substantively unreasonable, arguing that the district court erred by giving improper weight to two of the sentencing factors contained in 18 U.S.C. § 3553(a): (1) the need to protect the public, and (2) providing the defendant with an opportunity for rehabilitation of his substance-abuse problems.
The district court "must consider all of the relevant § 3553(a) factors and impose a sentence that is sufficient but not greater than necessary to comply with the purposes of § 3553(a)(2)." United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008) (citation and internal quotation marks omitted). "A sentence may be considered substantively unreasonable when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor." Id. Although the district court below imposed an above-Guidelines sentence, such a sentence "is not presumptively un reasonable." See id. (emphasis in original).
As an initial matter, we observe that the government's brief addresses the split of authority regarding the tension between 18 U.S.C. § 3553(a)(2)(D), which permits a sentencing court to analyze the need to provide "the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner," and 18 U.S.C. § 3582(a), which instructs sentencing courts to "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation." See In re Sealed Case, 573 F.3d 844, 848-49 (D.C. Cir. 2009) (comparing cases that have held that § 3582(a) does not bar a court from imposing a longer prison term in order to promote rehabilitation and those that have come to the opposite conclusion). The district court's decision to select a 37-month sentence in order to give Webb the opportunity to receive substance-abuse rehabilitation at least potentially implicates the concerns embodied in § 3582(a). Webb, however, does not argue on appeal that his sentence runs afoul of § 3582(a). We therefore decline to address the issue. See Thaddeus-X v. Blatter, 175 F.3d 378, 403 n. 18 (6th Cir. 1999) (declining to address an argument not properly raised on appeal in the appellant's opening brief).
Turning now to the reasonableness of Webb's sentence, we acknowledge that the district court gave significant emphasis to protecting the public and the need for Webb to enter a substance-abuse rehabilitation program. In addition to charges for aggravated assault, theft, operating a vehicle on a suspended license, leaving the scene of an accident, forgery, and possession of a controlled substance, Webb had previously been arrested at least four times for public intoxication and at least twice for driving while intoxicated, The district court's emphasis on these two factors was therefore warranted in light of (1) Webb's lengthy history of substance abuse, (2) the significant number of crimes that Webb has committed while inebriated, and (3) the likelihood that Webb could injure someone while drinking and driving or while committing a similar offense. See United States v. Tristan-Madrigal, 601 F.3d 629, 633-36 (6th Cir. 2010) (holding that the weight that the district court gave to the defendant's four prior drunk-driving convictions and the need to protect the public was reasonable and supported an above-Guidelines sentence for an illegal reentry conviction). The weight that the district court gave to these two factors was thus not unreasonable. Indeed, it was justified given Webb's background.
Moreover, the district court discussed several of the other § 3553(a) sentencing factors. This discussion included Webb's family life and upbringing, the question of whether the counterfeit victims had been compensated, and whether Webb's sentence would create a sentencing disparity when compared to other similarly situated defendants. The court also explained that if Webb successfully completed his rehabilitation program, he would receive a 12-month reduction in his sentence. Finally, the court informed Webb that it was imposing a 37-month sentence rather than a 36-month sentence because the latter sentence would not qualify Webb for good-time credits to reduce his sentence even further. In short, the record reflects that the district court carefully considered many of the § 3553(a) sentencing factors, gave appropriate weight to the most relevant factors, and ultimately reached a reasoned conclusion.
Webb argues for the first time on appeal that the district court failed to recognize that his eligibility for the substance-abuse rehabilitation program is within the discretion of the Bureau of Prisons, and that even if he successfully completes the program, the Bureau is not required to reduce his sentence. To support this argument, Webb cites 18 U.S.C. § 3621(e)(2)(B), which provides that "[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve."
Webb, however, does not argue that a remand is warranted because of the district court's apparent misapprehension. Rather, he asserts that this court's review for reasonableness should be of his 37-month sentence, independent of any potential reduction he may receive. As this opinion makes clear, our reasonableness review is of Webb's 37-month sentence.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
or judgment as a matter of law on this ground is denied.
IV. Utility Trailer's Motion for Judgment as a Matter of Law and New Trial
As noted above, the jury rejected Utility Trailer's claims against MAC for breach of contract and violation of the KDMLA. The jury also rejected Utility Trailer's claim against Summit for tortious interference with an existing contract. In its post-trial motion, Utility Trailer asserts it is entitled to judgment as a matter of law on the KDMLA claim based on the facts contained within the four corners of the Dealer Agreement. Utility Trailer also argues a new trial is warranted on its claims of breach of contract against MAC and tortious interference with contract against Summit because defendants willfully failed to produce a document during discovery. The court will address each argument in turn.
