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Financial Casualty & Surety, Inc. v. Bonino

United States District Court, D. New Jersey, Camden Vicinage

November 18, 2014

FINANCIAL CASUALTY & SURETY, INC., Plaintiff,
v.
JOHN BONINO and 007 BAIL BONDS, INC., Defendants.

MEMORANDUM OPINION [Docket No. 429, 435, 456, 462, 464, 465, 466, 467, 476].

RENÉE MARIE BUMB, District Judge.

This matter comes before the Court upon several post-trial motions filed by Plaintiff, Financial Casualty & Surety, Inc., ("FCS") [Docket Nos. 456 & 462], [1] Defendants John Bonino and 007 Bail Bonds, (the "007 Defendants"), [Docket Nos. 429, 435, 464, 465 & 467], [2] and Defendants Bail Group Management, LLC, James Mascola and Genevieve Steward, (the "BGM Defendants"). Prior to the start of trial, FCS settled with the BGM Defendants. After the completion of trial, the jury found that both John Bonino and 007 Bail Bonds had breached an implied agreement with Plaintiff; Plaintiff was awarded the premium on reported bonds of $3, 307.00, bond forfeiture judgments and consent judgments in the amount of $65, 280.00, and attorney's fees and expenses in the total amount of $127, 000 against Bonino only. [Docket No. 450].

The Court will address the parties' respective post-trial motions in turn.

1. 007 Defendants' Motion to Reinstate Cross-Claim

The 007 Defendants ask this Court to reinstate their cross-claim against the BGM Defendants as asserted in their answer filed on October 31, 2011. [Docket Nos. 429 & 467]. The 007 Defendants contend that the BGM Defendants were aware of the cross-claim, but "chose not to conduct any discovery in order to defend the claim." [Docket No. 429 at 3]. The 007 Defendants further contend that they "intended to preserve the cross-claim by including a mention of same in their portion of the Pretrial Order." Id. at 4. It is undisputed, however, that this cross-claim was never included in the final and operative version of the Joint Final Pretrial Order by the 007 Defendants. [See Docket No. 367].

Even assuming that this Court accepts the 007 Defendants' argument that the Plaintiff's superseding complaint does not impact the cross-claim asserted in their answer, they have provided no citations to the record to support their argument that the BGM Defendants "specifically consented on the record in open court to allowing the [cross-claim] to go forth." [Docket No. 434 at 7]. In addition, this Court cannot accept the 007 Defendants' argument that they "attempted to preserve [the cross-claim] for trial" by requesting inclusion in the pre-trial order.

The 007 Defendants' dilatory conduct with respect to the Joint Final Pretrial Order is well documented. [See Docket No. 475]. For example, the 007 Defendants, on several occasions, failed to comply with the Court's orders regarding pre-trial submissions. [See Docket No. 343, directing the 007 Defendants to show cause why sanctions should not be imposed for failure to comply with the Court's Order regarding the Joint Final Pretrial Order]. After lengthy proceedings, including a hearing on FCS's motion to strike the 007 Defendants' portion of the Final Pretrial Order for lack of participation in the drafting process, the Joint Final Pretrial Order was entered on February 10, 2014 and included no mention of the cross-claim despite ample opportunity for the 007 Defendants to include the same. [See Docket No. 367].

The law is clear that "a final pretrial order shall control the subsequent course of the action unless modified by subsequent order. The order following a final pretrial conference shall be modified only to prevent manifest injustice.'" Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1194 (3d Cir. 1987)(quoting Fed.R.Civ.P. 16(e)). The conduct of the 007 Defendants with respect to the formation of the Final Pretrial Order clearly does not warrant an amendment to prevent manifest injustice. Moreover, while the trial is now complete and any proceedings as to the cross-claim would necessarily be bifurcated, the Court finds that the subject of the cross-claim involves issues that would require discovery. The bond at issue involves an agreement with the Roche Insurance Company and a third party escrow agent, parties previously unknown to this Court, and arises pursuant to an agreement entirely unrelated to FCS. As such, this Court cannot find that manifest injustice requires that the cross-claim be permitted, and the Court will deny the 007 Defendants' motions.

2. 007 Defendants' Motion for Setoff

The 007 Defendants have moved for a setoff against the $168, 587 verdict, [Docket Nos. 435 & 464], arguing that they are entitled to a setoff because Plaintiff has entered into settlement agreements with other Defendants, who "shared liability for any damages owed...." [Docket No. 464 at 2]. As Plaintiff correctly points out, however, the 007 Defendants have provided this Court with no relevant factual or legal bases for this assertion - i.e., there is no evidence that there is an overlap between the damages awarded to FCS and the settlement with BGM, or any other Defendant. Without any evidence that the judgment against the 007 Defendants actually would result in a double recovery for the same liability, this Court must deny the motion for setoff.[3] Cf. Juzwin v. Amtorg Trading Corp., 705 F.Supp. 1053, 1063 (D.N.J. 1989), rev'd on other grounds, 900 F.2d 686 (3d Cir. 1990) ("A defendant in a civil action has a right to be protected against double recoveries... because overlapping damage awards violate that sense of fundamental fairness' which lies at the heart of constitutional due process.").

3. 007 Defendants' Motion Notwithstanding the Verdict[4]

The 007 Defendants have renewed their motion, previously denied by this Court [Docket No. 439], to dismiss the Plaintiff's complaint based upon the statute of frauds. [Docket No. 466]. The 007 Defendants contend that the agreement at issue is a surety agreement and, thus, must be in writing. The 007 Defendants, however, have set forth no arguments or law that persuade this Court that it should deviate from the reasoning set forth in its prior Opinion on this very issue. [See Docket No. 439]. Again, this Court has found that the agreement at issue is one for indemnification and, therefore, can be implied. [Docket No. 439 at 5]. In addition, to the extent this Court found, in the alternative, that the 007 Defendants have waived the statute of frauds defense, they present no arguments to refute that finding in their renewed motion. The motion is denied for the reasons previously set forth in this Court's prior Opinion.

4. 007 Defendants' Motion for a New Trial

The 007 Defendants have moved for a new trial pursuant to Federal Rule of Civil Procedure 59 [Docket No. 465]. Rule 59 states that a court may "grant a new trial on all or some of the issues... for any reason for which a new trial has heretofore been granted in an action at law in federal court...." Fed.R.Civ.P. 59(a). Although the language of Rule 59 does not cite specific grounds for a new trial, there are many reasons why a new trial may be warranted. The most commonly raised reasons are: there was prejudicial error of law, that the verdict is against the weight of the evidence, the verdict is too large or too small, there is newly discovered evidence, conduct of counsel or of the court has tainted the verdict, or there has been misconduct ...


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