Case 3:17-cv-01342-VLB Document 166 Filed 03/26/20 Page 1 of 50
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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`GRADUATION SOLUTIONS, LLC
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`Plaintiff,
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`v.
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`ACADIMA, LLC and ALEXANDER
`LOUKAIDES,
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`Defendants.
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`No. 3:17-CV-1342 (VLB)
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`March 26, 2020
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`RULING ON MOTION FOR JUDGMENT AS A MATTER OF LAW [DKT. 147]
`AND MOTION FOR NEW TRIAL [DKT. 148]
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`On June 27, 2019, a
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`
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`jury found Defendants Alexander Loukaides
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`(“Loukaides”) and Acadima, LLC liable on Plaintiff Graduations Solutions, LLC’s
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`(“Graduation Solutions” or “Plaintiff”) claims of copyright infringement, trade-
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`dress
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`infringement, violation of Connecticut’s prohibition against unfair
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`competition, and unjust enrichment. The jury awarded Graduation Solutions $6.254
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`million dollars in compensatory and punitive damages, including $3.23 million
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`dollars from Loukaides. In the wake of that verdict, Loukaides moves for, in the
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`alternative, (1) renewed judgment as a matter of law [Dkt. 147], or (2) a new trial
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`[Dkt. 148]. Because of the overlap in relevant law and arguments, the Court
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`considers the motions together. After considering each party’s briefing, the Court
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`DENIES both motions for the reasons that follow.
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`I.
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`Background
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`1
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`Graduation Solutions designs and sells graduation apparel and accessories,
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`such as caps, gowns and tassels, through its website, graduationsource.com. [Dkt.
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`100 at 3]. Loukaides officially formed Acadima, LLC, also a graduation apparel
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`company, in 2015, but operations began prior to that date. [Dkt. 126 (Jury
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`Instructions) at 11].
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`In August 2017, Graduation Solutions filed a complaint against Acadima,
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`LLC and Loukaides for copyright infringement under 17 U.S.C. § 101, et seq.; trade
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`dress infringement under section 43(a) of the Lanham Act, 16 U.S.C. § 1125(a);
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`false advertising under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a);
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`violation of the Connecticut Unfair Trade Practices Act (“CUTPA”); violation of
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`Connecticut’s common law prohibition against unfair competition; and unjust
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`enrichment. [Dkt. 1 (Compl.)]. Graduation Solutions alleged that Acadima, LLC and
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`Loukaides owned and controlled websites,
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`including gradshop.com and
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`acadima.com, which duplicated Graduations Solutions’s website, graduationso
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`urce.com (“Plaintiff’s website”), and induced customer confusion. [Dkt. 31 (Second
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`Amended Compl.)]. Graduation Solutions sought injunctive relief, compensatory
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`damages, punitive damages, costs, and attorneys’ fees. Id. Acadima, LLC
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`defaulted, and so the only issue to be determined as to Acadima, LLC at trial was
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`damages. [Dkts. 73 (Mot. for Default), 75 (Order on Default)]. Therefore, the trial
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`focused on Graduation Solutions’s claims against Loukaides.
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`Trial began on June 20, 2019 and lasted four days. Plaintiff argued and
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`introduced evidence that Loukaides owned and controlled acadima.com and
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`gradshop.com, that those websites duplicated features of Plaintiff’s website, and
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`2
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`Case 3:17-cv-01342-VLB Document 166 Filed 03/26/20 Page 3 of 50
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`that, in doing so, those websites confused Plaintiff’s customers into mistaking
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`those websites for Plaintiff’s website. [Dkt. 113 at 18-21, 78:2-79:20, 170:1-4, 173:4-
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`14, 108:2-24, 119:4-14; 122: 20-123:24, and 137:1-139:8]. Plaintiff presented
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`evidence that Acadima, LLC had gross annual revenues of $1.3 million dollars.
