Opinion
CASE NO. 4:00cv24-WCS
August 1, 2002
ORDER
Plaintiff filed a pro se motion to alter or amend judgment, or a motion for judgment notwithstanding the verdict, or for a new trial pursuant to FED. R. CIV. P. 59(a), (e). Doc. 109. The motion has been adopted by counsel for Plaintiff. Doc. 115. Defendant filed a response. Doc. 124.
As a housekeeping matter it is noted that Plaintiff filed a reply to Defendant's response without leave of court. Doc. 128. Defendant moved to strike the reply or for leave to file a response. Docs. 130 and 131. The court entered an order denying the motion to strike with the intention that the instant order be entered on the same day. Doc. 132. That has proved to be error because the motion to alter or amend the judgment has required closer consideration and this order on that motion could not entered that day. Given the procedural manner in which this motion began (generated by the Plaintiff pro se), Plaintiff's counsel's arguments in the reply have been considered in this order. Therefore the motion to strike will again be denied. Leave to file a reply will also be denied because a reply is not needed.
A motion under Rule 59(a) or (e) must be "filed no later than 10 days after entry of the judgment." FED. R. CIV. P. 59(b), (e). Plaintiff's pro se motion was filed on May 23, 2002. Doc. 109. The jury reached its verdict on May 7th, doc. 102, and judgment was entered on the docket on May 9th. Doc. 105. Pursuant to Rule 6, Plaintiff's pro se filing was timely filed on the tenth day.
"When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." FED. R. CIV. P. 6.
Plaintiff contended in the original motion that: (1) the verdict on his Eighth Amendment claim "was against the weight of evidence" and (2) the damages award on the state law negligence claim was "grossly inadequate." Doc. 109. With respect to the first claim, Plaintiff argues that the jury found Defendant exhibited a "wanton and willful disregard of human rights, safety or property" when the jury found in his favor on the state law claim and that such a finding is "tantamount to a finding of" deliberate indifference on his federal Eighth Amendment claim. Id., p. 3.
To the extent that Plaintiff's motion should be construed as a motion for judgment as a matter of law pursuant to Rule 50 (which Plaintiff disclaims), it must be denied. Plaintiff did not make a motion for a directed verdict during the trial. Doc. 102. The advisory committee notes to Rule 50(b) state that "[a] motion for judgment notwithstanding the verdict will not lie unless it was preceded by a motion for a directed verdict made at the close of all the evidence." When a party fails to make a motion for judgment as a matter of law at the close of all the evidence, the party forfeits "its right to have the court consider its post-trial motion for judgment as a matter of law." Blasland Bouck Lee, Inc. v. City of North Miami, 283 F.3d 1286, 1300 (11th Cir. 2002) ("the moving party must have made a motion for such a judgment under Rule 50(a) at the close of all the evidence") (other citations omitted).
In considering a Rule 59 motion, "a new trial may be granted if the district court judge believes the verdict rendered by the jury was contrary to the great weight of the evidence." Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1320, n. 3 (11th Cir. 1999), citing Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1497-98 (11th Cir. 1987); Lambert v. Fulton County, Ga., 253 F.3d 588, 594 (11th Cir. 2001); Jackson v. Magnolia Brokerage Co., 742 F.2d 1305, 1307 (11th Cir. 1984). "Because it is critical that a judge does not merely substitute his judgment for that of the jury, 'new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great — not merely the greater — weight of the evidence.'" Lipphardt v. Duranoo Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001), quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984); see also Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1498 (11th Cir. 1987). If sufficient evidence exists to support the jury's verdict, then "its verdict cannot be said to be against the great weight of the evidence."Carter v. Decision One Corp. Through C.T. Corp. System, 122 F.3d 997, 1004 (11th Cir. 1997). A "judge should not substitute his own credibility choices and inferences for the reasonable credibility choices and inferences made by the jury." Rosenfield, 827 F.2d at 1498. It is not for a judge to usurp the jury's role as factfinder.
