Full opinion text
TABLE OF CONTENTS OPINION MURRAY M. SCHWARTZ, District Judge. Introduction After 81 jury trial days spanning over five months and generating over 15,500 pages of trial transcript followed by seven and one-half days of deliberations, the jury returned its special verdict, consisting of answers to six interrogatories. (Docket Item “Dkt.” 756). Before judgment was entered on the special verdict, the presiding trial judge, the Honorable Edwin D. Steel, Jr., became seriously ill and unable to discharge his judicial duties. On May 5, 1983, pursuant to Fed.R.Civ.P. 63, the case was assigned to Judge Murray M. Schwartz. Thereafter, the Court heard argument on the parties’ proposed forms of judgment. Because of scheduling constraints, the Court instructed the parties to begin briefing their post-judgment motions prior to the entry of judgment on the assumption that judgment would be entered adverse to each in all respects. Plaintiff, Rose Hall Ltd. (“Rose Hall” or “plaintiff”), and defendants, Chase Manhattan Overseas Banking Corporation (“CMOBC”) and Holiday Inns, Inc. (“Holiday Inns”), filed their opening briefs on post-trial motions on June 6, 1983. On June 10, 1983, the Court entered judgment on the verdict for plaintiff against CMOBC in the amount of six million dollars plus prejudgment interest, and for Holiday Inns against plaintiff. Rose Hall v. Chase Manhattan Overseas Banking Corp., 566 F.Supp. 1558 (D.Del. 1983) [hereinafter cited as “Judgment Opinion” or “Dkt. 773”]. Briefing on the post-judgment motions as originally instructed by the Court was completed on July 11, 1983, and hearing was held on July 15, 1983. As a result of the briefing of post-judgment motions prior to entry of judgment, the Court is in the unusual position of having before it motions from both plaintiff and CMOBC for judgment notwithstanding the verdict or, in the alternative, a new trial. On July 5, 1983, Rose Hall amended its motion for judgment notwithstanding the verdict or alternatively for a new trial to seek such relief only if the Court grants CMOBC any of the relief sought in its motion for judgment notwithstanding the verdict or new trial. (Dkt. 869). The Court first considers CMOBC’s post-judgment motions. The Court has determined that CMOBC’s request for judgment notwithstanding the verdict on the only issue upon which judgment was granted to plaintiff, deceit on the court, must be granted. Applying Fed.R.Civ.P. 50(c)(1), the Court is instructed to rule on defendant’s new trial motion; that ruling forms the next portion of the opinion. Plaintiff’s motion for judgment notwithstanding the verdict or, in the alternative, a new trial is addressed in the next portion of this opinion as if it had been filed pursuant to Fed.R.Civ.P. 50(c)(2). The Court concludes that plaintiff’s motion for judgment notwithstanding the verdict or, alternatively, new trial should not be granted. Finally, the opinion addresses the issue of costs deferred by the Judgment Opinion. The Court has attempted to treat the significant issues presented by the parties. Due to the enormity of the post-judgment briefing, totaling over 550 pages not including the incorporation by reference of several earlier briefs and letters encompassing hundreds of pages, the Court’s treatment of these issues has resulted in an opinion of inordinate length. Any issue not specifically addressed may be assumed to have been resolved against the moving party. The background facts have been set forth at length in the Judgment Opinion. In order to clarify the complex history of this case, a largely verbatim recitation of the facts from the Judgment Opinion will be set forth. In addition, relevant facts are stated in more detail as required in the various sections of the opinion. I. Background Facts Plaintiff, Rose Hall, is a Cayman Islands corporation whose ultimate principal and controlling stockholder is John W. Rollins, Sr. Rose Hall owned approximately 5500 acres of land on the north coast of Jamaica near Montego Bay. In the late 1960’s, Rose Hall organized a wholly owned subsidiary company named Rose Hall (H.I.) Ltd. (“Rose Hall (H.I.)”) for the purpose of owning a hotel in Jamaica to be known as the Rose Hall Holiday Inn. The hotel property owned by Rose Hall (H.I.) consisted of the hotel building and an 11 acre tract of land cut out from the Rose Hall acreage. The hotel was financed by a $6,250,000 loan from the Bank of Nova Scotia (“BNS”) to Rose Hall (H.I.) and leased to a subsidiary of Holiday Inns for a twenty year term but guaranteed by defendant Holiday Inns. Chase Merchant Bankers Jamaica, Ltd. (“Chase Jamaica”) is a wholly owned subsidiary of the only “Chase” defendant in this action, Chase Manhattan Overseas Banking Corporation, which in turn is a wholly owned subsidiary of Chase Manhattan Bank, N.A. (“CMB”), a wholly owned subsidiary of the Chase Manhattan Corporation. Chase Manhattan Overseas Corporation (“CMOC”) is another wholly owned subsidiary of the Chase Manhattan Bank, N.A. On June 3, 1974, Rose Hall borrowed $3,000,000 from Chase Jamaica. As security for the loan, Rose Hall gave Chase Jamaica a first mortgage on approximately 3000 acres of Rose Hall’s land, lying largely in the middle of the 5500 acre assemblage and a pledge of all the shares of Rose Hall (H.I.) and caused Rose Hall (H.I.) to give a second mortgage on the Rose Hall Holiday Inn. Rose Hall quickly went into default on its loan from Chase Jamaica. By mid-1975, Rose Hall (H.I.) had entered into negotiations for the sale of the hotel to the Urban Development Corporation (“U.D.C.”), a corporation owned by the Jamaican government. By May or June 1976, those negotiations had crystallized into a tentative arrangement with the Jamaican government. The hotel and the 11 acres on which it was situated would be sold to the U.D.C. for $13,000,000, payable in $10,000,000 cash and $3,000,000 in long-term Jamaican government guaranteed debentures. As the sale negotiations continued, Rose Hall fell further behind in payments due under the Chase Jamaica loan. In early 1976, Chase Jamaica, as pledgee of the shares, registered the stock of Rose Hall (H.I.) in its name and became involved in the sale negotiations. Holiday Inns learned of the sale negotiations in approximately April 1976, and, desiring to modify the terms of the lease with Rose Hall (H.I.) which it considered oppressive, held discussions with John Rollins and Jamaican government representatives. ■ Plaintiff contended that these discussions embodied: first, threats to breach its lease unless it was granted concessions; second, false and malicious statements that Rose Hall (H.I.) had misrepresented its earnings to the government; and third, assertion of a false claim that Rose Hall (H.I.) owed Holiday Inns approximately $4 million previously spent by the lessee for maintenance and repair of the hotel. Without specifying which allegation formed the basis for its finding, the jury implicitly concluded that Holiday Inns wrongfully interfered with the Rollins negotiated proposed $13,000,000 sale to U.D.C. and thereby caused Rose Hall $4,500,000 in damages. In early August, 1976, Chase Jamaica informed Holiday Inns that the Rose Hall (H.I.) shares were in its name and arranged a meeting for August 20, 1976 in Miami, Florida. This meeting formed the basis of conspiracy claims by plaintiff against the defendant