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`[Dkt. 140 at 77:14-16, 110:10-18], and Plaintiff’s financial expert testified that
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`Plaintiff lost profits of $1,512,000.00 due to the conduct of Acadima, LLC and lost
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`profits of $1,936,000.00 due to the conduct of Loukaides. [Dkt. 140 at 116:15-
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`118:14]. Loukaides responded that Acadima, LLC, rather than Loukaides, owned
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`the websites and that Frank Seviane, Loukaides’s former business partner and
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`current owner of Acadima, LLC, was responsible for any copying, [Dkt. 113 at 26-
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`33]. Plaintiff offered 114 exhibits for trial, of which 113 were admitted. [Dkt. 127
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`(Marked Ex. List)]. Loukaides offered one, which the Court did not admit. Id. Plaintiff
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`also offered the testimony of four fact witnesses and an expert witness. See [Dkts
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`113, (6/20/2019 Trial Tr.), 140 (6/24/2020 Trial Tr.), 141 (6/25/2020 Trial Tr.), 142
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`(6/27/2019 Trial Tr.)]. Loukaides put on two witnesses. [Dkts. 140, 141].
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`After Plaintiff presented its case in chief, Loukaides moved for a directed
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`verdict. [Dkt. 115 (Mot. for Directed Verdict)]. After hearing oral argument, this
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`Court denied the motion. [Dkt. 141 at 78:2-89:18]. The jury found that Acadima,
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`LLC was liable for $1,512,000.00 in actual damages, and $1,512,000.00 in punitive
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`damages. [Dkt. 124 (Jury Verdict) at 1-2]. The jury found that Loukaides was liable
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`for copyright infringement, trade dress infringement under the Lanham Act,
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`violation of the Connecticut Unfair Trade Practices Act, violation of Connecticut
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`common law against unfair competition, and unjust enrichment, but that he was
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`3
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`not liable for false advertising under the Lanham Act. Id. at 3-4. Based on these
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`liability findings, the jury awarded Plaintiff actual damages of $1,615,00.00 and
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`punitive damages of $1,615,000.00 against Loukaides. Id. at 2.
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`II.
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`Motion for a New Trial
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`Loukaides moves for a new trial pursuant to Federal Rule of Civil Procedure
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`59, arguing that the Court made six critical and independent legal errors. [Dkt. 148
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`(Def. Mot. New Trial), Dkt. 149 (Def. Mem. Supp. Mot. New Trial)]. Graduation
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`Solutions opposes the motion. [Dkt. 156]. Loukaides replies. [Dkt. 161]. The Court
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`addresses each argument in turn.
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`A. Legal Standard
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`Rule 59 permits a court, on motion, to “grant a new trial on all or some of the
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`issues . . . after a jury trial, for any reason for which a new trial has heretofore been
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`granted in an action in federal court.” Fed. R. Civ. P. 59(a)(1)(A). To grant a new
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`trial, the court must view the jury's verdict as against the weight of the evidence.
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`Manley v. AmBase Corp., 337 F.3d 237, 245 (2d Cir. 2003). “[A] decision is against
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`the weight of the evidence . . . if and only if the verdict is [(1)] seriously erroneous
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`or [(2)] a miscarriage of justice.” Farrior v. Waterford Bd. of Educ., 277 F.3d 633,
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`635 (2d Cir. 2002). “[R]elief is not to be granted unless the movant demonstrates
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`that the error was not harmless.” Leo v. Long Island R. Co., 307 F.R.D. 314, 321
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`(S.D.N.Y. 2015) (quoting Tesser v. Board of Educ. Of City Sch. Dist., 370 F.3d 314,
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`318-21 (2d Cir. 2004)).
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`4
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` In reviewing motions for a new trial, the judge “may weigh the evidence and
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`the credibility of witnesses and need not view the evidence in the light most
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`favorable to the verdict winner.” Raedle v. Credit Agricole Indosuez, 670 F.3d 411,
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`418 (2d Cir. 2012) (citing United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998)).
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`But where “a verdict is predicated almost entirely on the jury’s assessments of
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`credibility, such a verdict generally should not be disturbed except in an egregious
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`case, to correct a seriously erroneous result, or to prevent a miscarriage of
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`justice.” Raedle, 670 F.3d at 418-19.