A. KDMLA Claim
Utility Trailer asserts that the KDMLA governed its relationship with MAC. The KDMLA requires vehicle dealers selling vehicles in Kansas to have a franchise agreement with the manufacturer of the vehicle. Section 8-2414 of the KDMLA sets forth a number of requirements that must be met before a manufacturer may cancel or terminate the franchise agreement. In the event of cancellation or termination, § 8-2414 places additional requirements on the manufacturer, such as repurchasing certain inventory and paying the dealer the fair rental value of its place of business. Utility Trailer's claim against MAC under the KDMLA asserted that MAC cancelled the Dealer Agreement without following the provisions of § 8-2414. As part of its claim, Utility Trailer asserted that the Dealer Agreement constituted a franchise agreement.
Under K.S.A. § 8-2401(a), (h), a "vehicle dealer" includes any person who is in the business of buying or selling trailers. Defendants do not dispute that Utility Trailer is a vehicle dealer.
K.S.A. § 8-2404(q); see also Doonan Trailer Corp. v. Am. Trailers, Inc., No. 61161, 798 P.2d 972, 1988 Kan. App. Lexis 370, at *2 (Kan. Ct. App. May 27, 1988) ("[T]he requirement of a franchise agreement applies to sales of trailers.").
K.S.A. § 8-2414(a), (e).
K.S.A. § 8-2414(f).
At trial, the court instructed the jury on the definition of a franchise agreement, as set forth in § 8-2401(w) of the KDMLA. In completing its verdict, the jury determined that the Dealer Agreement was not a franchise agreement under the KDMLA. Thus, judgment was entered for MAC on Utility Trailer's KDMLA claim. Utility Trailer now asserts that the jury's verdict on this claim cannot be supported because, as a matter of law, the Dealer Agreement satisfied the KDMLA definition of a franchise agreement.
Instruction No. 17.
As an initial matter, even assuming for the sake of discussion that the KDMLA provides a private right of action, the court must address whether Utility Trailer's claim under § 8-2414 is properly before this court given that Utility Trailer failed to pursue its administrative remedies before bringing suit. Under Kansas law, if a plaintiff has an administrative remedy for its claim of damages, that remedy "must ordinarily be exhausted before a litigant may resort to the courts." Only if "no administrative remedy is available or if it is inadequate to address the problem in issue," is exhaustion not required. Where a litigant has failed to exhaust available administrative remedies, the court lacks subject matter jurisdiction over the matter.
There is not any caselaw that directly addresses whether a private right of action exists under the KDMLA. In general, Kansas courts apply a two-part test to determine whether a statute creates a private right of action. Pullen v. West, 92 P.3d 584, 594 (Kan. 2004). First, the plaintiff must show the statute was designed to protect a specific group of people, rather than the public at large. Id. Second, the legislative history of the statute must indicate that the legislature intended to create a private right of action. Id. Under the first part of the test, the parties disagree over whether the KDMLA was designed to protect the general public or only vehicle dealers operating under franchise agreements with vehicle manufacturers. The act's "declaration of public policy" section, if anything, muddies this issue, rather than clarifies it — on the one hand, it states that it is the "policy of this state to provide for fair and impartial regulation of those persons engaged in manufacturing, distributing or selling vehicles;" on the other hand, it states it is the further "policy of this state to protect the public interest in the purchase and trade of vehicles." K.S.A. § 8-2402. Under the second part of the test, the parties have presented no evidence of the legislative history of the KDMLA. Rather, they each cite different sections of the act that could be read, alternately, as creating only injunctive judicial relief (but not civil damages), see K.S.A. § 8-2413(a), and as creating permissive (but not required) relief by the director of motor vehicles with a right of appeal to the courts, see K.S.A. §§ 8-2404 8-2411. Because, as discussed below, the court finds that Utility Trailer's KDMLA claim must be dismissed for failure to exhaust administrative remedies, the court need not enter the thicket of unraveling these issues to determine whether a private right of action exists under the KDMLA.
W. Kan. Exp., Inc. v. Dugan Truck Line, Inc., 720 P.2d 1132, 1134 (Kan. Ct. App. 1986); see also Sandlin v. Roche Labs., Inc., 991 P.2d 883, 888 (Kan. 1999) ("The doctrine of exhaustion of administrative remedies dictates that a remedy before an administrative agency provided by law must be sought and completed before courts will act.") (internal quotations and citations omitted).