Holiday Inns. Rose Hall alleged that Chase Jamaica and Holiday Inns conspired to frustrate the consummation of the $13,000,000 arrangement and replace it with a sale at a drastically reduced price, thereby accomplishing objectives beneficial to themselves without regard to Rose Hall’s interests. The jury, however, found that there was no such conspiracy. In late August, 1976, the U.D.C. formally notified Rose Hall (H.I.) that it was no longer interested in pursuing the $13,000,-000 negotiations. On September 14, 1976, Chase Jamaica made a proposal far more attractive to the U.D.C. Instead of $13 million for the hotel only, Chase Jamaica offered to sell to the U.D.C. all of the Rose Hall collateral for approximately $9.5 million, consisting of $8.5 million for the shares of stock of Rose Hall (H.I.) and $1 million for the 3000 acres of mortgaged land. The U.D.C. accepted the offer in late September or early October, 1976, with closing taking place on November 18, 1977. In this action, plaintiff alleged and the jury found that this sale was unreasonably “cheap” and in violation of Chase Jamaica’s mortgagee duties, determining that, as a result, plaintiff was damaged in the amount of $1,500,000 for the cheap sale of the land and $0 for the shares of Rose Hall (H.I.). On September 21, 1976, Rose Hall representatives requested Chase Jamaica to permit Rose Hall (H.I.) to bring a lawsuit in Georgia against Holiday Inns for interference with the $13,000,000 arrangement. Rose Hall representatives also requested that Chase Jamaica withdraw its offer of sale to the U.D.C. In December, 1976, a lawyer for the Jamaican government requested that Chase Jamaica sell the assets of Rose Hall (H.I.) instead of its shares. Chase Jamaica refused these proposed courses of action and subsequently consummated its $9.5 million sale to the U.D.C. of Rose Hall (H.I.) stock and 3000 acres of land. By selling stock rather than the hotel asset, Chase Jamaica effectively made the interference claim against Holiday Inns unavailable to plaintiff. Rose Hall sued Holiday Inns in Georgia for wrongful interference with the $13,000,000 sale negotiations on September 30, 1976. The Georgia court held, without determining the merits of the interference claim, that such a suit could only be brought by Rose Hall (H.I.). Rose Hall, Ltd. v. Holiday Inns, Inc., C.A. No. C227-30 (Ga.Super.Ct., Fulton Cty., filed Sept. 30, 1976), affd, 146 Ga.App. 709, 247 S.E.2d -173, cert. denied, No. 55491 (Ga. Oct. 3, 1978). In effect, the Georgia court confirmed the unavailability of the interference claim. The jury found that Chase Jamaica wrongfully prevented Rose Hall from suing Holiday Inns in the Georgia action, and as a result plaintiff suffered $4,500,000 in damages. On October 4, 1976, Rose Hall filed an action in the Supreme Court of Judicature of Jamaica to enjoin the sale of stock and land by Chase Jamaica to the U.D.C. and, alternatively, for damages. The Jamaican court refused to enjoin the sale on the ground that monetary damages would be an adequate remedy if Rose Hall succeeded in proving its case at trial. Rose Hall Ltd., et al. v. Chase Merchant Bankers Jamaica Ltd., et al., Suit No. E-211 of 1976 (Sup.Ct. of Judicature of Jam., Jan. 17, 1977). (Plaintiff’s Exhibit “PX” 140). In the instant action, the plaintiff contended, and the jury found, that the defeat of the injunction was caused by misrepresentations to the Jamaican court made by representatives of Chase Jamaica to the effect that it would be financially able to meet any damage liability in view of the permanence of its Jamaican operation and its affiliation with the other Chase entities. There was evidence that at the time these representations were being made, actual undisclosed plans to close down Chase Jamaica’s operation existed. By February 1978, Chase Jamaica’s office closed and ceased active business. In mid-1980, the Jamaican court listed the Jamaican action for trial in January, 1981. Rose Hall moved to stay the Jamaican action pending resolution of the Delaware action. CMOBC opposed the stay and offered to pay any final judgment that might be entered against Chase Jamaica to the extent of J$10,000,000, subject to certain conditions. The Jamaican court, noting that CMOBC’s offer was so conditional as to be “worthless,” granted the stay of the proceedings. Rose Hall Ltd., et al. v. Chase Merchant Bankers Jamaica Ltd., et al., Suit No. E-211 of 1976 (Sup.Ct. of Judicature of Jam., Feb. 12, 1981) (PX 141, p. 21). On Chase Jamaica’s appeal, the Court of Appeal of Jamaica affirmed the granting of the stay. Chase Merchant Bankers Jamaica Ltd., et al. v. Rose Hall Ltd., et al., Sup.Ct. Civil Appeal No. 78/80, (Ct. of Appeal, Jam., June 23, 1982) (PX 641). Chase Jamaica then appealed the decision to the Privy Council in London. This appeal has apparently been abandoned. (Dkt. 868, p. 77 n. *). On April 11, 1979, Rose Hall filed the instant action against CMOBC, the parent corporation of Chase Jamaica, and against Holiday Inns. One of the alternative grounds advanced by plaintiff for imposing liability on the parent, CMOBC, for Chase Jamaica’s wrongs is embodied in Paragraph 54 which was added to the Second Amended Complaint by amendment on September 30, 1982. After extensive discovery, a jury trial was held from October 12, 1982 to March 8, 1983. The jury returned the “Special Verdict Accompanied By Interrogatories to the Jury Under Rule 49(a)” on March 17, 1983. It reads as follows: SPECIAL VERDICT ACCOMPANIED BY INTERROGATORIES TO THE JURY UNDER RULE 49(a) 1. In selling (a) the 3,000j+_ acres of land and (b) the shares of Rose Hall (H.I.) Ltd. did Chase Jamaica breach its duty to act in good faith, without reckless disregard for the interests of the mortgagor, taking reasonable precautions to obtain the best available price and to avoid an unreasonable sale of excess collateral? Yes x No_ 2. Did Chase Jamaica wrongfully prevent plaintiff from suing Holiday Inns in Georgia for alleged interference with the US$13 million sale either by Chase Jamaica selling to UDC shares instead of assets of Rose Hall (H.I.) or by refusing to take other action which would have permitted Rose Hall (H.I.) to join in the Georgia lawsuit? Yes x No 3. Did CMOBC control Chase Jamaica’s major decisions and actions relating to its actions under Question 1. or its actions under Question 2.? As to Question 1. (a) because of the Edge Act theory and/or Yes_No x (b) independently of the Edge Act Yes_No x As to Question 2. (a) because of the Edge Act theory and/or Yes_No x (b) independently of the Edge Act Yes_No x 4. Did Chase Jamaica, through its representations, as a result of its control by CMOBC, deceive the Jamaican court into not enjoining the sale of the collateral? Yes x No_ 5. Did Holiday Inns wrongfully conspire with Chase Jamaica in (a) selling the land, or (b) the shares under Question 1. or in taking its actions under Question 2.? A. As to the sale of the land — Question l.(a) Yes No x B. As to the sale of the shares of Rose Hall (H.I.)— Question l.