At trial, Plaintiff testified to alerting Defendant that he needed a housing change, why he needed it, and stated that she was asked about the change more than once. Plaintiff presented additional testimony in support of his version of the events. Defendant's version of the events was considerably different and, in general, Defendant did not admit that Plaintiff had been assaulted. She testified that she was never told that Plaintiff was being sexually harassed and denied being approached several times by Plaintiff.
"The jury was called upon to make credibility determinations and to weigh the evidence. It was free to believe or disbelieve portions of testimony, and it could reasonably have chosen to believe plaintiff's evidence and find that there had been age discrimination." 827 F.2d at 1498, citing Lindsey v. American Cast Iron Pipe Co., 772 F.2d 799, 802 (11th Cir. 1985). It is irrelevant whether the Court would have reached the same conclusion "as long as there is some support for the jury's decision." 827 F.2d at 1498. Because there was at least some evidence to support the jury's verdict on the Eighth Amendment claim if they chose to believe Defendant's testimony, the verdict on that claim was not against the great weight of the evidence.
Plaintiff also contends that the jury's verdict in his favor on the negligence claim is the equivalent of finding that Defendant violated his Eighth Amendment rights, and that a new trial is needed because the verdicts were inconsistent. This is argued more explicitly in the reply. Doc. 128. Whether Plaintiff's argument is correct or not, however, need not be resolved because no objection was made that the verdict was inconsistent before the jury was discharged. When the verdict was rendered and prior to discharge of the jury, either party could have objected that the verdict was inconsistent.
The time to correct a problem of inconsistent verdicts was before the jury was discharged. If a party fails to make a timely motion or objection that a verdict is inconsistent before the jury is discharged, the issue is waived. U.S.E.E.O.C. v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1251 (11th Cir. 1997) (considering a motion for a new trial based on an inconsistent special verdict and holding the motion waived for failure to make a timely Rule 49(a) motion), citing Stancill v. Mckenzie Tank Lines, Inc., 497 F.2d 529, 534-535 (5th Cir. 1974);Austin-Westshore Constr. Co., Inc. v. Federated Dep't Stores, Inc., 934 F.2d 1217, 1226 (11th Cir. 1991); see also Coralluzzo v. Education Management Corp, 86 F.3d 185, 186 (11th Cir. 1996); Geneva County Bd. of Educ. v. CNA Ins. Co., 874 F.2d 1491, 1497, n. 6 (11th Cir. 1989), citing Golub v. J.W. Gant Associates, 863 F.2d 1516, 1521 n. 4 (11th Cir. 1989). The rule is much the same in other circuits. See Howard v. Antilla, 294 F.3d 244, 2002 WL 1371041 (1st Cir., June 28, 2002);Chem-Trend, Inc. v. Newport Industries. Inc., 279 F.3d 625, 629 (8th Cir. 2002); Heno v. Sprint/United Managent Co., 208 F.3d 847, 851 (10th Cir. 2000) (applying the rule of waiver to a general but not special verdicts).
The court did not sua sponte raise the question of whether the verdicts were inconsistent because it was arguable, comparing the instructions on the Eighth Amendment claim to the instructions governing the state law claim, that the claims were different. The court also recognized that for tactical reasons both sides might have elected to remain silent.
Whether this circuit recognizes any exceptions to this general rule is unclear. See Hattaway v. McMillian, 903 F.2d 1440, 1444 (11th Cir. 1990) (no indication that an objection or motion to the allegedly inconsistent verdict was raised before the jury was dismissed); Boczar v. Manatee Hospitals Health Systems, Inc., 993 F.2d 1514, 1516, n. 5 (11th Cir. 1993) (noting that no party objected to the inconsistent verdicts and reversing the district court's order which granted defendants' motion for judgment notwithstanding the verdict); Overseas Private Inv. Corp. v. Metropolitan Dade County, 47 F.3d 1111, 1116 (11th Cir. 1995) (even though the district court had ruled that objections that the verdicts were inconsistent were waive because not made before the jury was discharged, "the verdicts regarding damages [were] so confused as to require a new trial").
