Free Motion for New Trial - District Court of Arizona - Arizona

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SABINUS A. MEGWA, ESQ. The Megwa Law Office 6811 South Central Avenue Phoenix, Arizona 85042 State Bar Number: 011266 Telephone (602) 243-6151 E-mail: [email protected] Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Nicholas Alozie, a single man,

) NO. CIV'02 2639 PHX SRB ) ) Plaintiff, ) ) vs. ) ) PLAINTIFF NICHOLAS ALOZIE'S ) MOTION FOR NEW TRIAL The Mills Corporation, a foreign corporation; ) MillsServices Corp., a foreign corporation; and ) ) (Before The Honorable Susan R. Bolton) Arizona Mills, L.L.C., a foreign corporation, ) ) Defendants, ) ) Plaintiff, Nicholas Alozie, by and through his undersigned counsel, hereby moves this Court for a new trial pursuant to Rule 59(a), Federal Rules of Civil Procedure. Plaintiff Nicholas Alozie is entitled to a new trial in this matter because the jury's verdict on economic and compensatory damages was against the substantial weight of the evidence. The jury's verdict on the issue of constructive eviction was also contrary to the weight of the evidence in view of the fact that the jury ruled that defendants discriminated against Plaintiff because of his race and or national origin. This Motion is supported by the following Memorandum of Points and Authorities, and the entire trial testimony in this matter, the trial exhibits and the entire record in this case.

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MEMORANDUM OF POINTS AND AUTHORITIES The standard for granting a new trial under Rule 59(a), federal Rules of Civil Procedure, differs substantially from the standard for granting judgment as a matter of law under Rule 50, Federal Rules of Civil Procedure. Under Rule 59(a), the Court has the discretion to grant new trial even if substantial evidence supports the jury's verdict. Oltz v. St. Peter's Comm. Hosp. 861 F.2d 1440 (9th Cir. 1988). A new trial may also be granted if the verdict is against the great weight of the evidence or is seriously erroneous. Equal Employment Opportunity Commission v. Pape Lift, Inc., 115 F. 3d 676 (9th Cir 1997). The Court may also order a new trial if the jury's verdict is inadequate. Dimick v. Schiedt, 293 U.S. 474, 55 S. Ct. 296, 79 L.Ed. 603(1935). The verdict in this case regarding Plaintiff's economic and compensatory damages is inadequate, seriously erroneous, and against the great weight of the evidence. As demonstrated below, the jury based its award of damages on factors other than the objective evidence that was before it. To avoid a miscarriage of justice, this Court should order a new trial on the issues of economic and compensatory damages and constructive eviction claim. A. The Jury's Failure to Award Economic Damages is Inconsistent With The Evidence. At the trial of this case, Plaintiff's expert Laura Leopardi testified that Plaintiff sustained economic damages in the amount of $96,000.00. Ms. Leopardi was not allowed by the Court testify regarding other categories of damages that Plaintiff sustained. For instance, the Court did not allow Ms. Leopardi to testify to Plaintiff's lost profits based on Plaintiff's income tax returns. Plaintiff's tax returns were timely disclosed and Defendants had the opportunity to question Plaintiff on the matter during his deposition as well as the opportunity to have their expert to review the tax returns. The evidence at trial clearly revealed that Plaintiff was not allowed to operate his business from January 15, 2001 through June 15, 2001. When Plaintiff returned to Arizona Mills, in June

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2001, he was unable to achieve the same level of sales that generated approximately $41,000.00 in the first 15 days of January 2001 before he closed his store. Based on the evidence at trial, the jury's failure to award Plaintiff his economic damages of at least $96,000.00 is contrary to the evidence at trial and obviously inadequate. B. The Jury's Award of $1.00 Nominal Damages is Inadequate and Inconsistent With The Evidence The jury in this case returned a verdict for Plaintiff on the issue of discrimination as a direct result of defendants' violation of Plaintiff's civil rights under 42 U.S.C. Section 1981 and 42 U.S.C Section 1982. In that regard, there is evidence that the jury believed that Defendants violated Plaintiff's civil rights which affected his business relationship with Defendants. The effect of the termination of that business relationship is that Plaintiff's business suffered. Plaintiff's testimony as supported with the financial losses on his income tax alone supports his testimony of mental distress and humiliation. There is certainly overwhelming evidence based on Plaintiff's testimony and the exhibits at trial to demonstrate compensatory damages sustained by Plaintiff. A $1.00 nominal damage for violation of one's civil rights is simply adding salt to injury, and undoubtedly inadequate by all measures. C. The Jury's Verdict for Defendants on the Issue of Constructive Eviction is Not Supported by the Evidence. The overwhelming evidence at the trial of this matter clearly demonstrated that Defendants intentionally retaliated against Plaintiff when he complained of discrimination. Plaintiff paid his April 2002 rent on or about the same time he paid his previous rent payments, yet he was singled out and harassed by Defendants for alleged failure to pay rent. Furthermore, the Defendants then claimed that the late payment notice was sent to others. The evidence at trial clearly illustrated that it was only Plaintiff that was singled out by April 12, 2002 for late rent payment notice. Plaintiff's employee was

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also harassed by Defendants' security employees. The totality of the circumstance of the Defendants' actions and omissions were such, that Plaintiff could no longer enjoy the benefits of the leased premises while the Defendants continued to violate his civil rights. Therefore, the jury's verdict in favor of Defendants on the constructive eviction claim is against the great weight of the evidence or is seriously erroneous. D. Conclusion In view of the foregoing reasons, Plaintiff hereby requests that this Court grant him a new trial on the issues of economic damages, compensatory damages and constructive eviction. RESPECTFULLY submitted this 6th day of September 2005.

THE MEGWA LAW OFFICE BY_/s/ Sabinus A. Megwa SABINUS A. MEGWA 6811 South Central Ave. Phoenix, Arizona 85042 Attorney for Plaintiff

Copy of the foregoing document mailed on this 6th_day of September 2005, to: Shelton L. Freeman, Esq. Michael A, Cordier, Esq. Lisa Ann Smith, Esq. DeConcini, McDonald, Yetwin & Lacy, P.C. 7310 North Sixteenth Street, Suite 330 Phoenix, AZ 85020 Attorneys for Defendants /s/ Sabinus A. Megwa

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