IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60116

Summary Calendar

Mississippi Phosphates Corporation

Plaintiff–Appellee

v.

Analytic Stress Relieving, Incorporated

Defendant–Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

1:07-CV-1140

Before WIENER, PRADO, AND OWEN, Circuit Judges.

PER CURIAM:

*

This appeal arises from a jury trial where Mississippi Phosphates

Corporation (MPC) and Furnace & Tube Service, Inc., MPC’s contractor, sued

Analytic Stress Relieving Corp., Furnace & Tube’s subcontractor, for damages

incurred after a failed attempt to repair a boiler. Analytic Stress raises four

issues on appeal: whether the district court abused its discretion in (1) failing to

grant Analytic Stress a remittitur on the excessive damages awarded when MPC

United States Court of Appeals

Fifth Circuit

F I L E D

October 15, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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failed to prove damages with reasonably certainty as required by Mississippi

law, (2) failing to exclude expert testimony by Dr. Kendall Clarke, (3) prohibiting

Analytic Stress from eliciting testimony that MPC had settled its case against

former co-defendant F&T, and (4) refusing to substitute MPC as the real party

in interest in the breach of contract claim against Analytic Stress. The district

court did not abuse its discretion. We affirm the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff–Appellee Mississippi Phosphates Corporation (MPC) is a

manufacturer and purveyor of diammonium phosphate fertilizer (DAP). On July

2007, MPC discovered that No. 1 Waste Heat Boiler at one of its plants needed

repair and contracted Furnace & Tube Service, Inc.(F&T) to repair it with an

agreed completion date of August 2, 2007. F&T subcontracted

Plaintiff–Appellant Analytic Stress Relieving, Inc. (Analytic Stress) to heat-treat

the welds joining the new tube sheets to the boiler. In the course of treating the

welds with extreme heat, both new tube sheets warped because the metal to be

heated was not a uniform, one-inch thickness as the repairers assumed. The

warping led to a delay in the repair of the boiler, which prevented MPC from

producing DAP during this downtime. MPC sued F&T and Analytic Stress for

lost profits from DAP sales and additional expenses attributable to the downtime

caused by the warped sheet, and also sued F&T for damages from additional

leaks and downtime after the boiler was returned to service. F&T in turn filed

a cross-claim against Analytic Stress for labor, materials, and equipment that

F&T had paid for in replacing the warped tube sheets.

Just before trial was to begin in September 2009, MPC, F&T, and F&T’s

primary insurance carrier, The Gray Insurance Company (Gray), reached a

settlement agreement. In the agreement: Gray Insurance and F&T agreed to

pay MPC a combined $4.2 million; F&T and Gray continued to deny all liability

with respect to the warped tube sheets; and F&T agreed to assign to MPC all of

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F&T’s rights and claims against Analytic Stress and its insurers. The district

court severed the leak claims from the claims concerning the warped tube sheets

at MPC and F&T’s request and granted a week continuance at Analytic Stress’s

request. The district court also realigned F&T from defendant to plaintiff.

Analytic Stress moved to substitute MPC as the real party of interest in

F&T’s breach of contract claim against Analytic Stress before jury trial began on

October 5, 2009 and objected again during trial to the district court allowing

F&T appear as a party with separate counsel given the assignment of the chose

in action. The district court denied the request, overruled the objection, and

allowed MPC to prosecute the negligence claim against Analytic Stress and F&T

to prosecute the breach of contract claim, each with its own separate counsel.

On October 6th, MPC made an ore tenus motion to exclude testimony

regarding the settlement agreement. Analytic Stress protested. The district

court prohibited the parties from eliciting testimony about the settlement

agreement or amount, but allowed the parties to elicit testimony that F&T was

previously a defendant in the case, and that F&T had assigned any recovery

from the breach of contract claim against Analytic Stress to MPC.

During the trial, Analytic Stress objected to the testimony given by MPC’s

metallurgy and heat treatment expert, Dr. Kendall Clarke, that Analytic Stress’s

post-weld heat treatment procedures did not comply with the industry standard

of care. Analytic Stress objected on the ground that Clarke did not have the

requisite practical knowledge or specialized education to testify on post-weld

heat treatment procedures. The district court overruled the objection.

