Ortiz-Del Valle v. The Nat'l Basketball Ass'n

• Decision Date: 01 August 1998
• Docket Number: Docket No. 99-7509,ORTIZ-DEL
• Citation: 190 F.3d 598
• Parties: (2nd Cir. 1999) SANDRAVALLE, Plaintiff-Appellee, v. THE NATIONAL BASKETBALL ASSOCIATION, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 598

190 F.3d 598 (2nd Cir. 1999)

SANDRA ORTIZ-DEL VALLE, Plaintiff-Appellee, v. THE NATIONAL BASKETBALL ASSOCIATION, Defendant-Appellant.

Docket No. 99-7509

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: August 10, 1999

Decided: September 02, 1999

Plaintiff-appellee moves to dismiss an appeal from an order of the United States District Court for the Southern District of New York (Sidney H. Stein, Judge) denying defendant-appellant's motion for judgment as a matter of law or a new trial conditioned upon the plaintiff accepting either a remittitur of the jury's damage award or a new trial on damages. Plaintiff-appellee rejected the remittitur and a new trial on damages is pending. We hold that we lack jurisdiction because the pending trial renders the district court order interlocutory and not immediately appealable.

Appeal dismissed.

HOWARD L. GANZ, Proskauer Rose L.L.P. New York, NY, for Defendant-Appellant.

PATRICIA M. FLANNERY, Thornton, Early & Naumes, L.L.P. Boston, MA, for Plaintiff-Appellee.

Before: CALABRESI, CABRANES and SOTOMAYOR, Circuit Judges.

PER CURIAM:

Plaintiff-appellee Sandra Ortiz-Del Valle moves to dismiss the appeal of defendant-appellee National Basketball Association ("NBA") from an order of the United States District Court for the Southern District of New York (Stein, Judge) denying the NBA's motion for judgment as a matter of law or alternatively for a new trial. The court conditioned that order on Ortiz-Del Valle electing either a remittitur or a new trial on damages. Ortiz-Del Valle opted for the new trial on damages and now argues that the NBA's appeal is interlocutory because that trial is pending in the district court. We agree that the order appealed from is not a final decision of the district court under 28 U.S.C. § 1291 and therefore dismiss for lack of appellate jurisdiction.

BACKGROUND

In April 1996, Ortiz-Del Valle brought this action for gender discrimination under Title VII, 42 U.S.C. § 2000e et seq., against her employer, the NBA. After a trial, the jury found the NBA liable for $100,000 in lost income, $750,000 in mental pain and emotional distress and $7,000,000 in punitive damages. The court entered judgment for Ortiz-Del Valle on April 29, 1998. The NBA then filed a timely motion for judgment as a matter of law under Rule 50 or, in the alternative, for a new trial under Rule 59. In an Opinion and Order dated April 2, 1999, the district court denied the motion conditioned upon Ortiz-Del Valle accepting either a new trial on the issue of damages or a remittitur reducing the lost income award to $76,926.20, the emotional distress award to $20,000 and the punitive damages award to $250,000. The court directed Ortiz-Del Valle to make her choice in writing within thirty days of the court's ruling. Within the specified time, Ortiz-Del Valle rejected the remittitur and opted for a new trial. Two days later, the NBA filed a notice of appeal of the order denying its motion for judgment as a matter of law or a new trial.

DISCUSSION

We have held that an order granting a new trial is interlocutory and not a final decision appealable under 28 U.S.C. § 1291. See Compagnie Nationale Air France v. Port of New York Authority, 427 F.2d 951, 954 (2d Cir. 1970). In Evans v. Calmar Steamship Co., 534 F.2d 519 (2d Cir. 1976), we clarified that this rule applies even where the order for a new trial is conditional and "accompanied by a provision for remittitur." Id. at 522. There, after the jury returned a $60,000 verdict in the plaintiff's favor, the district court denied the defendant's motion for judgment as a matter of law but ordered the plaintiff to decide between a new trial on the issue of damages or a remittitur reducing his recovery to $40,000. See id. at 520. The plaintiff initially opted for a new trial, but subsequently accepted the remittitur during jury selection. The plaintiff then attempted to appeal the order requiring either remittitur or a new trial. This Court dismissed the appeal, reasoning that neither trial had resulted in a final judgment, as the plaintiff initially elected a new trial but did not "see the second trial through." Id. at 522. Under these circumstances, the plaintiff's ultimate decision to accept the remittitur was akin to a settlement and waiver of appeal. See id.

It is immaterial whether it is the plaintiff or the defendant who attempts to appeal an order for a new trial after the rejection of a remittitur. It also makes no difference whether the new trial ordered by the district court includes liability or is limited to the issue of damages. A new trial solely on the issue of damages renders an order otherwise denying judgment as a matter of law non-final because the court has implicitly vacated the jury's damages award leaving the measure of damages undetermined. Cf. LeBoeuf, Lamb, Green & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 63-64 (2d Cir. July 22, 1999) (holding that "'where liability has been decided but the extent of damages remains undetermined, there is no final order'") (quoting Forcshner Group Inc. v. Arrow Trading Co., 124 F.3d 402, 410 (2d Cir. 1997)). Other circuits have agreed that an appeal in this situation is interlocutory. See Seltzner v. RDK Corp., 756 F.2d 51, 52 (7th Cir. 1985) ("[S]ince the plaintiff in this case refused to accept the remittitur, the order from which he is appealing is an order for a new trial, and is not appealable."); Herold v. Burlington N., Inc., 761 F.2d 1241, 1249 (8th Cir. 1985) ("An order granting a new trial after the refusal to accept a remittitur is an interlocutory order and not ordinarily appealable.") (citations omitted).

The NBA claims it is entitled to appeal under Rule 4(a)(4)(B)(ii) of the Federal Rules of Appellate Procedure which required it to file a notice of appeal from the order conditionally denying its motion. We disagree.

Rule 4(a)(4)(B)(ii) states:

A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A) [including a motion for judgment as a matter of law or a new trial], or a judgment altered or amended upon such a motion, must file a notice of appeal, or an amended notice of appeal - in compliance with Rule 3(c) - within the time prescribed by this Rule measured from the entry of the order disposing of the...