Kenneth E. Salamone and Rufstr Racing, LLC, Plaintiffs-Appellees v. Douglas Marine Corporation, Defendant-Appellant* Appeal by defendant Douglas Marine Corporation from so much of an August 23, 2021 amended judgment of the United States District Court for the Northern District of New York, Mae A. D’Agostino, Judge, as requires defendant to pay plaintiffs $451,500 in damages for breach of contract, upon plaintiffs’ motion pursuant to Fed. R. Civ. P. 59(e) to alter the original judgment entered on a jury verdict awarding plaintiffs damages in the amount of $131,171. On appeal, defendant contends principally that the district court erred in increasing the amount awarded based on its ruling that the jury’s damages calculation constituted a fundamental error that excused plaintiffs’ failure to object to the verdict prior to the dismissal of the jury. See Salamone v. Douglas Marine Corp., No. 19-CV-01213, 2021 WL 3723105 (N.D.N.Y. Aug. 23, 2021). Defendant also contends that the court erred in failing to instruct the jury on a mitigation-of-damages defense and in denying defendant’s post-amended-judgment motion to dismiss the action for lack of personal jurisdiction. See Salamone v. Douglas Marine Corp., No. 19-CV-01213, 2022 WL 111774 (N.D.N.Y. Jan. 12, 2022). We find merit only in defendant’s challenge to the district court’s Rule 59(e) ruling that increased plaintiffs’ damages recovery above the amount awarded by the jury, which we conclude violated principles of federal procedure. We reverse the amended judgment to that extent; as neither side asked the district court to order a new trial, we remand with instructions to enter a further amended judgment that accords with the verdict returned by the jury. Reversed in part, affirmed in part, and remanded for entry of a second amended judgment that grants plaintiffs damages in the amount awarded by the jury, along with such other relief awarded in the amended judgment as defendant has not challenged on appeal. AMALYA KEARSE, C.J. Defendant Douglas Marine Corporation (“Douglas Marine”) appeals from so much of an August 23, 2021 amended judgment of the United States District Court for the Northern District of New York, Mae A. D’Agostino, Judge, as requires Douglas Marine to pay plaintiffs Kenneth E. Salamone and his company RUFSTR Racing, LLC (“Plaintiffs”), $451,500 in damages for breach of contract, upon Plaintiffs’ motion pursuant to Fed. R. Civ. P. 59(e) to alter or amend an April 22, 2021 judgment entered on a jury verdict awarding Plaintiffs damages in the amount of $131,171 (the “Original Judgment”). On appeal, Douglas Marine contends principally that the district court erred in entering the August 23, 2021 amended judgment increasing Plaintiffs’ damages award to $451,500 (the “Amended Judgment”) based on its ruling that the jury’s damages calculation constituted a fundamental error that excused Plaintiffs’ failure to object to the verdict prior to the dismissal of the jury. Douglas Marine also contends that the court erred in failing to instruct the jury on its mitigation-of-damages defense, and in denying its post-Amended-Judgment motion to dismiss the action for lack of personal jurisdiction. For the reasons that follow, we find merit only in Douglas Marine’s challenge to the Rule 59(e) ruling increasing Plaintiffs’ damages recovery above the amount awarded by the jury, which we conclude violated principles of federal procedure. We reverse the Amended Judgment to that extent; as neither side moved in the district court for a new trial, we remand for entry of a second amended judgment that grants Plaintiffs damages in the amount awarded by the jury, along with such other relief awarded in the Amended Judgment as Douglas Marine has not challenged on appeal. I. BACKGROUND The following account of the principal events is based on facts stipulated by the parties, as well as facts described by the district court in its posttrial Memorandum-Decision and Order granting, in pertinent part, Plaintiffs’ Rule 59(e) motion, see Salamone v. Douglas Marine Corp., No. 19-CV-01213, 2021 WL 3723105 (Aug. 23, 2021) (“Salamone I”), descriptions that are not challenged by either side. A. The Contract In December 2015, Plaintiffs entered into a contract with Douglas Marine to purchase a new, custom-made Skater 388 Race Boat (the “Skater”) and boat trailer. The parties stipulated that the contract purchase price for the Skater was $542,117. The contract price did not include engines or certain other equipment that Plaintiffs were to purchase separately. On December 30, 2015, Plaintiffs made an initial payment to Douglas Marine of $300,000. On December 31, 2016, they paid Douglas Marine $61,500. In March 2017, Plaintiffs paid Douglas Marine $140,000 for engines that they had authorized Douglas Marine to order for the Skater. Although the contract did not specify an agreed date for delivery, Salamone testified at trial that the boat was to be delivered by August 2016 so that he could race it during the 2016 season. Douglas Marine did not complete the boat by August 2016. On June 27, 2017, Douglas Marine told Salamone the Skater was not completed; Salamone told Douglas Marine that Plaintiffs no longer wanted the Skater. Douglas Marine asked and received Salamone’s consent to sell the boat. Douglas Marine listed the Skater for sale, initially seeking the contract price, but lowering the asking price five times before the boat was eventually sold. Douglas Marine sold the Skater for $300,000 and the engines for $75,000; but it remitted only $50,000 to Plaintiffs. B. The Present Action Plaintiffs commenced the present action in September 2019, asserting breach of contract, along with several other claims that were dismissed during trial. Federal jurisdiction was premised on diversity of citizenship (New York and Connecticut for Plaintiffs, Michigan for Douglas Marine). The complaint alleged that Douglas Marine, incorporated and headquartered in Michigan, did business in New York through dealerships authorized to sell Douglas Marine power boats, including Skaters. 