(b) Yes_ No x C. As to Question 2. Yes No x 6. If the answer to Question 1. is “Yes”, what damages, if any, did plaintiff suffer as a result: (a) for the land $ 1,500,000 (b) for the shares $ 0 If the answer to Question 2. is “Yes”, what damages, if any, did plaintiff suffer as a result: $ 4,500,000 NOTE: Answer Questions 3., 4., 5., and 6. only if Question 1. or Question 2. is answered “Yes.” Regardless of your answer to Question 3., 4., or 5., answer Question 6. The Special Interrogatories were formulated so that Interrogatory Nos. 1 and 2 posed the question of whether Chase Jamaica, a nonparty to this action, committed any wrong with respect to the sale of the land and Rose Hall (H.I.) shares or wrongfully prevented plaintiff from suing Holiday Inns in Georgia. Interrogatory Nos. 3, 4 and 5 sought to determine who was liable if Interrogatory Nos. 1 and/or 2 were answered in the affirmative. Interrogatory Nos. 3 and 4 inquired whether CMOBC was liable. Interrogatory No. 3 centered on liability by reason of control of Chase Jamaica under plaintiff’s Edge Act theory or independently of the Edge Act while Interrogatory No. 4 sought to have the jury determine on an alternative theory of liability whether Chase Jamaica deceived the Jamaican court into not issuing an injunction and whether that deception resulted by reason of control by CMOBC. Interrogatory No. 5 sought to determine whether Holiday Inns was liable to plaintiff for wrongfully conspiring with Chase Jamaica. Finally, Interrogatory No. 6 sought to have the jury’s assessment of damages if Chase Jamaica did commit any of the wrongs set forth in Interrogatory Nos. 1 and 2. An assessment of damages in answer to Interrogatory No. 6 does not necessarily mean Rose Hall is entitled to judgment. The jury was instructed to assess plaintiff’s damages in Interrogatory No. 6 even if it found none of the named defendants in the lawsuit responsible for the wrongs committed by Chase Jamaica. This instruction by Judge Steel to the jury on the special verdict sheet was done over objection of CMOBC at the behest of plaintiff. Plaintiff consistently maintained before Judge Steel that CMOBC is liable for Chase Jamaica’s breaches of duty under the Edge Act as a matter of law. As a consequence, plaintiff asserted prior to verdict, and continues to assert that the jury’s answers to Interrogatory Nos. 3, 4 and 5 are irrelevant, i.e., who is liable and on what theory is unimportant because CMOBC is liable as a matter of law. While ruling against plaintiff on its theory under the Edge Act, Judge Steel was obviously persuaded by plaintiff that if he were in error, a lengthy retrial could be avoided by obtaining the jury’s assessment of plaintiff’s damages without regard to who was liable. In answer to Interrogatory No. 1, the jury determined that Chase Jamaica, a non-party in this action, wrongfully failed to realize the best available price for the land and shares of Rose Hall (H.I.) Ltd. in its sale to the U.D.C. In answer to Interrogatory No. 6, the jury found plaintiff was damaged in the amount of $1,500,000 for the land and $0 for the shares. Therefore, the jury necessarily concluded that at the time of the sale, the Rose Hall (H.I.) shares were worth no more to the U.D.C. than the $8,500,000 sale price it paid and the 3000 acres were worth $2,500,000, or $1,500,000 more than the $1,000,000 sale price paid by the U.D.C. By its affirmative answer to Interrogatory No. 2, the jury determined that Chase Jamaica wrongfully prevented Rose Hall from suing Holiday Inns for interference in the $13,000,000 sale negotiations between John Rollins and the U.D.C. In answer to Interrogatory No. 6, the jury found that as a result plaintiff suffered damages in the amount of $4,500,000. As indicated in the instructions, for the jury to arrive at this conclusion, it must have determined that in fact Holiday Inns did interfere, and that if Rose Hall had been able to sue Holiday Inns, it would have been awarded $4,500,-000 in damages. In this action, however, Holiday Inns could not be sued directly for the interference since only Rose Hall (H.I.) was possessed of that chose in action; rather it was sued only on a conspiracy theory of liability. In order to impose liability on Holiday Inns, plaintiff. was required to prove Holiday Inns conspired with Chase Jamaica in committing the wrongs described in Interrogatory No. 1 or Interrogatory No. 2. In answer to Interrogatory Nos. 5(A), (B) and (C), the jury found no conspiracy on the part of Holiday Inns. Therefore, judgment was entered in favor of Holiday Inns and against plaintiff on all claims. Several possible bases for imposing liability on CMOBC for Chase Jamaica’s wrongs were submitted to the jury in Interrogatory Nos. 3 and 4. The jury determined that CMOBC did not control Chase Jamaica’s major policy decisions and actions relating to the events described in Interrogatory Nos. 1 and 2. In addition, the jury found that CMOBC rebutted the presumption of control under the Edge Act, established by Judge Steel in Rose Hall Ltd. v. Chase Manhattan Overseas Banking Corp., 494 F.Supp. at 1154-56. The only basis found by the jury for holding defendant CMOBC liable for the wrongs of its subsidiary, Chase Jamaica, is embodied in Interrogatory No. 4. An affirmative answer to that question constitutes a factual finding by the jury that during the injunction proceeding in Jamaica, Chase Jamaica made false representations to the Jamaican court which induced that court to defeat Rose Hall’s attempts to enjoin the sale of collateral. The jury found that the Jamaican court was deceived by Chase Jamaica to believe there was no intention to close its operations and that it would remain in Jamaica with access to sufficient funds to satisfy any money judgment against it, when actual undisclosed plans to the contrary existed. The jury also found that this deception of the Jamaican court was controlled by CMOBC. Based on the jury’s answers to Special Interrogatories, the Court entered judgment for Holiday Inns against plaintiff on all claims and for plaintiff against CMOBC in the amount of six million dollars plus prejudgment interest. (Dkt. 773). Presently, the Court turns to the resolution of the parties’ motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial. II. Legal Standards Applicable to the Parties’ Post-Judgment Motions A. Motions for Judgment Notwithstanding the Verdict This opinion addresses both plaintiff’s and defendant CMOBC’s motions for judgment notwithstanding the verdict under Fed.R.Civ.P. 50(b). Both parties agree that “[t]he standards for granting a motion for judgment n.o.v. . .*. are the same as those governing the direction of a verdict.” 5A J. Moore, Moore’s Federal Practice ¶ 50.07[2] (2d ed. 1981). A court should grant the motion “if, without weighing the credibility of the evidence, there can only be one conclusion as to the proper judgment, and it is contrary to the verdict.” Kerry Coal Co. v. United Mine Workers, 488 F.Supp. 1080, 1094-95 (W.D.Pa.1980), affd, 637 F.2d 957 (3d Cir.1981), cert. denied, 454 U.S. 823, 102 S.Ct. 109, 70 L.Ed.2d 95 (1981). The Court is not free to “weigh the evidence, pass on the credibility of witnesses, or substitute its own judgment of facts for that of the jury.” 488 F.Supp. at 1095 (citing 9 C. Wright & A. Miller, Federal Practice and Procedure § 2524 at 541-544 (1971)). The Court may overturn a jury verdict only where the facts and all inferences, drawn in the non-moving party’s favor, would not permit a reasonable man to come to the conclusion the jury reached. Kerry Coal, 488 F.Supp. at 1095 (citations omitted). B. Motions for a New Trial Rose Hall and CMOBC have also moved for a new trial on various grounds. Although Fed.R.Civ.P. 59 does not enumerate the grounds for a new trial, the following have been recognized as general grounds for a new' trial: the verdict is against the clear weight of the evidence; damages are excessive; the trial was unfair; and that substantial errors were made in the admission or rejection of evidence or the giving or refusal of instructions. 