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Goldberg v. 401 North Wabash Venture LLC

United States District Court, Seventh Circuit

May 21, 2013

JACQUELINE GOLDBERG, Plaintiff,
v.
401 NORTH WABASH VENTURE LLC and TRUMP CHICAGO MANAGING MEMBER LLC, Defendants.

DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW ON PLAINTIFF'S CLAIM OF EMOTIONAL DAMAGES AND ALTERNATIVE MOTION TO BAR PLAINTIFF'S ATTORNEYS FROM SUGGESTING TO THE JURY A SPECIFIC AWARD OF EMOTIONAL DAMAGES

AMY J. ST. EVE, District Judge.

Defendants 401 North Wabash Venture LLC and Trump Chicago Managing Member LLC, by and through their attorneys, pursuant to Federal Rule of Civil Procedure 50(a), respectfully submit this Motion for Judgment as a Matter of Law on Plaintiff's Claim of Emotional Damages and Alternative Motion to Bar Plaintiff's Attorneys From Suggesting to the Jury a Specific Award of Emotional Damages.

LEGAL STANDARD

Judgment as a matter of law is appropriate when "a party has been fully heard on an issue... [and] a reasonable jury would not have a legally sufficient evidentiary basis to find for that party on that issue." Fed.R.Civ.P. 50(a)(1). "In other words, the question is simply whether the evidence as a whole, when combined with all reasonable inferences permissibly drawn from that evidence, is sufficient to allow a reasonable jury to find in favor of the plaintiff. [A] mere scintilla' of evidence, however, will not suffice." Hall v. Forest River, Inc. , 536 F.3d 615, 619 (7th Cir. 2008) (citations omitted).

ARGUMENT

Plaintiff's claims under the Illinois Consumer Fraud Act (the "Fraud Act") and the Interstate Land Sales Full Disclosure Act (the "Land Sales Act") both seek damages for "emotional distress, aggravation, delays, [and] inconveniences, proximately caused by deceptive and/or unfair practices" (collectively, "emotional damages"). (Dkt. No. 268, Pls.' Itemiz. of Damages.) Yet, at trial, Plaintiff presented no evidence that would support an award of emotional damages under establish Seventh Circuit law.

Plaintiff's only evidence that could arguably relate to her emotional damages claim comes from her own self-serving testimony and the testimony of her agent Terry Vogue. Specifically, Plaintiff testified as follows:

Q. Jackie, how did you feel when you first heard that Ms. Binosi had confirmed that these things were being removed [from the common elements]?
A. I thought I was in never-never land.
Q. What do you mean?
A. We have - we have - an agreement. All of a sudden, it's all been turned topsy-turvy. (5/20/13 Tr. at 1429:1-7.)
* * *
Q. Can you tell the ladies and gentlemen of the jury how, if at all, you know, this litigation has affected you?
A. I've been angry. I have been - felt like I have been - conned. I have worried about what the solutions - what solutions - I could make. It has affected my - just, now, I have to worry about whether my husband's caregivers are there on time, so I can come and spend all day here; and, how is he - I mean, there's a lot of worry going into something like this. I didn't worry as much sometimes as I did at others, and I tried not to be angry about it. (5/20/13 Tr. at 1443:7-17.)

In a last-ditch effort to save Plaintiff's emotional damages claim, Ms. Vogue, testified that she "observed" Plaintiff as feeling "upset, " "disturbed, " "stressed, " and "defrauded" after she reviewed the Fourth Amendment. She also noted that Plaintiff is not outward about her feelings. No other evidence or testimony pertaining to emotional damages was offered.

As described in Part I below, these vague and conclusory statements fail to support a claim for emotional damages as a matter of law for at least four reasons. First, no reasonable jury could find that the above-described testimony supports an award of emotional damages with "reasonable certainty" and satisfies the Seventh Circuit's "strict standard for a finding of emotional damage." Second, Plaintiff's testimony describing how the litigation has affected her cannot, as a matter of law, support a claim for emotional damages. Third, emotional damages are not available to Plaintiff under the Land Sales Act. Fourth, Plaintiff cannot recover emotional damages under the Fraud Act because she has not suffered any actual injury.

In Part II below, Defendants demonstrate that - because Plaintiff is not entitled to an award of emotional damages - all remaining claims are equitable. Accordingly, she is not entitled to a trial by jury.

Finally, if the Court nonetheless allows Plaintiff to pursue emotional damages on one or both of her claims, then Part III below seek to bar Plaintiff from suggesting to the jury a specific award of emotional damages. At the very least, Plaintiff should not be permitted to ask the jury to award $500, 000 - an amount that is patently unreasonable.

I. PLAINTIFF CANNOT RECOVER EMOTIONAL DAMAGES

A. No Reasonable Jury Could Find That Plaintiff's Testimony Satisfies The Seventh Circuit's "Strict Standard For ...


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