OpenJurist

101 F3d 1393 Rachman Bag Company v. Liberty Mutual Insurance Company

101 F.3d 1393

RACHMAN BAG COMPANY, a partnership composed of Plains Bag
and Bagging Co., Inc., Plaintiff-Appellant,
v.
LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee.

No. 95-9273.

United States Court of Appeals, Second Circuit.

July 25, 1996.

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

1

Appearing for Appellant: Neal Factor, Factor & Shweky, New York, New York.

2

Appearing for Appellee: Kimberly S. Penner, Sedgwick, Detert, Moran & Arnold, New York, New York.

3

Before WINTER and CABRANES, Circuit Judges, and MOTLEY, District Judge.*

4

This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York and was argued.

5

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby affirmed.

6

Rachman Bag Company appeals from an adverse jury verdict and from Judge Wolle's denial of its motion for judgment notwithstanding the verdict. We affirm for substantially the reasons stated by the district court. Rachman Bag Co. v. Liberty Mutual Ins. Co., 905 F.Supp. 95 (E.D.N.Y.1995). We add only a few words concerning Rachman's suggestion that we consider evidence not offered at trial.

7

On appeal, Rachman relies upon five documents that were neither offered nor admitted as evidence at trial (including unsigned affidavits). We may not, of course, consider evidence that was not before the district court, Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 999 n. 55 (2d Cir.), cert. denied, 423 U.S. 1018 (1975); Dictograph Prods. Co. v. Sonotone Corp., 231 F.2d 867 (2d Cir.) (per curiam), appeal dismissed per stip., 352 U.S. 883 (1956); see also 9 Moore's Federal Practice p 210.04, at 10-18 n. 5 (2d ed.1996), absent extraordinary circumstances, which do not exist here.

8

With regard to the exclusion of evidence regarding the Liberty Textile litigation, we find no abuse of discretion. Indeed, Rachman vigorously argues that three of the newly offered documents are essential to rebut "misleading" arguments made by Liberty Mutual in persuading the district court not to admit that evidence. In our view, Rachman's reliance on these documents underlines the fact that its proffer at trial was not supported by a sufficient showing of probative value.

9

As for Rachman's contention that there was no evidence to support various jury findings in the special verdict, Rachman is simply asking us to accept its version of events and to engage in impermissible appellate factfinding. Its arguments in this regard also crucially rely on evidence not offered at trial.

10

Appellee's motion for double costs and attorney's fees pursuant to Fed. R.App. P. 38 is denied.

11

We therefore affirm.

*

The Honorable Constance Baker Motley, United States District Judge for the Southern District of New York, sitting by designation