11 C. Wright & A. Miller, Federal Practice and Procedure § 2805 at 37-38 (1973). A new trial motion on the ground that the verdict is against the weight of the evidence is to be distinguished from a motion for a directed verdict or for a judgment notwithstanding the verdict which raises the legal sufficiency of the evidence. In cases where a directed verdict or judgment notwithstanding "the verdict would not be justified, the trial court may set aside the verdict as contrary to the clear weight of the evidence and grant a new trial. 6A J. Moore, Moore’s Federal Practice, § 59.08[5] (2d ed. 1983). However, the Court should not set the verdict aside as against the clear weight of the evidence solely because it would have reached a different result as the trier of fact. Id. The Third Circuit Court of Appeals enunciated the test as follows: [Sjince the credibility of witnesses is peculiarly for the jury, it is an invasion of the jury’s province to grant a new trial merely because the evidence was sharply in conflict. The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts, and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge’s duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is his duty to set the verdict aside; otherwise not. Lind v. Schenley Industries, Inc., 278 F.2d 79, 89 (3d Cir.1960), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960) (quoting 6 J. Moore, Moore’s Federal Practice, (2d ed.) p. 3819). The modern trend has been for courts to exercise a more limited judicial discretion in determining whether to set aside a verdict as against the clear weight of the evidence. Schreffler v. Board of Education, 506 F.Supp. 1300, 1306 (D.Del. 1981). The Third Circuit appellate court has distinguished new trials granted on this ground from those granted because of claimed errors or defects in the conduct of the trial, such as evidence improperly admitted or prejudicial statements by counsel. New trials granted because of the court’s finding that the verdict was against the clear weight of the evidence will receive closer scrutiny on review. Hourston v. Harvlan, Inc., 457 F.2d 1105, 1107 (3d Cir. 1972) (citing Lind v. Schenley Industries, Inc., 278 F.2d at 90); Schreffler v. Board of Education, 506 F.Supp. at 1306. C. Standards Under Fed.R. Civ.P. 63 Rule 63 provides for reassignment of a case upon the disability of the presiding trial judge, and states that if the successor judge “is satisfied that he cannot perform [the] duties [to be performed by the court after a verdict is returned] because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.” Fed.R.Civ.P. 63. If the trial judge is disabled after the jury returns a verdict but before motions for judgment notwithstanding the verdict or new trial are heard or decided, the successor judge may pass on these motions. “The latter then becomes vested with the same broad discretion to grant or deny such motions as was the trial judge.” Miller v. Pennsylvania Railroad Co., 161 F.Supp. 633, 636 (D.D.C.1958), rev’d on other grounds, 272 F.2d 545 (D.C.Cir.1959). The parties agree there is no impediment to the determination of their judgment notwithstanding the verdict motions by the successor judge in this case. Complications arise, however, when new trial motions are based, as some of the present ones are, on the ground that the verdict is contrary to the clear weight of the evidence. In this situation, the court might itself have to weigh the evidence. Although determination of the “credibility of witnesses is peculiarly for the jury,” 6A J. Moore, Moore’s Federal Practice, § 59.-08[5] (2d ed. 1983), a judge may be required to pass on the credibility of witnesses in deterrhining whether the verdict is against the clear weight of the evidence. Ruggieri v. Beauregard, 110 R.I. 197, 291 A.2d 413, 414 (Sup.Ct.R.1.1972). “It is difficult to perceive the propriety of an exercise of such power where credibility is involved, the successor judge having neither seen nor heard the witnesses as they testified.” 291 A.2d at 414. In some instances, scrutiny of the relevant transcript portions and documents may indicate that no credibility determinations are involved. Then, the successor judge can clearly rule on the new trial motions. See e.g., Miller v. Pennsylvania Railroad Co., 161 F.Supp. 633, 642 (D.D.C.1958), rev’d on other grounds, 272 F.2d 545 (D.C.Cir.1959). However, if the successor judge finds that determining whether the verdict is contrary to the clear weight of the evidence involves questions of credibility which he should determine, he should, in his discretion, grant a new trial. Ruggieri, 291 A.2d at 414-15. Several cases requiring a new trial because of the successor judge’s inability to make credibility determinations involved bench trials where the presiding judge became disabled before making findings of fact. See e.g., Brennan v. Grisso, 198 F.2d 532 (D.C.Cir.1952); Federal Deposit Insurance Corp. v. Siraco, 174 F.2d 360 (2d Cir.1949). These cases are distinguishable from the present one in which the Court’s function is to review the jury findings to determine if they are against the clear weight of the evidence. Rule 63 cannot be read to require a new trial in every case in which the presiding trial judge becomes disabled before passing on post-judgment motions and a non-prevailing litigant thereafter urges that the existence of credibility issues fairly resolved by the jury nonetheless entitle it to a new trial. Rather, it provides the successor judge with discretion to grant a new trial if he feels it is necessary in light of the entire record and nature of the credibility issue. Finally, in considering the motions for judgment notwithstanding the verdict and new trial, the parties have urged the successor judge to revisit certain rulings of Judge Steel. The general rule in this circuit and elsewhere is that “judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other.” TCF Film Corp. v. Gourley, 240 F.2d 711, 713 (3d Cir.1957). This is regarded as a “necessary rule of judicial comity to preserve the orderly functioning of the judicial process.” Id. at 714. This rule, however, “is not absolute and all-embracing in its scope.” United States v. Mathies, 350 F.2d 963, 964 (3d Cir.1965). There are “exceptional circumstances,” such as when the judge who made the original decision is, by death, resignation or disability, not available to reconsider his decision. In such a case, the successor judge is empowered to reconsider the previous ruling and reverse it if necessary. TCF Film, 240 F.2d at 714; see also, Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 168-70 (3d Cir.1982); United States Gypsum Co. v. Schiavo Brothers Inc., 668 F.2d 172, 177 (3d Cir.1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982). This Court will be guided by these general principles in reviewing rulings made by Judge Steel. Such rulings will not be disturbed unless this Court is satisfied that they were erroneous and are material to the issues currently at hand. III. Liability of CMOBC — Deception of the Jamaican Court A. Motion for Judgment Notwithstanding the Verdict CMOBC has moved for judgment notwithstanding the verdict on several grounds related to Interrogatory No. 4. First, defendant urges that the only permissible construction of the Special Verdict precludes a holding that separate corporate entities should be disregarded. Second, CMOBC contends that under Jamaican law, “no civil theory of recovery may be predicated in whole or in part upon allegedly false testimony in another judicial proceeding.” Third, CMOBC claims that it cannot reasonably be concluded from all the evidence that plaintiff established fraud by clear and convincing proof. Fourth, CMOBC contends that plaintiff’s proof is insufficient as a matter of law to support a finding that CMOBC controlled the alleged fraud on the court. These issues will be considered seriatim. 