W. Kan. Exp., 720 P.2d at 1134.
Nichols v. Kan. Political Action Comm., 11 P.3d 1134, 1138 (Kan. 2000); see also Sandlin, 991 P.2d at 889 (holding that district court was without jurisdiction to consider an employment discrimination case where plaintiff did not exhaust administrative remedies).
Section 8-2414 specifically provides that a vehicle dealer may file a complaint with the Kansas Director of Motor Vehicles challenging the termination of a franchise agreement. It directs, "Upon a complaint being filed, the director shall promptly set the matter for public hearing, in accordance with K.S.A. § 8-2411 . . . for the purpose of determining whether there has been a violation of K.S.A. § 8-2410 [unfair termination of a franchise agreement] . . . or whether good cause exists for . . . termination." The referenced § 8-2411 states that the hearing "shall be conducted in accordance with the provisions of the Kansas administrative procedure act," with the right of appeal "to the district court in accordance with the provisions of the act for judicial review and civil enforcement of agency actions."
K.S.A § 8-2414(b).
Id.
K.S.A. § 8-2411(a), (c).
Utility Trailer ignored the administrative remedies specifically set forth in § 8-2414, failed to file a complaint with the Director, and instead asserted its KDMLA claim for the first time in this lawsuit. Because Utility Trailer did not exhaust its administrative remedies before bringing this claim, the court has no jurisdiction to consider it. Although it is unfortunate the court did not address the matter of its jurisdiction prior to trial, "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Accordingly, the court dismisses Utility Trailer's KDMLA claim and denies Utility Trailer's motion for judgment as a matter of law.
Although Utility Trailer did file an administrative complaint after receiving the (later-revoked) April 14, 2008, termination letter, it appears that the parties voluntarily dismissed that administrative action. It is uncontroverted that Utility Trailer failed to file any complaint with the Director of Motor Vehicles after receiving the October 30, 2009, termination letter. There is no question that Utility Trailer's KDMLA claim is not an appeal of an administrative decision.
The court notes that Doonan Trailer, on which Utility Trailer so heavily relies, did not address the exhaustion of administrative remedies requirement.
The issue of exhaustion of administrative remedies and the court's jurisdiction has never been raised by the parties. Indeed, the first time that even the applicability of the KDMLA was raised was by defendants in a motion in limine. There, the court ruled that the issues raised by defendants were "not evidentiary issues appropriate for resolution by an order in limine," and the court encouraged defendants to raise the matter as a motion for judgment as a matter of law. Doc. 175 at 5. It was not until the court had an opportunity to undertake a detailed analysis of the KDMLA post-trial that the court recognized the potential jurisdictional barrier.
Fed.R.Civ.P. 12(h)(3).
Were the court to address this matter on its merits, the result, as a practical matter, would be the same. The KDMLA defines a franchise agreement as a contract by which (1) one party is granted the right to sell goods "under a marketing plan or system prescribed in substantial part by the other party" and (2) "the operation of the grantee's business pursuant to such agreement is substantially associated with the grantor's trademark, service mark, trade name, logotype, advertising, or other commercial symbol designating the grantor." K.S.A. § 8-2401(w). The jury found that the Dealer Agreement did not satisfy these elements of a franchise agreement. The evidence supports the jury's finding. Contrary to Utility Trailer's suggestion, the Dealer Agreement does not by its terms set out a marketing system prescribed in substantial part by MAC, nor does it dictate that Utility Trailer's business be substantially associated with the MAC logo or name.
B. Defendants' Discovery Violation
Utility Trailer next argues that it is entitled to a new trial on its claims of breach of contract against MAC and tortious interference with contract against Summit. The sole basis of Utility Trailer's argument is defendants' failure to produce during discovery the letter from MAC that Summit submitted with its application for a Missouri motor vehicle dealer license. The (undisclosed) letter Summit submitted is dated July 15, 2008, and is addressed to Ryan Eidsness of Transwest Trailers, LLC, and Summit Truck Equipment, LLC. It can be read to grant both entities the non-exclusive license and right to sell MAC products. The letter includes a signature block for Philip Bortz, MAC's vice president of sales and marketing, but it is unsigned.
Trial Exh. 300.
Instead of the letter that Summit submitted with its license application, defendants produced during discovery a letter that is similar in all respects except that it does not reference Summit — it is addressed to Ryan Eidsness solely of Transwest Trailers, LLC, and only grants a license and right to sell MAC products to Transwest Trailers, LLC.
Trial Exh. 209.