Trial concluded on October 9, 2009. The jury returned a verdict in favor

of MPC in the amount of $3,101,506.36 for the damages caused by the warped

tube sheets, apportioning sixty percent of the liability to F&T and forty percent

to Analytic Stress. In F&T’s cross claim against Analytic Stress, the jury found

that Analytic Stress had breached its contract, but awarded zero damages. The

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district court then entered the final judgment in favor of MPC against Analytic

Stress in the amount of $1,240,602.55.

On October 23, 2009, Analytic Stress filed a Renewed Motion for Judgment

as a Matter of Law and Alternative Motions for Remittitur or New Trial.

Analytic Stress requested the district court exclude the testimony of Dr. Clarke

regarding whether Analytic Stress had breached its duty of care in its post-weld

heat treatment. In the alternative, Analytic Stress requested the district court

grant a remittitur of the entire amount of damages alleged by MPC as lost

profits because MPC had failed to prove those losses with reasonable certainty.

Also in the alternative, Analytic Stress requested that the district court grant

a new trial because of the unfair prejudice and irreparable harm caused by

allowing both MPC and FTC remain as parties and allowing both MPC and FTC

to have separate counsel and prohibiting the parties from disclosing that MPC

settled its claims against F&T. The district court denied these motions on

January 27, 2010. Analytic Stress timely appealed.

II. DISCUSSION

Analytic Stress raises four issues on appeal. Analytic Stress argues that

the district court erred by (1) failing to grant Analytic Stress a remittitur on the

excessive damages awarded when MPC failed to prove damages with reasonably

certainty as required by Mississippi law, (2) failing to exclude expert testimony

by Dr. Clarke, (3) prohibiting Analytic Stress from eliciting testimony that MPC

had settled its case against former co-defendant F&T, and (4) refusing to

substitute MPC as the real party in interest in the breach of contract claim

against Analytic Stress. We address each issue in turn.

A. Remittitur

1. Standard of Review

We review a denial of new trial or remittitur for abuse of discretion.

Foradori v. Harris, 523 F.3d 477, 497–98 (2008). In Gasperini v. Center for

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Humanities, Inc., 518 U.S. 415 (1996), the Supreme Court held that “in an action

based on state law but tried in federal court by reason of diversity of citizenship,

a district court must apply a new trial or remittitur standard according to the

state’s law controlling jury awards for excessiveness or inadequacy, and

appellate control of the district court’s ruling is limited to review for ‘abuse of

discretion’” Foradori, 523 F.3d at 497–98 (citations omitted); see also Gasperini,

518 U.S. at 419, 438–39 (citations omitted). In accordance with Gasperini and

our precedent in Foradori, “we must review the district court’s decision applying

the . . . Mississippi new trial/remittitur standard to the evidence in this case to

determine whether the district court abused its discretion.” Foradori, 523 F.3d

at 498. Because “trial judges have the unique opportunity to consider the

evidence in the living courtroom context, . . . while appellate judges see only the

cold paper record . . . [, w]e must give the benefit of every doubt to the judgment

of the trial judge.” Gasperini, 518 U.S. at 438–39 (internal quotations and

citations omitted); Foradori, 523 F.3d at 498 (internal quotations and citations

omitted). “‘When the trial judge has refused to disturb a jury verdict, all the

factors that govern our review of his decision favor affirmance.’” Foradori, 523

F.3d at 504 (quoting Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.

1982)) .

2. Discussion

Analytic Stress argues that the verdict was excessive and contrary to the

weight of credible evidence because MPC failed to prove it had lost profits with

reasonable certainty. Analytic Stress thus argues that the jury award of

$3,097,540 must be remitted. Given the exceedingly deferential standard of

review for denial of new trial or remittitur and the record presented here, we

disagree and affirm the district court’s decision to deny remittitur.

