1292 David B. Still v. CORNERSTONE CAPITAL ADVISORS, INC., Third-Party

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 04-1196/1292
DAVID B. STILL,
Appellant, No. 04-1196
v.
REGULUS GROUP LLC; LIBERTY PARTNERS, LP;
LIBERTY CAPITAL PARTNERS;
LIBERTY PARTNERS HOLDINGS 12, L.L.C.;
G. MICHAEL STAKIAS; PETER E. BENNETT;
CARL RING; PAUL HUSTON; LESTER E. STOCKEL, JR.;
RICHARD LONG; KATHY HAMBURGER; JEFFREY THEISEN
REGULUS GROUP LLC,
Defendant/Third-Party Plaintiff
v.
CORNERSTONE CAPITAL ADVISORS, INC.,
Third-Party Defendant
DAVID B. STILL
v.
REGULUS GROUP LLC; LIBERTY PARTNERS LP;
LIBERTY CAPITAL PARTNERS, INC;
LIBERTY PARTNERS HOLDINGS 12, L.L.C.;
G. MICHAEL STAKIAS; PETER E. BENNETT;

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CARL RING; PAUL HUSTON; LESTER E. STOCKEL;
RICHARD LONG; KATHY HAMBURGER; JEFFREY THEISEN
v.
CORNERSTONE CAPITAL ADVISORS, INC.
Third Party Defendant
Regulus Group, LLC,
Appellant, No. 04-1292
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 00-cv-06053)
District Court Judge: Honorable Robert F. Kelly
Submitted Under Third Circuit LAR 34.1(a)
January 18, 2005
Before: ALITO, M cKEE, and SMITH, Circuit Judges
(Opinion Filed: February 15, 2005)
OPINION OF THE COURT
PER CURIAM:
Because we write solely for the parties, we do not set forth the facts of this case.
David B. Still appeals a final judgment and several interlocutory orders of the District
Court. He asserts that the Court erred by (1) denying his motion for a new trial on one of

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1 Because we conclude that Still’s motion for a new trial was properly denied, we
need not address Regulus’s “conditional cross-appeal” challenging the District Court’s
denial of its motion for judgment as a matter of law. See United States v. Am. Ry.
Express Co., 265 U.S. 425, 435 (1924) (“[T]he appellee may, without taking a cross-
appeal, urge in support of a decree any matter appearing in the record . . . .”).
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his claims, (2) denying his motion for judgment as a matter of law on the same claim, (3)
awarding judgment as a matter of law to defendant Regulus Group LLC (“Regulus”) on
another claim, and (4) denying one of his discovery motions. For the reasons that follow,
we affirm.1
I.
We exercise plenary review over an award of judgment as a matter of law. See
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997). Plenary review also
extends to any legal conclusion underlying the District Court’s decision to grant a motion
for reconsideration, though the decision itself lies within the sound discretion of the
Court. See Le v. Univ. of Pa., 321 F.3d 403, 405-06 (3d Cir. 2003). We review for abuse
of discretion both the denial of a motion for a new trial and the denial of a motion for
leave to amend a complaint. See Brennan v. Norton, 350 F.3d 399, 430 (3d Cir. 2003);
Douglas v. Owens, 50 F.3d 1226, 1235 (3d Cir. 1995).
II.
Still argues that no amendment to his pleading was necessary because his
complaint already stated a sufficient claim for relief under Pennsylvania’s Uniform
Commercial Code (the “UCC”). To meet Rule 8(a)’s liberal pleading requirements, a