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`Analysis
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`B. Instruction on Exhibit A
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`Loukaides first argues that the Court erred in giving an instruction on the
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`inadmissibility of Loukaides’s Exhibit A (“Exhibit A”), a single piece of paper which
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`appeared to be a portion of an email dated July 5, 2016 sent by non-party Frank
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`Seviane (“Seviane”) to non-party Elizabeth Barwick. [Dkt. 149 at 4-11]
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`Before trial and outside the presence of the jury, Loukaides attempted to
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`submit Exhibit A into evidence. [Dkt. 140 at 12:11-14:20]. Graduation Solutions
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`objected under Federal Rules of Evidence 901 and 801 that Exhibit A could not be
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`authenticated and contained inadmissible hearsay. [Dkt. 100 at 24 (Joint Trial Mem.
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`Sched. F)]; [Dkt. 140 at 14:22-15:3]. Loukaides argued that portions of the
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`deposition transcript of Frank Seviane should be sufficient to deem Exhibit A self-
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`authenticating and reliable. [Dkt. 140 at 13:12-14:20, 16:7-18:5]. But Seviane was
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`not shown Loukaides’s Exhibit A during his deposition, he did not admit to sending
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`or knowing about it, and he did not in any way otherwise authenticate it. Id. at 19.
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`Further, when asked about how Loukaides came into possession of Exhibit A,
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`since he was not a sender or recipient, Loukaides represented that Seviane
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`forwarded him the email. Id. at 16:7-11. But he failed to present the complete
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`forwarded email as part of Exhibit A. Id. After considering these facts, the Court
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`found that the email excerpt marked Exhibit A could not be admitted with just its
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`present support. Id. at 18:5-19:16.
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`Later that day, Loukaides’s counsel questioned him on Exhibit A in front of
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`the jury, and again attempted to lay the foundation to offer Exhibit A into evidence.
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`[Dkt. 140 at 183]. The Court repeatedly cautioned Loukaides and his counsel to not
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`“not reference anything in the email,” but only “categorically describe what the
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`document is.” Id. at 180:1-20. Nevertheless, before the document was admitted,
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`Loukaides testified that Seviane had forwarded him an email showing that Seviane
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`had a content writer for the websites. Id. at 183:14. Graduation Solutions’s counsel
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`objected and the Court excused the jury to “address this evidentiary issue.” Id. at
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`183:17-20.
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`After the jury exited, Loukaides again told the Court that the email had been
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`forwarded to him. Id. at 186:5. The Court asked Loukaides to produce the entire
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`forwarded email, and Loukaides said he would have to look for it. Id. at 186:6-7. At
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`this point in the exchange, out of the presence of the jury, the Court said “this is
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`beginning to look like a fraud on the Court and the jury.” Id. at 188:7-8. The Court
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`recessed. Upon return from recess, and still out of the presence of the jury, the
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`Court confirmed with Loukaides’s counsel that counsel had explained to
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`Loukaides his obligations as a witness and that “the testimony he has given
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`casts… his credibility in doubt.” Id. at 191.
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`Before bringing the jury back in, the Court informed counsel that the Court
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`planned to instruct the jury that the email is “not admissible and that the jury
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`should disregard all testimony concerning” it because it is “hearsay” and has “no
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`indicia of reliability,” even though “Mr. Loukaides testified under oath that the
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`email was forwarded to him,” because “Mr. Loukaides is unable to produce his
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`portion of this email, or any evidence that it was ever forwarded to him.” [Dkt. 142
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`at 192]. The Court asked for objections, id., but neither party offered an objection.
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`Once the jury was brought back in, the Court gave the jury a curative instruction.
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`The Court reproduces that instruction below, and underlines the sections
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`highlighted as objectionable by Loukaides in his motion for new trial:
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`“You may recall this morning the defense offered an email. I ruled that
`the email was not admissible. I ruled that it wasn't admissible under the
`rules of evidence. The rules of evidence are designed to permit the jury
`to see and to hear only information which has a reliability – is reliable.