There has been no contention in this case that the jury instructions were unclear, however, and if there is an exception which this court should apply, the standards for applying it are not clear. The better procedure is to apply the usual rule of waiver. Permitting the challenge to proceed at this date "would undermine the incentives for efficient trial procedure and would allow the possible misuse of Rule 49 procedure. . . ." Skillin v. Kimball, 643 F.2d 19, 20 (1st Cir. 1981), quoted in Coralluzzo, 86 F.3d at 186; see also Lockard v. Missouri Pacific R. Co., 894 F.2d 299, 304 (8th Cir.), cert. denied 498 U.S. 847 (1990) (noting "[t]he purpose of the rule is to allow the original jury to eliminate any inconsistencies without the need to present the evidence to a new jury."). Thus, Plaintiff's argument that a new trial is required because the verdict is inconsistent is waived.
With regard to the contention that the $40,000.00 damages award was "grossly inadequate," it is the role of the jury to "determine the question of liability and the extent of the injury by an assessment of damages. Both are questions of fact." Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935) (holding that the Seventh Amendment to the United States Constitution prevents a court from increasing a jury's award), cited in Massey Yardley Chrysler Plymouth Inc., 117 F.3d at 1252. Therefore, there is a long stand policy which disfavors additur. Oliver v. Falla, 258 F.3d 1277, 1281 (11th Cir. 2001, cert. denied, 122 S.Ct. 1207 (2002), quoting Walker v. Anderson Elec. Connectors, 944 F.2d 841 (11th Cir. 1991).
"Additur is a practice by which a judge offers a defendant the choice between facing a retrial and accepting a damage award higher than that determined by the jury." Liriano v. Hobart Corp., 170 F.3d 264, 272 (2d Cir. 1999).
This rule is not violated, however, if there "is no genuine issue as to the correct amount of damages." Massey Yardley Chrysler Plymouth Inc., 117 F.3d at 1252. "A trial court may not grant a new trial on the ground of insufficient damages unless the jury verdict is one that could not reasonably have been reached. The remedy of a new trial for inadequate damages is appropriate only where the evidence indicates that the jury awarded damages in an amount substantially less than unquestionably proved by the plaintiff's uncontradicted and undisputed evidence." Anchor v. O'Toole, 94 F.3d 1014, 1021 (6th Cir. 1996).
Plaintiff presented significant evidence to support his claim for damages, but there was no direct, undisputed evidence as to a specific dollar amount for the various forms of physical and emotional injury, as well as future expenses. The actual amount which should have been awarded was fairly debatable. Therefore, a new trial cannot be ordered as to this question.
Plaintiff also argues that it was improper for counsel for Defendant to argue in closing "why would the jury want to take money directly out of the Defendant's pockets." No objection was made to this comment, however, and there was no request for a curative instruction or a mistrial. The objection is now waived. Brown Root, Inc. v. Big Rock Corp., 383 F.2d 662, 666-667 (5th Cir. 1967); Woods v. Burlington Northern R. Co., 768 F.2d 1287, 1292 (11th Cir. 1985), citing Brown Root, rev'd on other grounds, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987); Billingsley v. City of Omaha, 277 F.3d 990, 997 (8th Cir. 2002); Computer Systems Engineering, Inc. v. Qantel Corp., 740 F.2d 59, 69 (1st Cir. 1984).
Accordingly, it is ORDERED:
1. The order entered on July 29, 2002, doc. 132, is VACATED. Defendant's motion to strike, as supplemented, docs. 130 and 131, are DENIED, and Defendant's motion for leave to file a response to the reply, docs. 130 and 131, is likewise DENIED because a reply is not needed.
2. Plaintiff's motion to alter or amend judgment or motion for judgment notwithstanding the verdict, or motion for new trial, docs. 109 and 115, is DENIED.
DONE AND ORDERED.