A remittitur is an “order awarding a new trial, or a damages amount lower

than that awarded between those alternatives . . . .” BLACK’S LAW DICTIONARY

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1321 (Bryan A. Garner, 8th ed. 1999). Thus, before a court may order a

remittitur, “it must first determine that new trial is warranted.” Foradori, 523

F.3d at 503. “Except in those cases in which it is apparent as a matter of law

that certain identifiable sums included in the verdict should not have been there,

the court may not reduce the amount of damages without giving the plaintiff the

choice of a new trial, for to do so would deprive the parties of their constitutional

right to a jury.” Id. (citations omitted). Id. The statutory standard for granting

a new trial or remittitur under Mississippi law provides:

The supreme court or any other court of record in a case in which

money damages were awarded may overrule a motion for new trial

or affirm on direct or cross appeal, upon condition of an additur or

remittitur, if the court finds that the damages are excessive or

inadequate for the reason that the jury or trier of the facts was

influenced by bias, prejudice, or passion, or that the damages

awarded were contrary to the overwhelming weight of credible

evidence. If such additur or remittitur be not accepted then the

court may direct a new trial on damages only. If the additur or

remittitur is accepted and the other party perfects a direct appeal,

then the party accepting the additur or remittitur shall have the

right to cross appeal for the purpose of reversing the action of the

court in regard to the additur or remittitur.

MISS. CODE. ANN. § 11-1-55 (emphasis added). In the instant case, the appellant

argues that the damages awarded were contrary to the weight of credible

evidence. We will not reverse a jury verdict for excessiveness except on “‘the

strongest of showings.’” Foradori, 523 F.3d at 504. “‘Absent an error of law, the

reviewing court will sustain the amount of damages awarded by the fact finder,

unless the amount is clearly erroneous or so gross or inadequate as to be

contrary to right reason.’” Vogler v. Blackmore, 352 F.3d 150, 154 (5th Cir. 2003)

(quoting Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir. 2003)).

Under Mississippi law, a party is entitled to damages for lost profits where

it can “establish the claim with reasonable certainty, not based on mere

speculation and conjecture.” Warren v. Derivaux, 2007-CA-00905-SUPREME

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COURT (¶ 20), 996 So.2d 729, 737 (Miss. 2008) (citing Lovett v. E.L. Garner,

Inc., 511 So.2d 1346, 1353 (Miss. 1987)). Damages are only speculative when

“the cause is uncertain, not when the amount is uncertain.” Warren, 996 So.2d

at 737 (citing Parker Tractor & Implement Co. v. Johnson, 98-CA-00457-

SUPREME COURT (¶24), 819 So.2d 1234, 1239 (Miss. 2002). “When loss is

realized, but ‘the extent of injury and the amount of damage are not capable of

exact and accurate proof,’ damages may be awarded if the evidence lays ‘a

foundation which will enable the trier of fact to make a fair and reasonable

estimate of the amount of damages.’” Warren, 996 So.2d at 737 (quoting Cain v.

Mid-South Pump Co., 458 So.2d 1048, 1050 (Miss. 1984)) (emphasis in the

original).

Here, there was adequate evidence from which the jury could have

concluded that MPC lost profits because of the additional downtime caused by

the warped tube sheets. Because of the warped tube sheets, MPC’s plant was

down an extra sixteen days, and DAP production was stopped. There was

testimony, both from the selling and buying side of DAP transactions, that MPC

could have sold all of the DAP that it could have produced during the sixteen-day

downtime. Rich Bohls, of Transammonia, Inc. (TRAMMO), MPC’s largest

customer, testified that the fertilizer market during August 2007 was very

strong with high demand for DAP. Mr. Bohls went on to testify that TRAMMO

would not only have purchased the 19,000 tons of DAP lost during the downtime,

but as much as MPC could have provided. Additionally, MPC presented

evidence that TRAMMO was committed by contract to purchase up to 400,000

tons, plus or minus ten percent, of DAP from MPC during 2007. Steve

Wehmann, Vice President of Sales and Marketing of MPC, testified that

TRAMMO only ended up buying approximately 320,000 tons during 2007.

Additionally, George Panzeca, Analytic Stress’s own C.P.A. expert, stated that

in August 2008, “demand was strong, and there was an ability for [MPC] to sell

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the product.” Jim Koerber, MPC’s C.P.A., testified that he calculated the lost

profits due to the 16 days of lost production to be $3,097,540. The evidence

presented was adequate enough such that a jury could form a fair and

reasonable assessment of the amount that MPC lost in profits.