Utility Trailer argues it was prejudiced by defendants' disclosure of the wrong letter because defendants took the position during trial that the submitted letter, because it was unsigned, did not constitute an agreement between MAC and Summit authorizing Summit as a MAC dealer. Utility Trailer notes that the jury presented two questions to the court asking what weight to give unsigned letters; one of the questions specifically referenced Exhibit 300, the letter submitted by Summit to the state of Missouri. According to Utility Trailer, "[h]ad the document been produced during discovery, it would have been the subject of deposition questioning of Bortz to establish that the letter was his, had been signed or approved by him, and/or authorized by him on behalf of MAC to be used accordingly by Summit." Utility Trailer further asserts, without any legal support, that the court "erred in declining to instruct the jury, in response to the jury's questions, that the same weight should be given to all exhibits, whether signed or unsigned."
Doc. 248, Attachment 5 (jury questions).
Doc. 252 at 6. Despite Utility Trailer's suggestions to the contrary, nothing suggests that Mr. Bortz signed any version of the letter. The two versions of the letter before the court are identical in the fact that neither is signed. Thus, Utility Trailer's arguments that defendants should have "produced a signed copy of the letter" and that the court "should order a new trial at which there will be no doubt that the Bortz letter was authorized and signed by Bortz," lack credence.
Id. at 7.
The misconduct of counsel or a party in failing to produce a requested document prior to trial justifies a new trial if that misconduct prejudiced the adverse party. "A showing of prejudice, however, is essential." "A new trial is not to be granted simply as a punitive measure to punish the misconduct of counsel."
Ryder v. City of Topeka, 814 F.2d 1412, 1424 (10th Cir. 1987).
Id.
Id. at 1425.
The court agrees with Utility Trailer that the "Summit" version of the subject document should have been produced by defendants. But Utility Trailer has not established prejudice from the non-disclosure. First, as conceded by Utility Trailer's counsel, he had obtained a copy of the letter submitted by Summit with its application directly from the Missouri Department of Revenue weeks before trial began. Thus, Utility Trailer had sufficient time to file a motion seeking to reopen the deposition of Mr. Bortz or seeking to limit the use of the document pursuant to Fed.R.Civ.P. 37(c)(1). However, Utility Trailer failed to raise the issue of the nondisclosure prior to trial.
Second, Utility Trailer certainly could have sought to call Mr. Bortz as an in-person witness at trial and attempted to establish that the letter had been approved or authorized by him on behalf of MAC. Utility Trailer chose not to do so. Similarly, Utility Trailer could have questioned Mr. Conny, the president of MAC, about the letter when it called him during its case-in-chief. Again, Utility Trailer did not do so. In short, despite Utility Trailer's knowledge weeks before trial of the document submitted with Summit's application (and the non-disclosure of such document by defendants), Utility Trailer made no timely attempt to explore the circumstances surrounding the subject letter either before or during trial. There is simply no evidence that Utility Trailer was prejudiced by the nondisclosure.
See Ryder, 814 F.2d at 1426 (upholding the denial of a motion for new trial where a document was not disclosed until trial; finding no prejudice because the moving party could have recalled witnesses to testify about the document).
To the extent Utility Trailer is arguing that it is entitled to a new trial because the court declined to instruct the jury, in response to their questions, "that signed and unsigned letters should be afforded equal weight," the argument is flatly rejected. Utility Trailer has presented no support for the proposition that the law assigns equal weight to signed and unsigned letters. To the contrary, caselaw indicates that it is for the jury to determine the weight to give unsigned documents.
Doc. 257 at 4.
See United Intern. Holdings, Inc., 210 F.3d 1207, 1227-28 (10th Cir. 2000); Day Adver., Inc. v. Parker, 39 F.3d 1191, 1994 WL 596484, at *4 (10th Cir. Nov. 1, 1994); see also Welch v. Workman, 607 F.3d 674, 705 (10th Cir. 2010) ("[T]he jury must be the body that decides the weight or effect given to the evidence.").
Utility Trailer's request for a new trial on its claims of breach of contract and tortious interference with contract is denied.
V. Conclusion and Order
In consideration of the foregoing,
IT IS HEREBY ORDERED:
1. Defendants' renewed motion for judgment as a matter of law (doc. 250) is granted. Judgment shall be entered in favor of MAC and Summit on Utility Trailer's tortious interference with a prospective business expectancy or relationship claims.
2. Utility Trailer's motion for judgment as a matter of law and/or new trial (doc. 252) is denied.
IT IS SO ORDERED.