ING Global v. United Parcel Service Oasis Supply Corporation 1 In the 2

13‐489‐cv
ING Global v. United Parcel Service Oasis Supply Corporation
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
August Term 2013 7
No. 13‐489‐cv 8
9
ING G LOBAL, 10
Plaintiff‐Counter‐Defendant‐Appellant, 11
12
v. 13
14
UNITED PARCEL SERVICE O ASIS SUPPLY CORPORATION , 15
Defendant‐Counter‐Claimant‐Appellee, 16
17
Bone Safety Signs, LLC, Doug Vollenweider, Michael Rose, James 18
Thompson, 19
Defendants. 20
________ 21
22
Appeal from the United States District Court 23
for the Southern District of New York. 24
No. 11‐CV‐5697 25
________ 26
27
ARGUED: DECEMBER 12, 2013 28
DECIDED: J UNE 30, 2014 29
________ 30
31
Before: POOLER , PARKER , and W ESLEY , Circuit Judges. 32
________ 33
34

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2 No. 13‐489‐cv
Appeal from an order of the United States District Court for 1
the Southern District of New York (Samuel Conti, Judge), 1 setting 2
aside on the ground of manifest injustice a verdict awarding 3
plaintiff, ING Global, attorney’s fees on breach of contract claims. 4
We hold that in light of defendant UPS’s failure to move pursuant to 5
Rule 50(a) and the existence in the record of evidentiary support for 6
the verdict, the district court erred in setting the verdict aside. We 7
also conclude that a new trial is not warranted. REVERSED and 8
REMANDED. 9
________ 10
J OHN J. ZEFUTIE, J R . (Justin S. Strochlic, Ugo 11
Colella, Anthony J. Laura, on the brief), Patton 12
Boggs LLP, Newark, New Jersey, for Plaintiff‐ 13
Counter‐Defendant‐Appellant, ING Global. 14
ROBERT E. K AELIN (Michael D. Goldfarb, on the 15
brief), Murtha Cullina LLP, Hartford, CT, for 16
Defendant‐Counter‐Claimant‐Appellee, United Parcel 17
Service Oasis Supply Corporation. 18
________ 19
B ARRINGTON D. PARKER , Circuit Judge: 20
In October 2012, following a six‐day trial, the jury returned a 21
verdict in favor of plaintiff, ING Global (“ING”), on its breach of 22
contract claims. The jury also awarded ING attorney’s fees, to be set 23
by the court, as permitted by Georgia law which governed the 24
contract. Despite its failure to have moved pursuant to Rule 50(a) 25
1 The Honorable Samuel Conti, United States District Judge for the United States District
Court for the Northern District of California, sitting by designation.

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3 No. 13‐489‐cv
for judgment as a matter of law prior to the submission of the case to 1
the jury, defendant, United Parcel Service Oasis Supply Corporation 2
(“UPS”), subsequently moved pursuant to Rule 59(e) to amend the 3
judgment to set aside the award of attorney’s fees or, alternatively, 4
for a new trial on the issue of attorney’s fees. The district court 5
concluded that because the verdict was without legal support, it 6
constituted manifest injustice and set aside the award of attorney’s 7
fees. UPS does not appeal from the jury’s verdict against it on the 8
breach of contract claims. 9
We hold that in light of UPS’s failure to have moved for relief 10
pursuant to Rule 50(a) and the existence of evidentiary support in 11
the record for the jury’s verdict, the district court erred in setting the 12
verdict aside. We also conclude that a new trial is not warranted. 13
Accordingly, we reverse the order granting UPS’s motion and 14
remand with instructions to reinstate the verdict and resolve ING’s 15
motion to set attorney’s fees. 16
I. BACKGROUND 17
The facts relevant to our decision are as follows. ING is a 18
small company that produces Reusable Network Containers 19
(“RNCs”), mesh bags used by UPS to consolidate numerous small 20
packages into a larger one to reduce the number of handlings 21
required by UPS’s sorting and transportation system. 22
In 2010 UPS selected ING as the winner of a bidding process 23
to become UPS’s primary supplier of new RNCs. UPS and ING 24
entered into contracts that contemplated an estimated volume of 1.2 25
million new RNCs over the three‐year term of the agreement. The 26