Analytic Stress argues that given that there was 20,000 tons of DAP in

inventory at the end of August that the amount awarded is contrary to right

reason. However, given the evidence presented, it was up to the jury to weigh

the evidence presented and decide whether the 20,000 tons in inventory was

evidence that MPC had not lost profits during the downtime or whether that

inventory was being saved to meet another contractual obligation, and thus that

MPC could have sold the lost DAP to TRAMMO and still fulfilled its other

orders. Given the adequacy of the evidence upon which a jury could calculate a

damages award, and the fact that the amount awarded by the jury was not so

clearly “erroneous or gross” as to be “contrary to right reason,” we find that the

district court did not abuse its discretion in deciding not to disturb the jury

award and denying remittitur.

B. Expert Testimony

1. Standard of Review

We review the district court’s decision to admit or exclude expert

testimony for abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137,

152 (1999); Vogler, 352 F.3d at 153. The district courts “enjoy wide latitude in

determining the admissibility of expert testimony, and ‘the discretion of the trial

judge and his or her decision will not be disturbed on appeal unless ‘manifestly

erroneous’.” Watkins v. Telesmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997)

(quoting Eiland v. Westinghouse Elec., 58 F.3d 176, 180 (5th Cir. 1995) (citation

omitted)). Additionally, we likewise also apply the abuse-of-discretion standard

to “the trial court’s decisions about how to determine reliability.” Kumho, 526

U.S. at 152 (emphasis added).

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2. Analysis

In pre-trial and post-trial motions and in the appeal before us, Analytic

Stress argues that the district court erred in failing to exclude Dr. Clarke’s

testimony regarding his opinion that Analytic Stress did not comport with the

industry standard of care. Analytic Stress argues that Dr. Clarke’s lack of

practical experience or specialized academic knowledge in post-weld heat

treatment disqualifies him as an expert in this area, and therefore that the

district court abused its discretion in denying their motions and overruling their

objection. Given the “wide latitude” that district courts enjoy in determining the

admissibility of expert testimony and the record presented here, we disagree.

Trial judges have a duty to act as gatekeepers to exclude irrelevant and

unreliable expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 589 & n.7 (1993). The trial judge’s determination on the admissibility

of expert evidence is governed by Rule 702 of the Federal Rules of Evidence.

Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form

of an opinion or otherwise, if (1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has applied the

principles and methods reliably to the facts of the case.

FED. R. EVID. 702. The trial judge is charged with assessing the relevance and

reliability of the expert testimony. FED. R. EVID. 702; Kumho, 526 U.S. at 147.

Rule 702 provides that a district court may allow an expert witness to testify if

he has the requisite “knowledge, skill, experience, training or education.” FED.

R. EVID. 702 (emphasis added). A witness can therefore be qualified as an expert

“even though he lacks practical experience, provided that he has received

suitable training or education or has otherwise gained the requisite knowledge

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or skill.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 176–77

(5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d

1069 (5th Cir. 1994).

Though the district court recognized that Dr. Clarke had limited

“practical, hands-on experience” with post-weld heat treatment,the district court

nonetheless found him qualified on the basis of his education and his experience

as a full-time practicing consulting engineer: an undergraduate, graduate, and

doctorate degree in various areas of metallurgy and metallurgical engineering;

four undergraduate courses that covered topics in heat treatment and two

graduate courses that related specifically to heat treatment of metals; a course

“which would get deeply into heat treatment” given that “heat treatment is a

broad subject, for which post-weld is one portion”; and past consulting projects

involving welding and high-temperature, thermal movement. We find no

manifest error here in the district court’s decision not to exclude Dr. Clarke’s

testimony on post-weld heat treatment and the industry standard of care, and

thus affirm his decision to deny Analytic Stress’s Renewed Motion for Judgment

as a Matter of Law.