1. Legal Sufficiency of the Special Verdict So As to Permit the Separate Existence of CMOBC to Be Ignored Defendant restates its argument that since the jury found in Interrogatory No. 3 that CMOBC did not control Chase Jamaica’s wrongs referenced in Interrogatory Nos. 1 and 2, there can be no liability of CMOBC based on these wrongs. In essence, CMOBC contends that the jury’s affirmative answer to Interrogatory No. 4 is insufficient to justify disregarding the separate corporate entities and to hold CMOBC liable for the six million dollars in damages assessed by the jury. This argument was treated in this Court’s Judgment Opinion. The Court concluded that an affirmative answer to Interrogatory No. 4, encompassing as it does the fact that a misrepresentation occurred that deceived the Jamaican court into not issuing the injunction and that CMOBC controlled the making of that misrepresentation requires disregard of the separate corporate entities. Moreover, the Court held CMOBC would be liable for the full amount of damages, regardless of the jury’s finding of no control in Interrogatory No. 3. CMOBC is not entitled to judgment notwithstanding the verdict on this ground. If the jury’s findings in Interrogatory No. 4 are supported in the record, there is no reason to upset that determination. Conversely, if there has been a failure of proof, the verdict cannot stand. 2. The Existence of a Cause of Action for False Testimony in the Jamaican Court t CMOBC asserts that since under Jamaican law no civil theory of recovery can be predicated upon allegedly false testimony in another judicial proceeding, plaintiff’s paragraph 54 claim must fail. CMOBC did not raise this issue in its September 13, 1982 Answering Brief in Opposition to Plaintiff’s Proposal to Amend the Second Amended Complaint by Adding a New Paragraph 54 Thereto (Dkt. 524). As a result the question was not treated by Judge Steel in the opinion allowing Rose Hall’s amendment. (Dkt. 568, 9/30/82). Defendant first raised the issue on October 5, 1982, in its Motion to Dismiss Paragraph 54 Pursuant to Rule 12(b)(6) on the ground that it fails to state a claim upon which relief can be granted. (Dkt. 602). Hearing was held on October 7, 1982, and Judge Steel orally ordered “that the hearing [and] determination thereof be deferred until trial pursuant to Rule 12(d).” (Dkt. 663, p. 14). The ruling was formalized in an order dated. October 8, 1982 (Dkt. 654) and trial commenced on October 12, 1982. CMOBC again raised the issue in its November 30, 1982 Motion for a Directed Verdict and the accompanying briefs. (Dkt. 693, 694, 696, 697). Judge Steel again in effect deferred ruling on the issue by stating: “the motions will not be granted, but I can assure the litigants that when their motions for judgment N.O.V. [arise], if that should ever be required, very serious consideration will be given to those motions.” (Dkt. 809, Tr. 6442-43). Presently, the Court undertakes the promised serious consideration of CMOBC’s contention, a. Choice of Law As a preliminary matter, it must be determined which law governs the claim that Chase Jamaica, as a result of its control by CMOBC, perpetrated a fraud upon the Jamaican court. In a previous opinion in this case, Judge Steel held that Jamaican law governs the question of whether Chase Jamaica committed a fraud on the Jamaican court. (Dkt. 568, p. 7). Plaintiff now asserts that the tort law of some unspecified jurisdiction within the United States governs the liability of CMOBC. Plaintiff relies upon Judge Steel’s statement that the liability of CMOBC, as a stockholder, for the wrongs of its subsidiary is governed by the laws of the United States. (Dkt. 568, p. 8). In response, defendant correctly maintains that Judge Steel concluded, in his previous opinion, that under the Restatement (Second) of Conflict of Laws § 145 (1971) or the Delaware common law choice of law rule Jamaican law would govern the question of whether Chase Jamaica committed a fraud on the Jamaican court. Judge Steel further held that whether CMOBC, as a parent Edge Act corporation, should be liable for the wrongs of Chase Jamaica would be governed by the laws of the United States. (Dkt. 568, p. 7-8). This Court subscribes to Judge Steel’s holdings and further finds that even if plaintiff were attempting to hold CMOBC liable for the fraud upon the Jamaican court as a tortfeasor and not as the parent of Chase Jamaica, Jamaican law would govern. All of the events at issue with regard to the fraud took place in Jamaica. Under section 145 of the Restatement (Second), Jamaican law would clearly apply. The injury and the conduct causing the injury occurred in Jamaica. The relationship between Rose Hall and Chase Jamaica centered in Jamaica and Rose Hall never had any formal relationship with defendant CMOBC. The contacts of the parties with jurisdictions other than Jamaica are insufficient to warrant the application of their laws. Jamaican law would apply under the common law rule in Delaware as well. In the case of intentional torts, such as fraud, the lex loci delicti rule requires a court to apply the substantive law of the state or, in this case, country where the defendant’s wrongful conduct primarily occurred. See Johnston Associates, Inc. v. Rohm and Haas Co., 560 F.Supp. 916, 918 (D.Del.1983). It is beyond dispute that the fraud upon the Jamaican court occurred primarily, if not exclusively, in Jamaica. b. Jamaican Law Having determined that Jamaican law governs the plaintiff’s claim of fraud upon the court, the issue then becomes whether CMOBC can be held liable for the alleged fraud. This issue involves two questions: first, whether a cause of action against Edward C. Brown, Managing Director of Chase Jamaica, Chase Jamaica or CMOBC in tort for civil damages arising from the perjured testimony is recognized under Jamaican law, and, second, whether CMOBC could be liable, under a disregard of corporate entity theory, for the wrongs of Chase Jamaica. If the first question is answered in the negative, one theoretically cannot reach the second question. CMOBC argues that under Jamaican law no civil tort claim may be predicated in whole or in part upon allegedly false testimony in a judicial proceeding. Defendant asserts that Jamaican law forecloses a cause of action against a witness which is premised upon his statements made in court. Jamaican law, defendant also claims, forecloses holding anyone liable for the alleged perjury of another. Defendant