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4 No. 13‐489‐cv
contracts reserved to UPS the discretion to adjust the quantity or 1
timing of the order for new RNCs, and also provided that additional 2
quantities of new RNCs would be purchased according to an 3
annexed price schedule. 4
During the summer of 2011, UPS decided to purchase an 5
additional 624,629 new RNCs before the end of the year and, turning 6
to other suppliers, backed away from its contract with ING. In the 7
course of planning for the new order, the UPS commodity manager 8
responsible for RNCs acknowledged in internal emails that UPS had 9
“contracts in place” to cover the additional RNC’s and that UPS had 10
obligations under those contracts. However, in nearly simultaneous 11
emails to ING, he took the contrary position that the new order of 12
RNCs was separate from the existing contracts and that UPS had no 13
purchase obligations under its existing contracts with ING. 14
He ultimately treated the 2011 order as separate from the 15
existing contracts and invited several new vendors to submit bids. 16
ING objected, contending that UPS’s steps to rebid the order 17
breached their contracts. However, in early August 2011, UPS 18
awarded the contract for the additional RNCs to a competitor of ING 19
that had offered a lower price. 20
ING then sued UPS for breach of the contracts. ING also 21
alleged that UPS had acted in bad faith and sought to recover 22
attorney’s fees, as permitted under applicable Georgia law when a 23
party acts in bad faith in making or performing a contract. Ga. Code 24
Ann. § 13‐6‐11. 25

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5 No. 13‐489‐cv
As part of their pretrial submissions, the parties submitted 1
joint proposed jury instructions that explained the meaning of bad 2
faith under Georgia law: 3
Bad faith does not refer to bad faith in the prosecution 4
of this litigation, but rather to the acts of UPS in dealing 5
with ING prior to ING’s filing of this lawsuit. Bad faith 6
means a frivolous and unfounded denial of liability. If 7
you find that UPS’s actions before ING filed this lawsuit 8
were frivolous and unfounded, then you must find that 9
UPS acted in bad faith and award ING its attorney’s 10
fees. On the other hand, if you find that UPS had any 11
reasonable ground to contest ING’s breach of contract 12
claim, then you must find there is not bad faith on the 13
part of UPS and not award ING its attorneys’ [sic] fees. 14
Simultaneously, UPS filed a motion in limine to preclude the 15
introduction at trial of evidence of bad faith or of attorney’s 16
fees on the ground that, as a matter of law, it had a 17
“reasonable ground” to contest ING’s claims.2 UPS’s motion 18
was denied and ING’s claims proceeded to trial, during which 19
it was permitted to present its evidence of bad faith which 20
centered primarily around the conflicting emails and the 21
denials by UPS that its contracts with ING obligated it to 22
purchase additional RNC’s from ING rather than competitors. 23
During the proceedings, UPS and ING each submitted 24
proposed jury instructions that included a definition of bad 25
faith substantively identical to the version submitted before 26
2 UPS made a cursory pretrial objection to the jury instruction on the same grounds,
incorporating by reference the argument from its motion in limine.

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6 No. 13‐489‐cv
trial, except that ING objected to the inclusion of the 1
“reasonable ground” defense in the jury instructions. The 2
district court overruled that objection, adopted UPS’s 3
proposed instruction that included the “reasonable ground” 4
defense with only minor non‐substantive changes, and 5
delivered it to the jury. UPS did not move pursuant to Rule 50 6
to challenge the sufficiency of ING’s evidence of bad faith nor 7
did it move for judgment as a matter of law on the basis that 8
the“reasonable ground” defense precluded an award of 9
attorney’s fees. 10
Subsequently, the jury returned a verdict in favor of ING on 11
the breach of contract claim, awarding it approximately $1.7 million 12
in damages, which is not contested on this appeal. The jury also 13
found that ING was entitled to an award of attorney’s fees, which 14
meant that the jury had found that UPS had acted in bad faith. 15
Following the verdict and the entry of judgment, ING moved 16
to set the amount of attorney’s fees and UPS cross‐moved, pursuant 17
to Rule 59, to amend the judgment by setting aside the award of 18
attorney’s fees or, in the alternative, for a new trial on fees on the 19
ground that the verdict awarding them was against the weight of the 20
evidence. In its motion, UPS raised for the first time new challenges 21
to the court’s charge on bad faith. UPS contended that Georgia law 22
recognizes two distinct, mutually exclusive theories of bad faith; the 23
“frivolous and unfounded denial of liability” theory which ING had 24
argued and presented to the jury, and a separate “sinister motive” 25
theory, involving “dishonest purpose,” “conscious doing of wrong,” 26
or a “breach of known duty through some motive of interest or ill 27