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complaint need only contain a “short and plain statement of the claim” that “give[s] the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957). According to Still,
Count XX of his Second Amended Complaint sufficiently pled a claim under the UCC by
alleging that “(1) Regulus had taken Still’s shares, (2) the value of the shares exceeded
his debt to Regulus by millions of dollars, and (3) the relief demanded was the value of
his shares.” Still’s Reply Br. at 10. Count XXII “made similar allegations.” Id.
Still’s own paraphrase of the pleading reveals its deficiencies. His allegations do
not state a claim under the UCC because the UCC permits a secured creditor to seize
collateral even when its value exceeds the debtor’s obligation. See 13 Pa. Cons. Stat.
Ann. §§ 9503(a), 9504(a)-(b) (West 2001). What the UCC does not permit is the
commercially unreasonable disposition of collateral, see id. § 9504(c), but Counts XX and
XXII nowhere allege that Regulus disposed of his shares in a commercially unreasonable
manner. Furthermore, an accounting under the UCC would not permit Still to recover the
“value of his shares.” While that relief would be available if the shares were converted
(as Count XX alleges), § 9504 permits Still to recover at most the difference between the
value of his shares and the value of the outstanding debt. See id. § 9504(b). Because
Counts XX and XXII fail to state a claim for relief under the UCC and seek relief that the
UCC does not afford, they could not put a defendant on notice of a claim under the UCC.
Still next argues that Regulus consented to try the UCC claim. “When issues not

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raised by the pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.” Fed. R. Civ. P. 15(b).
The parties’ consent to try an issue is the sine qua non of a conforming amendment: “‘[I]f
the issue . . . has not been tried with the consent of the parties, then an amendment to
conform to the pleadings [sic] will not be permitted no matter when made.’” Douglas, 50
F.3d at 1236 (quoting 6A Charles A. W right et al., Federal Practice and Procedure
§ 1494, at 53 (1990) (Douglas Court’s emphasis)). In determining whether a party has
implicitly consented to try an issue, the court should consider “whether the parties
recognized that the unpleaded issue entered the case at trial, whether the evidence that
supports the unpleaded issue was introduced at trial without objection, and whether a
finding of trial by consent prejudiced the opposing party’s opportunity to respond.” Id.
(internal quotation marks omitted).
The record reveals no evidence of express consent. In fact, Regulus vociferously
objected to Still’s attempts to inject the UCC issue into the proceedings. See 329a, 457a-
58a, 521a, 524a-25a. Still argues that Regulus gave tacit consent by failing to object to
testimony relevant to the UCC issue, but most of the testimony Still cites was also
relevant to the conversion and wrongful seizure issues. See 431a, 487a, 528a-35a.
Ambiguously relevant evidence cannot support a claim of consent; the other party may
have acquiesced to the evidence only under the mistaken impression that it was being
offered on the properly pled issue. See Douglas, 50 F.3d at 1236. Still identifies but one

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2 Because we conclude that the District Court acted within its discretion when it
vacated its earlier order granting Still a new trial, we need not address whether the jury
instructions on the UCC issue were plainly erroneous or whether either party would have
been entitled to judgment as a matter of law on that issue.
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occasion on which Regulus failed to object to evidence that was relevant to the UCC
claim alone. See 535a-37a (testimony regarding “the reasonableness of the valuation
formula”). In light of Regulus’s many other objections, this isolated oversight cannot
imply consent to try the UCC issue.
The record also reveals that Regulus would have been prejudiced by an untimely
amendment. According to Regulus, it was denied an opportunity both to depose Still’s
expert on the issue of commercial reasonableness and to present its own expert. See, e.g.,
525a. The District Court agreed with Regulus, and Still’s arguments to the contrary do
not persuade us that this finding was clearly erroneous. We conclude that Regulus never
consented to try the UCC issue and that Still was properly denied leave to amend his
complaint to conform to the evidence. Since Still’s UCC claim was never sufficiently
pled, the District Court did not abuse its discretion in denying him a new trial on it.2
III.
The foregoing analysis moots Still’s remaining arguments. Since he cannot
recover his pledged shares or their equivalent value, a finding that those shares were
wrongfully diluted could not affect his rights. His motion to compel Regulus to produce
certain documents is also moot because the resolution of his UCC claim removes the last

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issue on which evidence would be discoverable. After carefully considering Still’s
arguments, we can find no error in the District Court’s orders. They are accordingly
affirmed.

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