1. Pretrial Proceedings Prior to answering the complaint, Douglas Marine sent a letter to the district court requesting permission to file a pre-answer motion to dismiss the action for lack of personal jurisdiction. It stated, inter alia, that Douglas Marine “ha[s] no physical presence” in New York, “conduct[s] no business activities in New York,” and “does not…transact with any dealers in New York.” (Douglas Marine Letter to the District Court dated October 31, 2019, at 1.) Plaintiffs’ responding letter asserted that Douglas Marine “contracted with a New York customer and afforded that New York customer with a 35 percent dealer discount because this transaction was arranged through Performance Marine in Bolton Landing, New York.” (Plaintiffs’ Letter to the District Court dated November 13, 2019, at 1.) The district court held a telephone conference to address Douglas Marine’s proposed motion, stating at the outset, “[n]othing I say during this phone conference should be taken as an indication as to how I would rule on a motion.” (Pre-Motion Conference Transcript, November 15, 2019 (“2019 Tr.”), at 2.) In the conference, Douglas Marine insisted that “[t]here was no dealer in this transaction” and that it was several years since it had used dealers. (2019 Tr. 3; see id. at 8-9.) Plaintiffs pointed out that it was also several years since Douglas Marine’s contract with Plaintiffs. Plaintiffs maintained that Douglas Marine had consistently used dealers in New York and that the New York dealer Performance Marine, according to its owner Jason Saris, had been “intimately involved in this boat order,” “procur[ing]” and “ arrang[ing]” the purchase, and “ routinely follow[ing] up” with Douglas Marine as to the progress of the boat’s construction. (Id. at 3-9.) The district court instructed the parties to confer in “good faith” in order to determine whether Douglas Marine needed to make a motion to dismiss for lack of personal jurisdiction. If Douglas Marine then saw “a bona fide reason to make this motion,” the court would set a schedule for briefing. The court stated that [o]bviously, on a motion like this, if there are questions of fact, I don’t think I need to be too — you don’t have to be too imaginative to know at this stage what a judge is going to have to do with it. So, before you spend your clients’ time and money, talk a little bit. If there’s a bona fide reason to make this motion, go ahead and make it, but talk first. (Id. at 12.) Without further proposing a motion to dismiss the complaint, Douglas Marine filed its answer, asserting lack of personal jurisdiction as a defense. It made no pretrial motion to dismiss; nor did it raise a lack-of-personal-jurisdiction defense in opposing a motion by Plaintiffs for partial summary judgment, or request from the court or the jury any factual findings at trial that could warrant such a dismissal, or seek such a dismissal after the $131,171 jury verdict or the entry of judgment on that verdict. Douglas Marine made no motion to dismiss the action for lack of personal jurisdiction until after the court entered the Amended Judgment increasing the damages that had been awarded to Plaintiffs in the Original Judgment. As described in Part III below, the district court appropriately ruled that the defense had been forfeited, see Salamone v. Douglas Marine Corp., No. 19-CV-01213, 2022 WL 111774, at *5 (Jan. 12, 2022) (“Salamone II”). As to the merits of the case, following Douglas Marine’s December 2019 answer to the complaint and a modicum of discovery and motion practice, the parties filed a detailed Joint Pre-trial Stipulation (or “Stipulation”) stating their agreement on certain facts and their disagreement as to others. Among the 99 facts on which the parties agreed were the following: 12. The purchase price of the Skater under the…Contract was $542,117.00, which included as follows: (1) $568,009.00 for the basic race boat; (2) $56,750.00 for the full race canopy system (4-man double wide); (3) $19,250.00 for widening the hull; (4) $20,680.00 for the tunnel escape hatch; (5) $2,937.00 for the cockpit cover; (6) $166,400.00 for the hydraulic tilt trailer; and (7) $291,909.00 off of the price as a 35 percent “DEALER DISCOUNT”. …. 93. Plaintiffs paid Defendant a total of $501,500.00 for the Skater, Engines, Drives, and hydraulic tilt trailer. 94. Defendant received a total of $876,500.00 for the Skater, Engines, Drives, and hydraulic tilt trailer. 95. Defendant has only made one payment to Plaintiffs in the total amount of $50,000.00. (Joint Pre-trial Stipulation at 5, 11.) The Stipulation included 55 paragraphs as to matters on which the parties disagreed. More than a dozen of these “Facts In Dispute” concerned “[w]hat caused the delays in the Skater’s construction” (id. at 13, 33) and reflected Douglas Marine’s contention that any delays in its completion of the Skater were caused by indecisiveness on the part of Salamone (see, e.g., id. at 12-13,