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7 No. 13‐489‐cv
will.” Special App’x 17. UPS contended that under the former (but 1
not the latter) theory a party with a “reasonable defense” to a claim 2
cannot be found to have acted in bad faith and that it had such a 3
defense. 4
Notwithstanding that (1) the court had delivered the charge 5
on this issue that UPS had requested; (2) UPS had failed to object to 6
the charge under Rule 51; and (3) UPS had not argued that it was 7
entitled to judgment as a matter of law under Rule 50(a), the district 8
court accepted UPS’s interpretation of Georgia law. The district 9
court concluded that the “frivolous and unfounded denial of 10
liability” theory did not apply because it was limited to cases in 11
which one party refused to pay the other. After reviewing the 12
evidence, the court concluded that UPS had reasonable, 13
nonfrivolous defenses. Even though it had not instructed the jury on 14
the “sinister motive” theory of bad faith, the district court analyzed 15
the case under that theory and concluded that ING’s claim could not 16
succeed under that alternative. 17
Because UPS was seeking to have the jury’s award of 18
attorney’s fees set aside and to have judgment entered in its favor on 19
the issue, the district court concluded that UPS was “effectively” 20
moving under Rule 50(b) for judgment as a matter of law, 21
notwithstanding both the verdict and its failure to make an earlier 22
motion as required under Rule 50(a). The court then held that the 23
jury’s finding on fees was “clearly erroneous” and concluded that 24
“to prevent manifest injustice,” it was required to set aside the 25
award of attorney’s fees or grant a new trial on fees. After 26
reweighing the evidence, the district court concluded that a new trial 27

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8 No. 13‐489‐cv
could not result in a verdict in favor of ING. The court then set aside 1
the award of attorney’s fees, effectively granting UPS judgment as a 2
matter of law on the issue. This appeal followed. 3
II. DISCUSSION 4
A. Legal Standards 5
Rule 59(e) allows a district court “to alter or amend a 6
judgment.” Fed. R. Civ. P. 59(e). We have explained that under the 7
rule “district courts may alter or amend judgment to correct a clear 8
error of law or prevent manifest injustice,” that the rule “covers a 9
broad range of motions,” and that “the only real limitation on the 10
type of the motion permitted is that it must request a substantive 11
alteration of the judgment, not merely the correction of a clerical 12
error, or relief of a type wholly collateral to the judgment.” Schwartz 13
v. Liberty Mut. Ins. Co., 539 F.3d 135, 153 (2d Cir. 2008). 14
Here, however, UPS sought relief pursuant to Rule 59(e) that 15
was substantively identical to judgment as a matter of law under 16
Rule 50, as it sought to have the jury’s verdict on attorney’s fees set 17
aside and to have judgment entered in its favor on that issue. 18
Notwithstanding the “broad range of motions” available under Rule 19
59(e), and the absence of a “real limitation” on the type of motion 20
permitted, we do not believe that the Rule permits a party to obtain 21
judgment as a matter of law under Rule 59(e) after failing to comply 22
with the carefully crafted structure and standards of Rules 50 and 23
51.3 A Rule 50 motion is intended to “inform[] the opposing party of 24
3 In, Schwartz, 539 F.3d 132, the case UPS did cite for the proposition that judgment as a
matter of law is available pursuant to Rule 59(e) following the entry of judgment, the district
court granted a Rule 59(e) motion concerning a question of law that was presented for the

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9 No. 13‐489‐cv
the challenge to the sufficiency of the evidence and afford[] a clear 1
opportunity to provide additional evidence that may be available.” 2
Fed. R. Civ. P. 50 advisory committee’s note to the 2006 3
amendments; see also Lore v. City of Syracuse, 670 F.3d 127, 152‐53 (2d 4
Cir. 2012) (citing the advisory committee’s note and discussing the 5
purpose of Rule 50 motions). Rule 51 requires parties to articulate 6
and lodge their objections to jury charges before they are delivered 7
so that “the trial court [will have] an opportunity to cure any defects 8
in the instructions before sending the jury to deliberate.” Jacques v. 9
DiMarzio, Inc., 386 F.3d 192, 200 (2d Cir. 2004). Permitting a party 10
out of compliance with Rules 50 and 51 to prevail under Rule 59(e) 11
would render those Rules, which are basic to the conduct of federal 12
trials, essentially superfluous. We are not inclined to endorse such a 13
result except perhaps in unusually egregious circumstances, which 14
are not presented in this case. 15
Motions under Rule 59 to alter or amend the judgment, or for 16
a new trial, are normally reviewed for abuse of discretion. See Baker 17
v. Dorfman, 239 F.3d 415, 427 (2d Cir. 2000). However, because UPS 18
was effectively seeking judgment as a matter of law and because the 19
district court granted that relief, we will treat UPS’s motion to have 20
the attorney’s fees verdict set aside as one for judgment as a matter 21
of law pursuant to Rule 50. Accordingly, we will review the district 22
court’s decision de novo and apply the normal Rule 50 standards. See 23
Velez v. City of New York, 730 F.3d 128, 134 (2d Cir. 2013). We will 24
consider UPS’s alternative request for a new trial under the abuse of 25
first time by the jury’s response to a special interrogatory on the verdict form. The parties
had not had the opportunity to address the issue earlier and, thus, could not have been
expected to comply with Rule 50.