C. Settlement Testimony and Substitution of the Parties

Before trial, MPC, F&T, and F&T’s primary insurer, Gray Insurance

Company, reached a settlement agreement regarding two of four claims in the

action. The three parties agreed to settle MPC’s claim against F&T because its

subcontractor, Analytic Stress, warped the tube sheets. Additionally, the three

parties requested that the district court sever MPC’s claim against F&T for

welding leaks unrelated to the warping of the tube sheets; this motion was

granted. This left MPC’s negligence action against Analytic Stress for warping

the tube sheets and F&T’s breach of contract action against Analytic Stress for

warping the tube sheets for trial. In the settlement agreement, F&T agreed “to

assign to MPC all of F&T’s rights, claims, etc. against Analytic and all of F&T’s

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rights, claims, etc. against Analytic’s insurers.” Analytic Stress brings two

issues on appeal that concern the settlement agreement: (1) whether the district

court abused its discretion in prohibiting Analytic Stress from eliciting testimony

about the settlement, and (2) whether the district court abused its discretion in

allowing F&T to appear as a real party in interest separate from MPC after it

assigned its claims against Analytic Stress. We address each in turn.

1. Settlement Testimony

Analytic Stress argues that the district court abused its discretion when

it prohibited Analytic Stress from eliciting testimony because Mississippi

substantive law as laid out in Pickering v. Industria Masina I Traktora, 740

So.2d 836 (Miss. 1999), requires the jury be told when a former co-defendant has

settled the case against it. MPC argues that Analytic Stress has misinterpreted

Pickering, and regardless, that it is inapplicable because Rule 408 regarding the

exclusion of evidence concerning settlement applies instead. We agree with

MPC that the Federal Rules of Evidence control. Under the Federal Rules of

Evidence, the district court did not abuse its discretion in prohibiting the parties

from eliciting testimony about the fact that the settlement agreement was

reached while allowing Analytic Stress to elicit testimony that at some time F&T

was a defendant in the case but no longer were at time of trial.

We reverse evidentiary decisions “only when the district court clearly

abused its discretion and a party’s substantial rights were affected.” Guerra v.

N.E. Indep. Sch. Dist., 496 F.3d 415, 419 (5th Cir. 2007) (citing Rock v. Huffco

Gas & Oil Co., 922 F.2d 272, 277) (5th Cir. 1991)). “District courts are given

broad discretion in rulings on the admissibility of evidence; we will reverse an

evidentiary ruling only when the district court has clearly abused this

discretion . . . .” Rock, 922 F.2d at 277. Even if there is an abuse of discretion,

“the harmless error doctrine applies unless a substantial right of the

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complaining party was affected.” Compaq Comp. Corp. v. Ergonome Inc., 387

F.3d 403, 408 (2004).

In a diversity action, federal courts apply federal procedural law, including

the Federal Rules of Evidence. Grenada Steel Indus., Inc. v. Ala. Oxygen Co.,

Inc., 695 F.2d 883, 885 (5th Cir. 1983); see FED. R. EVID. 101 & 1101(b) (“These

rules apply generally to civil actions and proceedings . . . .”; Washington v. Dep’t

of Transp., 8 F.3d 296, 300 (5th Cir. 1993). Rule 408 of the Federal Rules of

Evidence provides that evidence of an offer or acceptance of a settlement may

not be admitted “to prove liability for, invalidity of, or amount of a claim that

was disputed as to validity or amount, or to impeach through prior consistent

statement or contradiction . . . .” FED. R. EVID. 408(a). The rule goes further to

say, however, that it does not require exclusion if the evidence is offered for a

purpose not prohibited by section (a) of the rule, such as proving a witness’s bias

or prejudice. Rule 411 of the Federal Rules of Evidence provides that:

Evidence that a person was or was not insured against liability is

not admissible upon the issue whether the person acted negligently

or otherwise wrongfully. This rule does not require the exclusion of

evidence of insurance against liability when offered for another

purpose, such as proof of agency, ownership, or control, or bias or

prejudice of a witness.

FED. R. EVID. 411. Finally, Rule 403 provides that relevant “evidence may be

excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.” FED. R. EVID.

411.

