A. Standard of Review

"A verdict may be set aside and new trial ordered 'when the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a clear miscarriage of justice.'" Phav v. Trueblood, Inc. , 915 F.2d 764, 766 (1st Cir. 1990) (quoting Torres-Troche v. Municipality of Yauco , 873 F.2d 499 (1st Cir. 1989)); see Fed. R. Civ. P. 59(a); Sánchez v. Puerto Rico Oil Co. , 37 F.3d 712, 717 (1st Cir. 1994). In reaching its decision, "the district court has broad legal authority to determine whether or not a jury's verdict is against the 'clear weight of the evidence.'" Vda. de Pérez , 910 F.2d at 1006. Nonetheless, "the trial judge's discretion, although great, must be exercised with due regard to the rights of both parties to have questions which are fairly open resolved finally by the jury at a single trial." Coffran v. Hitchcock Clinic, Inc. , 683 F.2d 5, 6 (1st Cir.), cert. denied , 459 U.S. 1087 (1982); see Kearns v. Keystone Shipping Co. , 863 F.2d 177, 178-79 (1st Cir. 1988). Thus, the district court judge "cannot displace a jury's verdict merely because he disagrees with it or would have found otherwise in a bench trial." Milone , 847 F.2d at 37; see Coffran , 683 F.2d at 6. "The mere fact that a contrary verdict may have been equally -- or even more easily -- supportable furnishes no cognizable ground for granting a new trial." Freeman v. Package Mach. Co. , 865 F.2d 1331, 1333-34 (1st Cir. 1988).

Our review is circumscribed: we will disturb the district court's ruling on appellant's motion for a new trial only where there has been a clear abuse of discretion. See Simon v. Navon , 71 F.3d 9, 13 (1st Cir. 1995); Newell Puerto Rico, Ltd. v. Rubbermaid Inc. , 20 F.3d 15, 22 (1st Cir. 1994).

In order to determine whether such an abuse occurred here, we must review the record below. We do this not in the role of "a thirteenth juror," assessing the credibility of witnesses and weighing testimony, but rather to isolate the factual basis for the trial court's ruling and provide the foundation for our action today.

Kearns , 863 F.2d at 179. "So long as a reasonable basis exists for the jury's verdict, we will not disturb the district court's ruling on appeal." Newell Puerto Rico, Ltd. , 20 F.3d at 22.

With our standard of review established, we turn to Scholz' argument and the record below. We address each of the two breach of contract claims the jury decided in turn.

B. Did Ahern Breach the FMA?

Scholz argues that Ahern breached his obligations under the 1981 FMA to both account for and pay to Scholz, every six months, his share of the royalties from the compositions on the first and second albums: indeed, Ahern admitted at trial that he had failed to make some payments he owed Scholz under the FMA. The jury and the trial court disagreed with Scholz, however, and found that Ahern's breach of the FMA was not material. [1]  

The term "performance" contains within it substantial performance. Namely, if a person has substantially performed, that, in the eyes of the law, is full performance of one's obligations. So when I've used the term "performance" or "breach of the obligations," just include within those concepts the question of what is the definition of the term "substantial performance" or "substantial breach." The question facing us, then, is whether the district court abused its discretion in finding that the jury's decision was not against the weight of the evidence. After careful review of the record, we find no abuse of discretion in the lower court's decision not to disturb the jury's finding.

Scholz argues at some length on appeal that Ahern's breach was by definition material, both for his failure to account and his failure to pay. As for the first contention, we note that while Scholz' reading of the FMA as requiring that Ahern render Scholz direct accountings every six months is a convincing one, it is not the only plausible one. Indeed, Ahern contends that the FMA only required him to send irrevocable letters of direction to various entities involved directing them to send Scholz his share of the royalties when collected. In the end, it would not be against the clear weight of the evidence to find that letters of directions would satisfy Ahern's accounting obligations under the FMA, and that such letters were sent. Therefore, Ahern's failure to account every six months was not a material breach.

As for the second contention, Scholz supports his position that Ahern's failure to pay constitutes a separate, material breach by drawing on both New York [2] and Massachusetts case law. He points to the Second Circuit's refusal to overturn summary judgment in ARP Films, Inc. v. Marvel Entertainment Group, Inc. , 952 F.2d 643, 649 (2d Cir. 1991). In that case, where plaintiffs failed to account and pay royalties in excess of $400,000, the court stated that  the district court correctly concluded that the breach by plaintiffs in failing to make the payments and provide the reports required . . . was material as a matter of law, thus authorizing Marvel to terminate the contract. [The parties' agreement] explicitly singled out plaintiffs' obligation to provide "prompt accounting" for distributions as a term and condition of the agreement, the substantial breach of which authorized Marvel to terminate the license provided by the agreement. In addition, failure to tender payment is generally deemed a material breach of contract. Finally, as the district court found, and the subsequent accounting confirmed, the amounts withheld from Marvel by plaintiffs were very substantial.

Id. (citations omitted). Scholz also points to a New York case holding that a licensee's failure to pay franchise fees totalling $40,129 over four months constituted a breach of contract, McDonald's Corp. v. Robert Makin, Inc. , 653 F. Supp. 401, 402-04 (W.D.N.Y. 1986), as well as Massachusetts language indicating that "[a] material breach of an agreement occurs when there is a breach of 'an essential and inducing feature of the contract.'" Lease-it, Inc. v. Massachusetts Port Auth. , 600 N.E.2d 599, 602 (Mass. App. Ct. 1992) (holding that six-month refusal to pay concession and rental fees was a material breach) (quoting Bulcholz v. Green Bros. Co. , 172 N.E. 101 (Mass. 1930)). Scholz argues that Ahern's breach, spanning thirteen years, is more egregious than these cases of a six-month failure to pay concession and rental fees, four-month failure to pay license and lease fees, and seven-month failure to pay (and five-month failure to account). [3] Therefore, Scholz concludes, Ahern's failure to pay Scholz at least $459,000 is clearly a substantial breach.