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10 No. 13‐489‐cv
discretion standard normally applicable to such motions. See 1
Patrolmen’s Benevolent Ass’n. of City of New York v. City of New York, 2
310 F.3d 43, 50, 54 (2d Cir. 2002) (reviewing Rule 50 motion de novo 3
and Rule 59(a) motion for abuse of discretion where party moved 4
under both rules). 5
Under Rule 50(a), a motion for judgment as a matter of law 6
must first be made before the case is submitted to the jury, and 7
renewed following the verdict pursuant to Rule 50(b). The law is 8
pellucid that a party’s failure to move under Rule 50(a) has 9
consequences. If that party later moves under Rule 50(b), the 10
standard for granting judgment as a matter of law is elevated, and 11
the motion may not properly be granted by the district court, or 12
upheld on appeal, except to prevent manifest injustice. See Lore, 670 13
F.3d at 153. Manifest injustice exists where a jury’s verdict is wholly 14
without legal support. See Rothstein v. Carriere, 373 F.3d 275, 291 (2d 15
Cir. 2004); Pahuta v. Massey‐Ferguson, Inc., 170 F.3d 125, 129 (2d Cir. 16
1999); cf. Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) 17
(“Rule 59(e) permits a court to alter or amend a judgment, but it 18
‘may not be used to relitigate old matters, or to raise arguments or 19
present evidence that could have been raised prior to the entry of 20
judgment.’” (quoting 11 C. Wright & A. Miller, Federal Practice and 21
Procedure § 2810.1, pp. 127–128 (2d ed. 1995))). 22
When evaluating a motion under Rule 50, courts are required 23
to “consider the evidence in the light most favorable to the party 24
against whom the motion was made and to give that party the 25
benefit of all reasonable inferences that the jury might have drawn in 26
[its] favor from the evidence.” Tolbert v. Queens Coll., 242 F.3d 58, 70 27

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11 No. 13‐489‐cv
(2d Cir. 2001). “The court cannot assess the weight of conflicting 1
evidence, pass on the credibility of the witnesses, or substitute its 2
judgment for that of the jury,” and “must disregard all evidence 3
favorable to the moving party that the jury is not required to 4
believe.” Id. 5
When considering a motion for a new trial under Rule 59(a) on 6
the ground that the jury’s verdict is against the weight of the 7
evidence, our cases “teach [that a] high degree of deference [is] 8
accorded to the jury’s evaluation of witness credibility, and that jury 9
verdicts should be disturbed with great infrequency.” Raedle v. 10
Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012). 11
B. Manifest Injustice 12
The jury instructions on Georgia law that are at the center of 13
UPS’s appeal were substantively identical to the ones it submitted 14
and which were delivered without objection from UPS. There is no 15
dispute that the instructions were an accurate statement of Georgia 16
law on the meaning of bad faith. Moreover, the instructions 17
included the “reasonable ground” defense that UPS asserted in its 18
motion in limine and in its post‐judgment motion. For these reasons, 19
it is clear to us that the jury instructions were not “wholly without 20
legal support.” Rothstein, 373 F.3d at 291. 21
At no point prior to its post‐judgment motion had UPS raised 22
its concerns about the jury instructions on bad faith, or articulated 23
to the district court its two theories of bad faith under Georgia law. 24
UPS was undoubtedly aware of the “reasonable ground” defense, as 25
it was the subject of a pretrial in limine motion and of proposed jury 26