`And we use the term indicia of reliability, sense of reliability, some
`credibility, so that if someone were to type a document and try to admit
`it, and it wasn't on letterhead or it wasn't stamped, or no one could
`testify authoritatively where it came from as we call it, authenticating it,
`then it would not be admissible. Because, of course, anyone can
`fabricate evidence. Evidence has to have some reliability. I ruled this
`morning that the purported email the defense wanted to admit was not
`admissible, because it simply contained letters one a piece of paper.
`And it was printed landscape, as opposed to in letter form, which most
`email in this country tend to be. I found that it did not fall within an
`exception to the hearsay rule, and I prevented it from being admitted.
`However, I expressly left the door open for the defendant to seek to offer
`it again if they could [admit] in evidence some basis for its authenticity
`or its reliability otherwise.
`Mr. Loukaides took the stand and swore and oath to tell the truth,
`swore and oath so help him god, and under penalty of perjury, to tell the
`truth. And he testified in response to my specific question whether this
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`email was forwarded to him affirmatively. In other words, he testified
`yes to my question as to whether the email had been forwarded to him.
`Now, clearly, if the email had been forwarded to him, and he had a copy
`of the email forwarded to him, and perhaps his response back, then he
`could authenticate it. But when asked where the forwarded email was
`he said he testified that he did not have it. Between the time he said it
`was forwarded, and between the time he said he didn't have any
`evidence that it was forwarded to him, he testified as to its content. He
`testified that the email consisted of a communication between Mr.
`Seviane and a woman named Elizabeth, whose last name was variously
`described, and that the email described Elizabeth as a copyrighter, and
`suggested that Elizabeth was the person who wrote the content of the
`Acadima website.
`I instruct you that that email is not admissible, and that nothing
`that you have heard in this courtroom concerning that email may be
`considered by you as evidence. It is not reliable, and you may not
`consider it. And I apologize to you for even allowing [you] to hear
`anything about it. We're going to proceed with the balance of Mr.
`Loukaides’s testimony.
`All right. Mr. Loukaides, I remind you that you remain under oath
`and under penalty of perjury. And please remember to answer the
`questions and only the questions. Do not attempt to curry favor with the
`jury by disclosing your personal problems.”
`[Dkt. 140 at 193-95].1
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` “The ultimate decision as to all witnesses’ credibility and as to the
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`persuasive force of their testimony is for the trier of fact,” here, the jury. Presley v.
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`U.S. Postal Serv., 317 F.3d 167, 178 (2d Cir. 2003). The Second Circuit has held that
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`a new trial should be granted where a trial judge “asks questions bearing on the
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`1 Loukaides had given non-responsive testimony about his divorce proceedings
`at several points prior. See, e.g., [Dkt. 140 at 161:2-161:13] (“[Plaintiff’s counsel]:
`[D]id you sell Yulex or Directline, can you explain to the jury what those two
`companies are? [Loukaides]: No. They were – they’re companies which, as I said,
`a bad divorce with my ex-wife. I lost pretty much everything. I almost lost my son.
`Still – she’s filed another thing against me, so I might lose my son for a second
`time and have to fight for him. So with – I’m sorry, because I just – could you
`repeat that? [Plaintiff’s counsel]: Sure. The Court: Mr. Loukaides, the question –
`we’re interested in your companies.”); id. at 159:22-160:14, id. at 163:1-164:4, id.
`at 172:25-173:14.
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`credibility of a defendant-witness prior to the completion of direct examination,”
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`where the “sole purpose” of the questioning “was to challenge the credibility of
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`the witness.” United States v. Victoria, 837 F.2d 50, 55 (2d Cir. 1988). And, “[w]hen
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`such doubt is injected by the court in a case where credibility of a defendant-
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`witness is a key issue, there has been a deprivation of a fair jury trial.” Id.
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`But a trial judge may ask a witness questions for the purpose of “the
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`clarification of ambiguities, the correction of misstatements or the development of
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`information used to make rulings.” Id. Indeed, “[t]he court must decide any
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`preliminary question about whether… evidence is admissible.” Fed. R. Evid. 104(a).