Here, there was no clear abuse of discretion. The court transcript from

October 6, 2009 and the January 27, 2010 order denying Analytic Stress’s motion

for a remittitur or new trial indicates that the district court was concerned about

jury confusion and prejudice should the jury learn about the existence of the

settlement and the fact that F&T had liability insurance coverage. However, the

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district court acknowledged that evidence of the existence of a settlement “would

not necessarily be elicited for purposes of showing that the claims made against

ASR are not appropriate or not valid.” Thus, it seems the district court

contemplated the testimony being used for purposes other than the prohibited

purposes in Rule 408 and Rule 411. To allow the jury to evaluate the credibility

of witness testimony from F&T witnesses while still excluding confusing or

prejudicial information, the district court determined that the parties could only

elicit information that F&T had previously been a defendant in the case and that

it had assigned its claim against F&T to MPC. This ruling is within the limits

provided by Rule 403, which allows the district court to limit or exclude evidence

that is relevant but fraught with potential to prejudice or confuse jurors.

Analytic Stress argues that Mississippi substantive law, as laid out in

Pickering, requires that the jury be affirmatively told when a former codefendant has settled the case against it. We disagree. Pickering does not

demand that the jury be told of a co-defendant’s settlement. Instead, the

Mississippi Supreme Court stated that Mississippi law “allows the jury to be

informed of the existence of a settlement but not the amount of settlement.”

Pickering, 740 So.2d at 841 (emphasis added) (citing Whittley v. City of Meridian,

530 So.2d 1341, 1346 (Miss. 1988)). In fact, in that decision, the jury in

Pickering was not informed of the settlement, and instead the trial judge

reduced the amount awarded by the jury by the amount of the settlement by the

other defendants. The Mississippi Supreme Court affirmed that procedure.

Thus, we find that this line of argument has no merit. For the foregoing reasons,

we affirm the district court’s decision to exclude evidence that MPC had settled

its case against F&T and to deny a new trial on this ground.

2. Substitution of the Parties

Analytic Stress argues that the district court abused its discretion in

allowing F&T to appear as a real party in interest with separate counsel from

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MPC on the breach of contract claim after it had assigned its rights and claims

against Analytic Relieving and its insurers to MPC. We disagree.

We review the district court’s denial of a motion to substitute the real

party in interest for abuse of discretion. See Wieburg v. GTE Sw. Inc., 272 F.3d

302, 308 (5th Cir. 2001) (citations omitted). Rule 17(a)(1) of the Federal Rules

of Civil Procedure requires that actions “be prosecuted in the name of the real

party in interest.” FED. R. CIV. P. 17(a)(1). However, Rule 17(a)(1)(G) allows a

party to sue in their own names without joining the person for whose benefit the

action is brought if they are authorized by statute to do so. Section 11-7-3 of the

Mississippi Code allows actions to be prosecuted under the name of the original

parties after an assignment of a chose in action:

In case of a transfer or an assignment of any interest in such chose

in action before or after suit brought, the action may be begun,

prosecuted and continued in the name of the original party . . . . An

“assignee” for purposes of this section includes both absolute

assignees, with or without recourse, and conditional or limited

assignees including assignees for collection purposes.

MISS. CODE §11-7-3 (emphasis added). Additionally, Rule 25(c) of the Federal

Rules of Civil Procedure provides that if “an interest is transferred, the action

may be continued by or against the original party unless the court, on motion,

orders the transferee to be substituted in the action or joined with the original

party.” FED. R. CIV. P. 25(c).

Given section 11-7-3 of the Mississippi Code allows an action to be

prosecuted and continued in the assignor’s name, nothing in Rule 17 prohibited

the district court from allowing the action to be prosecuted and continued by of

the original party. Additionally, the express language of Rule 25 states that in

the case of a transfer of interest, an action may be continued by the original

party unless the court orders the transferee to be substituted. When there is a

transfer of interest in a pending action, Rule 25 gives the district court the

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discretion to decide whether the assignee will substitute the original party. The

district court decided not to substitute MPC in the breach of contract claim and

to “allow Furnace & Tube to have separate counsel at trial to protect its own

interest.” Thus, we find no abuse of discretion and affirm the district court’s

decision to deny a new trial on this ground.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s judgment.

AFFIRMED.

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