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12 No. 13‐489‐cv
instructions. However, UPS failed to preserve its contention that 1
reasonable grounds existed as a matter of law because it did not 2
move under Rule 50(a), nor did it object under Rule 51 to the court’s 3
charge on “reasonable grounds.” Thus, UPS has waived any 4
argument on these grounds absent “manifest injustice.” 5
We see no such injustice. The jury was properly instructed 6
that a“reasonable ground” to contest a claim was a defense to a 7
finding of bad faith, but rejected UPS’s evidence and arguments on 8
that point, as it was entitled to do. The contracts provided that 9
“[a]dditional quantities” of new RNCs “will be purchased at the 10
identified pricing in this Price Schedule,” and the UPS commodity 11
manager acknowledged in internal emails that UPS had “contracts 12
in place” to cover the purchase of the additional RNCs. At the same 13
time, evidence the jury was entitled to credit also showed that he 14
took directly opposite positions in nearly simultaneous emails to 15
ING and ultimately sought and secured new bids from ING’s 16
competitors whose prices undercut those in ING’s contract. 17
Considering this evidence in the light most favorable to ING, 18
and giving ING the benefit of all reasonable inferences that the jury 19
might have drawn in its favor, we have little trouble concluding that 20
a jury, though not compelled to do so, could have found that UPS 21
acted in bad faith. Under these circumstances, we see no injustice 22
and certainly no manifest injustice. 23
Similarly, UPS’s arguments concerning the two theories of bad 24
faith it now contends exist under Georgia law do not change this 25
result. The arguments were, of course, forfeited by UPS’s failure 26
timely to raise them. As we have seen, the jury was charged that 27

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13 No. 13‐489‐cv
bad faith meant a “frivolous and unfounded denial of liability.” 1
This instruction was well grounded in Georgia case law. In post‐ 2
trial motion practice, UPS argues for the existence under Georgia 3
law of a specialized definition of “denial of liability” that limits it to 4
“refusal to pay” cases. According to UPS this case was not such a 5
case: It did not refuse to pay, it had no continuing obligation to 6
purchase additional RNC’s from ING and awarded contracts for 7
them to another entity. Because we see no meaningful distinction 8
between this conduct and a “denial of liability” or a “refusal to pay,” 9
we believe that the instruction that the court delivered adequately 10
conveyed UPS’s position to the jury. If UPS preferred a more 11
nuanced or specific definition, it was obligated to request one. In 12
any event, as we have noted, the evidence adduced at trial, viewed 13
in the light most favorably to ING, was sufficient for a reasonable 14
jury to have concluded that UPS engaged in an unfounded denial of 15
contractual liability. 16
C. New Trial 17
UPS moved in the alternative for a new trial pursuant to Rule 18
59(a) on the ground that the verdict was against the weight of the 19
evidence, and renews that motion on appeal. 20
Our precedent is clear that a “decision is against the weight of 21
the evidence if and only if the verdict is (1) seriously erroneous or (2) 22
a miscarriage of justice.” Raedle, 670 F.3d at 417‐18. Our cases teach 23
that a high degree of deference is accorded to the jury’s evaluation of 24
witness credibility, and that jury verdicts should be disturbed with 25
great infrequency. Id. Unlike on a Rule 50 motion, however, on a 26
Rule 59 motion the court “may weigh the evidence and the 27

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14 No. 13‐489‐cv
credibility of witnesses and need not view the evidence in the light 1
most favorable to the verdict winner.” Id. at 418. But when, as here, 2
“a verdict is predicated almost entirely on the jury’s assessments of 3
credibility, such a verdict generally should not be disturbed except 4
in an egregious case, to correct a seriously erroneous result, or to 5
prevent a miscarriage of justice.” Id. at 418‐19. This case is not such 6
a case. 7
The jury, after hearing testimony from witness from both 8
parties, concluded that UPS had acted in bad faith. As the district 9
court noted, there was evidence that would militate against such a 10
finding. But the jury was free to reject that evidence (as it 11
apparently did) and to conclude, based on other testimony, that UPS 12
acted in bad faith in its performance of the contracts. Given that this 13
finding turned to a large extent on the credibility of the witnesses 14
who testified before the jury, the finding and the verdict which 15
followed are particularly ill‐suited to after‐the‐fact second guessing. 16
Our review of the record yields no basis on which to conclude that 17
the jury’s verdict was “egregious,” “seriously erroneous,” or “a 18
miscarriage of justice.” 19
CONCLUSION 20
We reverse the district court’s order setting aside the jury’s 21
award of attorney’s fees. We REVERSE the order denying ING’s 22
motion to set attorney’s fees, and we REMAND the case with 23
instructions to reinstate the jury’s verdict and resolve ING’s motion 24
for attorney’s fees. 25

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