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`And “where evidence has been improperly admitted,” a district court must give a
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`“curative instruction… sufficient to render the error harmless.” United States v.
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`Lawrence, 767 F. App'x 77, 80 (2d Cir. 2019). “It is imperative that limiting
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`instructions be clear and unequivocal.” United States v. Williams, 585 F.3d 703, 709
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`(2d Cir. 2009) (quotations omitted). Courts’
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`limiting
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`instructions on the
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`inadmissibility of evidence do not impermissibly undermine the credibility of a
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`witness who has testified in support of that evidence. Etim v. Bd. of Trustees of
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`Connecticut State Univ., 164 F.3d 617 (2d Cir. 1998) (holding that the transcript
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`“revealed no attempt by the district court to influence the jury’s perception of the
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`probative value of Etim’s evidence” where the district court commented on the
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`inadmissibility of his exhibits, including “admonishing the jury not to consider
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`hearsay allegations that Etim made in a letter.”)
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`The Court finds that it did not err in its comments to Loukaides or in its
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`curative instruction. First, to the extent that the Court asked Loukaides questions
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`Case 3:17-cv-01342-VLB Document 166 Filed 03/26/20 Page 10 of 50
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`regarding Exhibit A, it did so for the permissible purpose of developing information
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`used to make rulings, and not for the “sole” purpose of challenging his credibility.
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`The Court dismissed the jury before asking Loukaides any questions. [Dkt. 140 at
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`183:17-20]; see United States v. DiTommaso, 817 F.2d 201, 221 (2d Cir. 1987)
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`(holding that judge’s reprimand of counsel “furnishes no basis for reversal if made
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`outside of the jury's presence” even if unwarranted). The Court prefaced the
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`discussion with the comment that it intended to address the “evidentiary issue.”
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`Id. at 183:20. Finally, the Court asked Loukaides no further questions once it was
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`satisfied that it understood the facts necessary to make a ruling, and it did make a
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`ruling. Id. at 192:2-22.
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`Next, the Court’s statements to the jury were required since it found Exhibit
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`A inadmissible. Ignoring the Court’s previous evidentiary ruling and the Court’s
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`repeated cautions against discussing the contents of an exhibit inadmissible
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`without additional corroboration, Loukaides testified about Exhibit A’s contents,
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`that a woman named Elizabeth was the person who wrote the content of the
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`acadima.com. [Dkt. 140 at 180:1-183:14]. As discussed below, the Court found that
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`the Exhibit A was inadmissible under Federal Rules of Evidence 901 and 807, so
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`any discussion of it possibly jaundiced the jury. Therefore, here, as in Etim, the
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`Court was required to unequivocally tell the jury that the email was hearsay and
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`could not be considered. 164 F.3d 617. The Court’s reminder to Loukaides that he
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`was still “under oath” is standard when a witness resumes testifying after a recess.
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`See [Dkt. 113 at 84:20, 136:15, 170:24-25], [Dkt. 140 at 119:23] (reminding Plaintiff’s
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`witnesses that they were “under oath” on return from recess).
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`Further, to the extent that Loukaides argues that the Court’s comments
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`improperly undermined his credibility, any error was harmless and any impact
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`immaterial because Loukaides’s credibility was more significantly impacted by the
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`contradiction between his trial testimony and his prior sworn statement:
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`[Plaintiff’s counsel]: Well, let's keep going. Let's keep going, because
`gradshop.com sold graduation apparel over the internet, did it not?
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`[Loukaides]: Gradshop does sell graduation products over the
`internet.
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` …
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`
`
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`[Plaintiff’s counsel]: Oh, actually, why don't we just go to page 8 of the
`postnuptial agreement?
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` …
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`
`
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`[Plaintiff’s counsel]: Read that sentence, starting with the word "All".
`What does that say?...
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` …
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`
`
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`[Loukaides]: "All intellectual property related to said trademarks and
`domain names shall be owned by Alex."
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`intellectual property related to said
`[Plaintiff’s counsel]: "All
`trademarks and domain names shall be owned by Alex." And that's
`Exhibit D?
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`[Loukaides]: Correct.