concludes that even if Brown lied to the Jamaican court to the plaintiff’s prejudice, Jamaican law is clear that no civil tort liability can be based thereon against Brown, Chase Jamaica or CMOBC. In response, plaintiff maintains, without citing any authority, that “we doubt that [Jamaican law] goes as far as CMOBC suggests.” (Dkt. 696, p. 16). In addition, plaintiff argues that the non-final nature of the Jamaican court’s denial of the plaintiff’s motion to enjoin the sale at issue precludes operation of Jamaican law prohibiting civil suits for damages arising from perjury. Upon review of the authorities cited by the defendant and independent examination of English and Jamaican law, the Court holds that under Jamaican law the plaintiff’s claim against CMOBC for fraud upon the court fails to state a valid cause of action. Under Jamaican law, allegations of false testimony in a prior proceeding cannot be made part of any cause of action against a witness, a party, or a non-party, such as CMOBC. The law in Jamaica and England is that the testimony of a witness in a judicial proceeding is absolutely privileged from any subsequent civil action for damages. A witness is protected from civil proceedings in respect of the evidence which he gives in judicial proceedings, and in respect of things said or done in the course of preparing evidence for such proceedings. The protection is against actions of any sort, and is not limited to actions for libel and slander. 17 Halsbury’s Laws of England, Evidence, 11261 at 182 (4th ed. 1976) (footnotes omitted) (Dkt. 770A, Ex. N); see Trapp v. Mackie, [1979] 1 All E.R. 489, 490-91, 497 (House of Lords) (Dkt. 694, Ex. K); Marrinan v. Vibart, [1962] 1 All E.R. 869, 871 (Queen’s Bench), opinion adopted and affd, [1962] 3 All E.R. 380 (Court of Appeal) (Dkt. 694, Ex. G); Hargreaves v. Bretherton, [1958] 3 All E.R. 122, 123, 125 (Queen’s Bench) (Dkt. 694, Ex. G); Watson v. McEwan, Watson v. Jones, [1905] AC 480, 486 (House of Lords) (Dkt. 694, Ex. L). Recently, the Court of Appeal in Jamaica reaffirmed this fundamental rule: The rule of law is that what is said in the course of the administration of the law is privileged; and the reason of the rule covers counsel, judge, parties and witnesses who in this respect are all equally protected. Bodden v. Brandon, [1965] Gleaner Law Reports 199, 203 (citation omitted). (Dkt. 694, Ex. C). One of the principal purposes of the rule is to prevent disgruntled litigants from bringing vexatious suits against witnesses. As one court stated: The rule of law exists, not because the conduct of those persons ought not of itself to be actionable, but because if their conduct was actionable, actions would be brought against judges and witnesses in cases in which they had not spoken with malice, in which they had not spoken with falsehood. It is not a desire to prevent actions from being brought in cases where they ought to be maintained that has led to the adoption of the present rule of law; but it is the fear that if the rule were otherwise, numerous actions would be brought against persons who were merely discharging their duty. It must always be borne in mind that it is not intended to protect malicious and untruthful persons, but that it is intended to protect persons acting bona fide, who under a different rule would not be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions. Marrinan v. Vibart, [1962] 3 All E.R. at 382 (quoting Munster v. Lamb, [1883] 11 Q.B.D. 588, 607). The rule also serves to avoid a multiplicity of actions in which the value or truth of the evidence would be tried over again. Trapp v. Mackie, [1979] 1 All E.R. at 497. Thus, it is clear that under Jamaican law, a civil damage action for perjury could not be brought against Brown. This immunity would clearly extend to Brown’s employer, Chase Jamaica. Brown was not testifying in a personal capacity but as a representative of Chase Jamaica. Interrogatory No. 4 asks whether Chase Jamaica, not Brown, deceived the Jamaican court into not enjoining the sale of the collateral. A corporate entity can only speak through a representative. To hold that a witness testifying on behalf of a corporation is immune but that the corporation he represents may be liable would render the witness immunity rule meaningless in any case involving an entity rather than an individual. As stated above, one of the articulated current principal purposes of the rule is to protect witnesses from the vexation of defending actions brought by disappointed litigants. Any corporation who sent a representative to testify at a judicial proceeding would be subject to suit if the immunity of its witness-representative did not extend to the corporation itself. See Evans v. London Hospital Medical College, [1981] 1 All E.R. at 721 (Court found that witnesses and their employer enjoyed absolute immunity from suit in action for negligence and malicious prosecution premised upon statements made in preparation for criminal prosecution). Having held that a cause of action against Brown and Chase Jamaica for perjury would not be valid under Jamaican law, the question remains whether CMOBC could be held liable for the alleged fraud on the court. This question requires a determination of whether the immunity enjoyed by an actual witness extends to third parties who did not testify at trial but who are alleged to have been involved in a scheme to perpetrate a fraud upon a court by procuring the false testimony of a witness. The parties have not cited nor has the Court found a Jamaican or English case that directly addresses this issue. An examination of the relevant authorities, however, indicates that a cause of action for fraud upon a court which is brought against a non-testifying third party would not be recognized under Jamaican law. In Marrinan v. Vibart, [1962] 1 All E.R. at 871, the Court held that a plaintiff’s claim for conspiracy to make false and defamatory statements was invalid wheye the claim was premised in part upon the statements made by the defendants in preparation for and at trial. The defendants were two police officers who were alleged to have conspired with another person to injure the plaintiffs reputation by making false and defamatory statements which were incorporated in evidence introduced at trial. While the Court did not address the issue of the liability of a non-witness, the reasoning of the Court supports the conclusion that a cause of action against a non-participant, such as CMOBC, could not be premised upon a witness’s statements introduced at trial. The Court found that the immunity rule could not be circumvented where the plaintiff’s cause of action was premised in part upon the witnesses’ allegedly perjured testimony. The Court stated that: The main contention on behalf of the plaintiff is that the gist of this action is not the defamatory statements made to the Director of Public Prosecutions, nor their repetition in evidence, but the antecedent combination or agreements to defame. It is argued that there is no authority for extending any immunity to such an agreement or combination. If, contrary to my judgment, the contention were correct that the gist of the tort of conspiracy is the conspiratorial agreement alone, it may be that the plaintiff would be entitled to succeed on this preliminary issue. In my view, however, this contention is plainly