Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-1115

DAVID J. ELLRICH, INDIVIDUALLY,

Plaintiff, Appellant.

__________

MORGAN FINANCIAL ADVISORS, INC.,

Plaintiff,

v.

U.S. BANK NATIONAL ASSOCIATION, d/b/a US Bank,

f/k/a Firstar Bank,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Senior Circuit Judge,

and Lipez, Circuit Judge.

David J. Ellrich on brief pro se.

Timothy C. Sullivan and Taft Stettinius & Hollister LLP on

brief for defendant, appellee.

March 13, 2008
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Per Curiam. David Ellrich, the plaintiff in the trial

court, served as president of Morgan Financial Advisors ("Morgan"),

which in turn served as investment advisor to the Convergent Market

Fund Series II, LP ("Convergent"). Convergent was a Delaware-based

hedge fund that traded in mutual fund indices and futures, a type

of high risk investing. From December 2000 until April 2003,

Ellrich managed a custodial account on Convergent's behalf with

U.S. Bank National Association ("U.S. Bank" or "Bank"), an Ohio

corporation.

As custodian, U.S. Bank agreed, among other things, to

process orders for the purchase or sale of securities for the

accounts, to accept or withdraw sums upon Convergent's request,

and, pertinently for our purposes, to provide Convergent's designee

with monthly account statements showing all activity from the

previous month and the value of each asset held in the account. 

After Convergent dissolved in April 2003 and assigned its

remaining interests to Ellrich, Ellrich brought suit in

Massachusetts state court against U.S. Bank, claiming that

Convergent's losses were caused by U.S. Bank's faulty recordkeeping, violations of the Master Custody Agreement, and disregard

for state banking laws. In due course, the case was removed to the

Massachusetts federal district court and a four-day trial was held.

Ellrich agreed at trial that only two of his claims

should be submitted to the jury: first, that U.S. Bank had breached
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the custody agreement by issuing erroneous account statements; and

second, that U.S. Bank had violated Ohio banking laws by returning

two overdraft checks issued to Morgan out of Convergent's account

after the statutory "midnight deadline" for disavowal. Ellrich

agreed that a third claim, arising under a Massachusetts statute

governing unfair trade practices, would be decided by the trial

judge.

Both the jury and the judge found in favor of the Bank,

and Ellrich now appeals from the final judgment. The heart of

Ellrich's argument at trial was that U.S. Bank violated the terms

of the custody agreement by failing to provide proper monthly

statements. On appeal, Ellrich argues that he was entitled to

judgment as a matter of law on his breach of contract claim because

U.S. Bank conceded before trial that it had issued an erroneous

statement to Convergent.

The short answer is that at trial Ellrich did not move

for judgment as a matter of law on his breach of contract claim

against U.S. Bank and this in turn bars him from making such a

claim on appeal. Fed. R. Civ. P. 50(b); Unitherm Food Sys., Inc.

v. Swift-Eckrich, Inc., 546 U.S. 394, 400-01 (2006). Nor did

Ellrich ask for a new trial after the jury returned its verdict, so

he cannot press such a claim now.

As it happens, the jury would have been hard put to find

that U.S. Bank's issuance of a single inaccurate statement caused
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Ellrich any harm. The Bank's mistake was promptly corrected and

Ellrich did not show that he made any trades in reliance on the

inaccurate version. There appears to have been good reason for the

failure to move for judgment as a matter of law.

Next, Ellrich complains that the district court

incorrectly instructed the jury that only the December 2001

statements remained at issue even though his claim for breach of

contract was based on a three-year "pattern" of contract

violations. But Ellrich did not object to the instruction; indeed,

at the charge conference Ellrich's counsel conceded that the breach

of contract claim should be limited to the December 2001 events

alone, seemingly because damages stemming from the other instances

of alleged breach were too speculative. Any challenge to the jury

instruction is therefore waived. United States v. Wall, 349 F.3d

18, 24 (1st Cir. 2003).

Ellrich then says that the trial court erred in refusing

to admit testimony from his expert witness, William Gormley, about

banking regulations and bank procedures. The district court

pressed Ellrich's counsel to explain what Gormley's testimony would

reveal about whether U.S. Bank's behavior accorded with its

obligations under the Master Custody Agreement. Dissatisfied with

counsel's vague response, the district court excluded Gormley's

testimony.
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We see no abuse of discretion in the district court's

refusal to admit Gormley's testimony. Baker v. Dalkon Shield

Claimants Trust, 156 F.3d 248, 251-52 (1st Cir. 1998). The court

reasonably concluded that Gormley's proposed testimony was not

relevant to the question of whether U.S. Bank violated the Master

Custody Agreement. Even if relevance was not disputed, the meaning

of the pertinent regulations was plainly a matter for the district

court. Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 99-100 (1st

Cir. 1997).

Finally, Ellrich urges that the district court erred in

its jury instruction on his claim that U.S. Bank violated state

banking regulations by dishonoring two Convergent checks. The

details are not important because Ellrich raised the instruction

issue only in his reply brief, so it is forfeited. Thomas R.W. v.

Mass. Dep't of Educ., 130 F.3d 477, 480 (1st Cir. 1997). 

Affirmed.