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`[Plaintiff’s counsel]: So now let's go back down to Exhibit D…
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`[Loukaides]: Sure.
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`[Plaintiff’s counsel]: And… what does this say right here, what's this
`word?
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`[Loukaides]: URL.
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`[Plaintiff’s counsel]: That's domain names, right?
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`Case 3:17-cv-01342-VLB Document 166 Filed 03/26/20 Page 12 of 50
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`[Loukaides]: Yes.
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`[Plaintiff’s counsel]: And what is this one?
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`[Loukaides]: gradshop.com.
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` …
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`
`
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`[Plaintiff’s counsel]: I'm going to ask you another question now. You
`swore under oath in this case, in an interrogatory, that's a written
`question, on February 7, 2017, you swore under oath that you've not
`owned any websites for the promotion, marketing, or sale of
`graduation products, you remember answering that question?
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`[Loukaides]: Yes. And that --
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`[Plaintiff’s counsel]: So let's go to that one, shall we.
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` …
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`
`
`
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`[Loukaides]: "Defendants have not owned or operated and do not
`own or operate any websites for promotion, marketing, sale,
`graduation products, nor does Alexander own any such websites."
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`[Plaintiff’s counsel]: Now you read that really quickly. I'll slow it down
`a bit. It says, "Defendants, Acadima, LLC and" who?
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`[Loukaides]: "Alexander Loukaides.”
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`[Dkt: 140 at 215:3 – 218:17]; see id. at 212, 219. Thus, any possible harm to
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`Loukaides’s credibility was immaterial.
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`Finally, none of the precedent Loukaides offers compels a different
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`conclusion. The proffered cases address situations in which the trial judge asked
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`a witness questions bearing on the witness’s credibility (a) in front of the jury and
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`(b) without any evidentiary purpose, both key distinguishing features present in
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`the instant case. See United States v. Filani, 74 F.3d 378, 387 (2d Cir. 1996);
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`Pescatore v. Pan American World Airways, Inc, 97 F.3d 1, 20 (2d Cir. 1996); United
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`States v. Mazzilli, 848 F.2d 384, 388 (2d Cir. 1988); United States v. Victoria, 837 F.2d
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`50, 55 (2d Cir. 1988).
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`C. The Authentication of Exhibit A
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`Loukaides also argues that it was error for the Court to interrupt Loukaides
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`during his testimony about Exhibit A because, had the Court not interrupted,
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`Loukaides could have laid a foundation for its admission by explaining that the
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`email was sent from Seviane’s @hzoz.com account, for which Mr. Loukaides, as
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`the owner of the company, was the records custodian. [Dkt. 149 at 9-10], [Dkt.161
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`at 5-6].
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`Hearsay may not be admitted for the truth of the matter asserted unless it
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`falls under an exception, or the evidence is otherwise self-authenticating. Fed. R.
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`Evid. 801, 902. The Court infers that Loukaides’s contention is that, had he been
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`able to fully explain himself, he could have argued for the admission of the email
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`under the regularly conducted activity records exception. Loukaides’s argument
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`that the email excerpt was admissible under this exception is unavailing.
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`To qualify for the regularly conducted activity records exception, the
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`document must meet the following criteria:
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`(A) the record was made at or near the time by--or from information
`transmitted by--someone with knowledge;
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`(B) the record was kept in the course of a regularly conducted activity
`of a business, organization, occupation, or calling, whether or not for
`profit;
`(C) making the record was a regular practice of that activity;
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`(D) all these conditions are shown by the testimony of the custodian or
`another qualified witness, or by a certification that complies with Rule
`902(11) or (12) or with a statute permitting certification; and
`
`(E) the opponent does not show that the source of information or the
`method or circumstances of preparation
`indicate a
`lack of
`trustworthiness.
`
`
`Fed. R. Evid. 803(6).
`
`For evidentiary rulings, a new trial should be granted if the ruling affected a
`
`party’s substantial rights. Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d
`
`Cir. 2005). A substantial right is affected if the jury’s judgment was likely swayed
`
`by the error in some material respect. Perry v. Ethan Allen, Inc., 115 F.3d 143, 150
`
`(2d Cir. 1997). The Court finds that Loukaides has not shown that its ruling affected
`
`his substantial rights for three reasons.