wrong; the gist of the tort of conspiracy is not the conspiratorial agreement alone, but that agreement plus the overt act causing damage. It is true that the crime of conspiracy is the very agreement of two or more persons to effect an unlawful purpose, and any overt acts done in pursuance of the agreement are merely evidence to prove the fact of the agreement. The tort of conspiracy, however, is complete only if the agreement is carried into effect so as to damage the plaintiff. Accordingly, the acts done in pursuance of the agreement are an integral part of the tort: Crofter Hand Woven Harris Tweed Co., Ltd. v. Veitch. It follows, therefore, that the plaintiff relies for part of his cause of action on the report of the defendants to the Director of Public Prosecutions and the evidence which they subsequently gave. These matters, by reason of the principles laid down in the authorities to which I have referred, cannot properly be made part of any cause of action. Id. at 871 (citation omitted). In the instant case, plaintiff’s cause of action against CMOBC, set forth in Interrogatory No. 4, is based upon Brown’s testimony given before the Jamaican court. The wrong alleged in the plaintiff’s cause of action could only have been completed upon Brown’s testifying. Since the plaintiff’s cause of action set forth in Interrogatory No. 4 is premised on the fraud upon the court, it is unlikely that a Jamaican court would permit such a claim even though CMOBC was not a witness at trial. The purposes underlying the rule warrant its application to non-participants as well as to participants at trial. If causes of action against non-participants were recognized, then disgruntled litigants would merely sue non-participants who had some relationship to the witness who allegedly testified falsely. Witnesses would be faced with the prospect that their testimony would form the basis of vexatious litigation directed against parties related to them who did not participate at the trial. Moreover, the purpose of avoiding multiplicity of actions in which the value or truth of evidence would be tried over again would be substantially diminished if the immunity rule could be circumvented merely by alleging that non-participants at trial were somehow involved in the witness’s fraudulent conduct before a court. Finally, logic dictates that if a subsidiary cannot be held liable for a fraud on a court, the parent similarly cannot be liable. The inquiry must always turn on the reason and facts for which the separate corporate entities are sought to be ignored. If the underlying reason or facts are not actionable against the subsidiary, they likewise cannot be actionable against the parent through the device of ignoring the existence of separate corporate entities. Disregard of the corporate entity simply constitutes a method to hold a parent liable for the acts of its subsidiary. The theory does not, in and of itself, confer any additional substantive rights upon a plaintiff. c. American Law Having held Jamaican law governs the issue as presented to the jury in Interrogatory No. 4 and Jamaican law precludes liability by reason of immunized testimony, the inquiry is theoretically at an end. However, plaintiff contends the question presented to the jury in Interrogatory No. 4 was not an action based upon perjured testimony but upon the question of whether the corporate entities should be disregarded. Rose Hall claims that this issue is controlled by United States law. Specifically, Rose Hall asserts that defendant’s characterization of plaintiff’s theory is unduly restrictive. Plaintiff argues that its theory of alternative liability had its genesis in paragraph 54 of the Second Amended Complaint and is not based upon false testimony in the Jamaican action, but rather simply established the false testimony as a predicate for disregard of the corporate entity. Plaintiff urges a “broad fraud” theory that: under all the circumstances, the defeat of Rose Hall’s injunction by representations which (whatever the subjective intent with which they were made) were false in fact, combined with the subsequent stripping of Chase Jamaica, and the attempt to defeat Rose Hall’s claims for damages by asserting Chase Jamaica’s purported separateness here, taken together, constitute a fraud or injustice by means of the corporate entity which equity will prevent by disregarding the corporate entity. (Dkt. 868, pp. 15-16) (emphasis in original). Plaintiff’s paragraph 54 “broad fraud” theory is composed of the following five elements: first, Chase Jamaica’s cheap sale of the land and shares (Interrogatory No. 1) and refusal to cooperate in the lawsuit against Holiday Inns for interference (Interrogatory No. 2); second, false representations to the Jamaican court during the injunction proceedings that Chase Jamaica had substantial assets, would continue to do business in Jamaica and would be in a position to pay whatever damages might be awarded to Rose Hall; third, the Jamaican court’s reliance on these representations in denying the plaintiff’s petition to enjoin the sale; fourth, the closing and “stripping” of Chase Jamaica' pursuant to plans in existence prior to the injunction hearings; fifth, CMOBC’s manipulation of Chase Jamaica’s defense of the Jamaican damage action in resisting plaintiff’s attempt to stay that action pending resolution of the Delaware litigation. Rose Hall contends that these separate events, when aggregated, constitute fraud or injustice by means of purported separate corporate entities which equity will not allow. Even if one started with Rose Hall’s statement of the issue, plaintiff could not prevail for two independent reasons: first, examination of the trial record demonstrates unequivocally that plaintiff’s characterization is erroneous in that the deceit on the Jamaican court was considered pivotal by all concerned; and second, given the central and critical nature of the false testimony to the Jamaican court, the American rule on witness immunity precludes this suit as presented. (1) Deceit on the Jamaican Court as Pivotal In allowing amendment of the complaint to add paragraph 54 on September 30, 1982, Judge Steel characterized the amendment as embodying plaintiffs “alternative fraud theory.” (Dkt. 568, p. 2). As of the date of amendment, the fraud on the Jamaican court had become central. Judge Steel characterized plaintiff’s position as “plaintiff’s theory that the relationship between Chase Jamaica and its parent, [CMOBC], was such that this fraud, if proven, was relevant when considered with other evidence to render [CMOBC] liable____” (Dkt. 568, p. 1). At the time of allowance of the amendment, less than two weeks before trial commenced, it is fair to say that Judge Steel and the parties were already proceeding on the premise that plaintiff’s alternative theory of liability was not viable but for the deceit on the Jamaican court. This was confirmed by plaintiff during its day and a half summation to the jury. Plaintiff, in addressing the alternative theory of liability contained in Interrogatory No. 4, argued the deceit on the Jamaican court without referencing other aspects of paragraph 54, much less the theory now urged upon the Court. (Dkt. 853, Tr. 14,-900-905; Dkt. 856, Tr. 15,388). Moreover, plaintiff’s request for charge on Interrogatory No. 4, adopted almost verbatim by Judge Steel with