`
`First, Loukaides’s attorney did not lay a foundation for the introduction of
`
`the email excerpt before seeking to offer it as is customary when introducing a
`
`document under this rule. See United States v. Stewart, 433 F.3d 273, 317 (2d Cir.
`
`2006) (explaining foundation requirements under the rule). After questioning
`
`Loukaides, the Court asked Loukaides’s counsel for “supplemental indicia of
`
`reliability or otherwise,” inviting him to offer additional arguments for the
`
`admission of Exhibit A. [Dkt. 140 at 189:8-13]. Loukaides and his counsel were free
`
`to make the records-custodian argument at that time but did not.
`
`Second, Loukaides testified that “the person that works for me is the
`
`administrator for this email as well,” not that he himself was the records custodian.
`
`[Dkt. 140 at 186]. He had also previously testified that he was in China and Seviane
`
`operated the company day to day. [Dkt. 140 at 165:12-22]. Thus, per his own earlier
`
`
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`Case 3:17-cv-01342-VLB Document 166 Filed 03/26/20 Page 15 of 50
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`testimony, Loukaides was not the keeper of the record within the meaning of Rule
`
`803. Cf. Morgan Guar. Tr. Co. v. Hellenic Lines Ltd., 621 F. Supp. 198, 217 (S.D.N.Y.
`
`1985) (finding that, for the purpose of the rule, corporate director was qualified
`
`witness, though not custodian, where he identified exhibits as minutes of meetings
`
`of board of directors at which he was present).
`
`Finally, even if Loukaides were custodian of records, he would have needed
`
`to establish that Exhibit A had “sufficient indicia of trustworthiness to be
`
`considered reliable” and met the other requirements of Rule 803(6), which he does
`
`not contend he could do. The document was a portion of an email conversation
`
`excerpted by Loukaides for the purpose of introducing it at trial in defense of the
`
`action. [Dkt. 140 at 184:6- 186:12]. Consequently, the source, method and
`
`circumstances of its preparation indicate a lack of trustworthiness. See Fed. R.
`
`Evid. 803(6)(E); see CSI Inv. Partners II, L.P. v. Cendant Corp., 507 F. Supp. 2d 384,
`
`420 (S.D.N.Y. 2007), subsequently aff'd, 328 F. App'x 56 (2d Cir. 2009) (finding
`
`inadmissible a document produced only once and in connection with litigation).
`
`The document would not have qualified for admission as a self-authenticating
`
`document either which explains why Loukaides did not argue that it did. Fed. R.
`
`Evid. 902(11).
`
`D. Second Curative Instruction
`
`Next, Loukaides argues that the Court erred in not giving a curative instruction
`
`once the Court became aware that Loukaides had located the forwarded email
`
`underlying Exhibit A. After court on June 24th, 2019, Loukaides was able to return
`
`
`
`15
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`

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`Case 3:17-cv-01342-VLB Document 166 Filed 03/26/20 Page 16 of 50
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`to his computer and locate the forwarded copy of the email. [Dkt. 149-2 (Ex. B to
`
`Mem. Supp. Mot. for New Trial)]. The next day, Loukaides’s counsel stated:
`
`It wasn’t clear to me, Your Honor, if the Court was ordering that we
`search for a forwarded copy of that document or not; if the Court was,
`if the document has been located, I have no intention of offering it into
`evidence.
`
`[Dkt. 141 at 10:4-10]. Loukaides argues that, once the Court was aware that
`
`Loukaides in fact had the email, the Court had an obligation to correct the
`
`erroneous impression it conveyed to the jury regarding Loukaides’s credibility.
`
`[Dkt. 149 at at 11], [Dkt. 161 at 6-7].
`
`The Court is not persuaded. First, Loukaides’s counsel did not affirmatively
`
`state that he had located the forwarded email. Even if he did, he clearly stated that
`
`he did not intend to offer it into evidence, so the Court did not have a second
`
`opportunity to evaluate its admissibility. Moreover, Loukaides’s counsel did not
`
`ask the Court for a curative instruction. In this circumstance, the Court would not
`
`have been justified in giving a sua sponte curative instruction, let alone compelled
`
`to do so. Indeed, a sua sponte curative instruction may in fact have been
`
`inappropriate because it would have shone a spotlight on the question of
`
`Loukaides’s credibility. See United States v. Deandrade, 600 F.3d 115, 119 (2d Cir.
`
`2010) (holding no error for failure to give sua sponte curative instruction to
`
`disregard testimony that defendant had previously been incarcerated because
`
`“a curative instruction could easily have done more harm than good by focusing
`
`the jurors on two allusive references that they otherwise might have missed or
`
`construed as innocuous.”).
`
`
`
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`Case 3:17-cv-01342-VLB Document 166 Filed 03/26/20 Page 17 of 50
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`Loukaides cites United States v. Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992).
`
`There, the Ninth Circuit considered whether a district court should have provided
`
`additional instructions to a jury after a U.S. Attorney repeatedly introduced his
`
`personal opinion of the witness’s credibility, stating that he thought government
`
`witnesses were “candid,” “honest,” that their stories weren’t “pat,” and suggesting
`
`that if the jury disagreed with him, they must think that he had been “hoodwinked.”
`
`Id. at 1052-53. But here, unlike in Kerr, the Court only addressed Loukaides’s
`
`credibility as far as it was relevant to the Court’s proper and required evidentiary
`
`ruling, as explained above.
`
`E. Amendment of Pleadings to Conform to the Evidence
`
`At the close of evidence, Graduation Solutions moved to amend its
`
`pleadings to conform to the evidence adduced at trial “to incorporate Gradshop.”
`
`[Dkt. 141 at 71: 12-17, 82:21-23]. Over Loukaides’s objection, the Court granted the
`
`motion. Id. at 86:16-88:6. Loukaides now argues the Court erred in doing so. [Dkt.
`
`149 at 14 -22].
`
`With regard to amendments during trial, Rule 15 states:
`
`(1) Based on an Objection at Trial. If, at trial, a party objects that
`evidence is not within the issues raised in the pleadings, the court
`may permit the pleadings to be amended. The court should freely
`permit an amendment when doing so will aid in presenting the
`merits and the objecting party fails to satisfy the court that the
`evidence would prejudice that party's action or defense on the
`merits. The court may grant a continuance to enable the objecting
`party to meet the evidence.
`
`(2) For Issues Tried by Consent. When an issue not raised by the
`pleadings is tried by the parties' express or implied consent, it
`must be treated in all respects as if raised in the pleadings. A party
`may move--at any time, even after judgment--to amend the
`
`
`
`17
`
`

`

`Case 3:17-cv-01342-VLB Document 166 Filed 03/26/20 Page 18 of 50
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`pleadings to conform them to the evidence and to raise an
`unpleaded issue. But failure to amend does not affect the result of
`the trial of that issue.
`
`
`
`Fed. R. Civ. P. 15(b). “The decision of whether to allow such an amendment is left
`
`to the discretion of the district court judge.” Vermont Plastics, Inc. v. Brine, Inc., 79
`
`F.3d 272, 279 (2d Cir. 1996).
`
`
`
`Here, Graduation Solutions tried its claims regarding Gradshop.com by
`
`consent. Although Graduation Solutions submitted more than ten exhibits relevant
`
`only to Gradshop.com, Loukaides did not object that any of them was not within
`
`the issues raised by the pleadings. See [Dkt. 100 (Joint Trial Mem.) at 7]; [Dkt. 127
`
`(Marked Ex. List) at Exs. 10, 16, 93-106]; compare Fed. R. Civ. P. 15(b)(1) (objection
`
`sub-section applies if “at trial, a party objects that evidence is not within the issues
`
`raised in the pleadings”) with Fed. R. Civ. P. 15(b)(2) (consent sub-section
`
`otherwise applies). Further, Loukaides himself proposed three