the addition of a requirement of control by CMOBC, trains exclusively upon the deception of the Jamaican court. Finally, Interrogatory No. 4 inquired of the Jury: “4. Did Chase Jamaica, through its representations, as a result of its control by CMOBC, deceive the Jamaican court into not enjoining the sale of the collateral?” Supra p. 121. Since this interrogatory embodied plaintiffs theory of liability contained in paragraph 54 as presented to the jury, it is not surprising that plaintiff never objected to the form of Interrogatory No. 4 other than to the imposition of the control requirement. Accordingly, given its request for instruction on Interrogatory No. 4, there has been a waiver of the characterization of the theory it now vehemently asserts. Cf. Reiner v. Bankers Security Corp., 305 F.2d 189 (3d Cir.1962); Halprin v. Mora, 231 F.2d 197 (3d Cir.1956). Based upon the early characterization by Judge Steel, plaintiffs request for charge, plaintiffs summation and plaintiffs failure to object to the form of Interrogatory No. 4, the Court concludes that defendant’s characterization of the issue as tried and presented to the jury is far more accurate than that urged by plaintiff. Notwithstanding plaintiff’s protestations, it is inescapable that deceit on the Jamaican court was pivotal to plaintiff’s formulation and ultimate jury presentation. Actionability of deceit on the Jamaican court is controlled by Jamaican law, supra pp. 127-128, and that law would preclude the cause of action as tried to the jury and embodied in Interrogatory No. 4, supra pp. 128-130. Thus far, the Court has held Jamaican law controls the existence of the cause of action embodied in Interrogatory No. 4 and the competing characterizations of the cause of action must be resolved in favor of defendant. However, even if American law controlled, the outcome would be the same because of plaintiff’s inability to surmount the American rule of witness immunity. (2) The American Rule of Witness Immunity as Precluding Suit The Supreme Court has very recently articulated its recognition that “[t]he immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law.” Briscoe v. Lahue, — U.S.-, 103 S.Ct. 1108, 1113, 75 L.Ed.2d 96 (1983) (footnote omitted). The Supreme Court held that this rule has been imported into the American common law. Id. at 1113-15. Since the rationale for the American rule is largely the same as that for the English rule, the Court assumes the American rule would be applicable to third parties such as CMOBC. Unlike their English counterpart, some American jurisdictions have recognized an exception to the rule that perjury is non-actionable in a subsequent suit for money damages. The exception to the rule is where perjury is merely a means to the accomplishment of a larger conspiracy or fraudulent scheme. Assuming without deciding that the minority exception to the American witness immunity rule would be applicable, Rose Hall fails to come within the exception because as pleaded and presented there was no larger fraudulent scheme other than that factually asserted before the Jamaican court. The “cheap” sale and a significant portion of the interference claim were factually presented to the Jamaican court in the injunction proceeding. (PX 140, pp. 4-6, 10-13). The false representation on cross-examination was made to the Jamaican court during the injunction proceeding and the Jamaican court relied upon the same in denying the preliminary injunction. With regard to the alleged manipulation of the stay proceeding in Jamaica, Judge Steel had previously ruled: I do not find that the action which Chase Overseas [CMOBC] is alleged to have taken in the appellate court in Jamaica constitutes fraud. It was nothing more than [an] attempt to have the action tried in Jamaica rather than in Delaware. Plaintiff has made efforts in Delaware to have the action tried here rather than Jamaica. I do not consider the actions by either of the parties as to jurisdiction choice to be fraudulent. (Dkt. 652, p. 1). There has been no demonstration that this ruling should be disturbed. Only Rose Hall’s assertion that Chase Jamaica somehow did something wrong when it sold its assets following its closing remains. Plaintiff’s inflammatory label of “stripping the assets” obscures reality. Plaintiff'does not dispute that CMOBC did not in any way profit or receive any assets from the “stripping” which in reality consisted of selling off Chase Jamaica’s loan portfolio and paying off its non-contingent creditors, including other Chase entities. There is nothing remotely approaching fraud in a wholly owned subsidiary paying off creditors upon closing its business even though there is outstanding a contingent claim to be resolved at some future time via the vagaries of the litigation process. Plaintiff has failed to establish a larger fraudulent scheme of which the perjury was only a part. Given the jury’s answers to all other interrogatories, Rose Hall’s tenuous claim to recovery from CMOBC rests entirely upon the misrepresentation to the Jamaican court and that court’s denial of the preliminary injunction based upon that misrepresentation. Having failed to come within the exception to the American witness immunity rule, the Court concludes Rose Hall’s cause of action embodied in Interrogatory No. 4 would be barred. In summary, the Court concludes that the deception found by the jury in its affirmative answer to Interrogatory No. 4 is not actionable. The gravamen underlying Interrogatory No. 4 is properly characterized as seeking monetary damages by reason of a false representation made in a prior Jamaican judicial proceeding. Such a misrepresentation cannot serve as a basis for a cause of action under Jamaican, English or American law including the exception to the American rule. As a consequence, CMOBC is entitled to entry of judgment notwithstanding the verdict. Nonetheless, the Court will consider CMOBC’s other arguments for judgment notwithstanding the verdict with respect to Interrogatory No. 4. 3. Was a Fraud Established Plaintiff alleges that the deception on the Court included Brown’s false representation to the effect that Chase Jamaica would be continuing in business as well as statements by counsel for Chase Jamaica, Norman Hill, to the effect that Chase Jamaica would be ready and able to respond in damages to any subsequent finding of liability resulting from the sale. Plaintiff, however, has failed to present any authority for the proposition that counsel’s arguments to the court can be considered evidence on which to base a fraud on the court claim. In addition, there is no evidence of record linking Hill’s statements to the Jamaican court with CMOBC. Therefore, the court’s examination of the fraud claim focuses on Brown’s representation to the Jamaican court. The evidence of the specific content of Brown’s statement is surprisingly scarce and contradictory. The parties agree that the statement was made in answer to a single question on cross-examination of Brown by Dr. Lloyd Barnett, Rose Hall’s counsel in the Jamaican proceeding. The issue then in essence is whether plaintiff has proved deception of the Jamaican court, under either the clear and convincing evidence standard or the preponderance of the evidence standard. Stated differently, the issue is whether one answer, the precise content of which is unknown, to one quest