BURNETT v. OCEAN PROPERTIES LTD et alREPLY to Response to Motion re MOTION for RemittiturD. Me.March 1, 2019UNITED STATES DISTRICT COURT DISTRICT OF MAINE RYAN BURNETT, Plaintiff, v. OCEAN PROPERTIES, LTD., and AMERIPORT, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) / CASE NO. 2:16-cv-00359-JAW DEFENDANT, AMERIPORT, LLC’S REPLY IN SUPPORT OF THE MOTION FOR REMITTITUR AmeriPort, LLC (“AmeriPort”), pursuant Federal Rules of Civil Procedure 50 and 59 and District of Maine Local Rule 7(c), respectfully timely submits its Reply to Plaintiff’s Opposition to AmeriPort, LLC’s Motion for Remittitur [DE 211], filed by Plaintiff, on February 5, 2019.1 I. Statutory Damage Caps Need Not Be Pleaded as an Affirmative Defense. Plaintiff incorrectly asserts that the First Circuit requires that damage caps should have been pleaded in AmeriPort’s affirmative defenses. Plaintiff’s argument fails for two reasons.2 First, Plaintiff’s reliance on a single First Circuit case, Jakobsen v. Massachusetts Port Auth., 520 F.2d 810 (1st Cir. 1975), is misplaced. Jakobsen did not involve the same statutory caps at issue in this case—42 U.S.C. § 1981a(b)(3)(A) and 5 M.R.S. § 4613(2)(B)(8)(e)(i). In 1 As AmeriPort joined Ocean Properties, Ltd.’s Motion for Remittitur [DE 202], and because Plaintiff incorporated his arguments from his Opposition to OPL’s Motion for Remittitur, AmeriPort joins OPL’s forthcoming Reply in Support of its Motion for Remittitur. 2 Plaintiff concedes that the statutory damage caps apply and that the damage award must be reduced by at least $150,000, waiving any argument that damage caps must be pleaded as affirmative defenses. See Opposition to AmeriPort’s Motion for Judgement as a Matter of Law [DE 213], at p.11 (“and the motion should be denied, especially where caps will naturally operate to reduce the award by $150,000.”). In light of this concession, the question for this Court is which cap applies, not whether the caps apply. Case 2:16-cv-00359-JAW Document 221 Filed 03/01/19 Page 1 of 5 PageID #: 2564 2 Jakobsen, the statutory limitation that was sought to be applied was the limitation of liability under the statute that created the Massachusetts Port Authority. Id. at 812. Moreover, none of Plaintiff’s cases in his Opposition deal with the statutory caps under 42 U.S.C. § 1981a(b)(3)(A) and 5 M.R.S. § 4613(2)(B)(8)(e)(i). Contrary to Plaintiff’s assertion, district courts in various jurisdictions have found that the 42 U.S.C. § 1981a statutory cap is not an affirmative defense that needs to be pleaded. See Ortega-Guerin v. City of Phoenix, 2006 WL 2403511 (D. Ariz. Aug. 14, 2006) (rejecting argument that § 1981a’s statutory cap must be pleaded as an affirmative defense); Paris v. Dallas Airmotive, Inc., 2001 WL 881278, at *5 (N.D. Tex. July 30, 2001) (“Where the statutory maximum is plainly set forth, the court sees no reason why the issue has to be pleaded as an affirmative defense.”); Peckingpaugh v. Post- Newsweek Stations Connecticut, Inc., 1999 WL 334838 (D. Conn. Mar. 17, 1999) (“The court concludes that the defendants’ failure to raise the statutory cap pursuant to 42 U.S.C. section 1981a(b)(3), until after the jury returned its verdict does not bar application of the statutory provisions in this case.”); Oliver v. Cole Gift Centers, Inc., 85 F. Supp. 2d 109, 110 (D. Conn. 2000) (“Plaintiff relies on cases in which the courts held that the defendants waived various statutory limitations other than § 1981a(b)(3) by failing to plead the limitations as affirmative defenses. Plaintiff’s reliance on these cases is misplaced.”). AmeriPort has properly raised the application of the statutory caps via a post-trial motion to be decided by this Court and did not need to plead the caps as an affirmative defense. II. Application of the Statutory Damage Caps and the Finding of The Number of Employees is for the Court, not the Jury. Plaintiff agrees that the application of damage caps is clearly an issue for the court to address, post-trial. Hernandez-Miranda v. Empresas Diaz Masso, Inc., 651 F.3d 167, 173 (1st Cir. 2011) (noting that caps “are for the court, not the jury, to apply” and “[o]f necessity, the caps Case 2:16-cv-00359-JAW Document 221 Filed 03/01/19 Page 2 of 5 PageID #: 2565 3 come into play only after there has been a verdict award.”). Moreover, contrary to Plaintiff’s assertion, the finding as to the number of employees is a matter for the court. See Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d 1344, 1354 (7th Cir. 1995) (despite evidence of number of employees being introduced at trial, the court made the finding as to the number of employees). Plaintiff cites no case standing for the position that jurors are the fact finders in assessing employer size, and for good reason. It cannot possibly be that a key issue in jury trials in this setting would be employer size.3 As the First Circuit stated, the caps come into play “only after there has been a verdict award.” Hernandez-Miranda, 651 F.3d at 173. To do otherwise would make employer size in every ADA accommodation case a central feature, amounting to a David and Goliath showdown between disabled employee and employer. III. The Evidence Introduced at Trial Proves that The Statutory Caps Must Reduce the Award. AmeriPort provided evidence and proved that AmeriPort had, at most, between 75 and 100 employees. Plaintiff testified that between 60 and 70 people worked at AmeriPort while he worked there. Trial Tr. [DE 190], at p. 43; ln. 12. Further, Lori Darsoui testified that the number of employees on AmeriPort’s payroll in 2015 was between 75 and 100. Trial Tr. [DE 190], at pp. 127-28. Plaintiff states that Defendants provided “conflicting” information throughout the litigation, but fails to present any evidence to support this passing argument in the Opposition. Further, the testimony cited by the Plaintiff is clear. Plaintiff cited testimony from Darsaoui explaining that the average number of employees she testified to was for AmeriPort only, which was Plaintiff’s only employer. 3 Plaintiff’s citation, Opp. at 3 n.1, to Rodowicz v. Massachusetts Mut. Life Ins. Co., 279 F.3d 36, 41-42 (1st Cir. 2002), does not stand for the proposition that the number of employees is a fact determination that is part of the verdict and entitled to deference. Case 2:16-cv-00359-JAW Document 221 Filed 03/01/19 Page 3 of 5 PageID #: 2566 4 Plaintiff’s only salvo of hope was to mischaracterize Darsauoi’s testimony. Plaintiff argues misleadingly that Ms. Darsaoui “admitted that if all employees who worked at the various Ocean Properties hotels and affiliates were added together, there would be over 500 employees.” The actual testimony is as follows: Q. Can we agree that if we did include all of those numbers, we would be well over 500 people? A. I don’t know the exact amount, but I would assume that. Trial Tr. at p. 128; ln. 23-25. The above is the only evidence Plaintiff cited to support its 500 employee number. Ms. Darsaoui clearly did not know and was speculating as to the total amount of employees of AmeriPort, Ocean Properties, Ltd., and all of its affiliates. As explained in Co-defendant, Ocean Properties, Ltd.’s Motion for Judgment as a Matter of Law, which AmeriPort has incorporated by reference, Plaintiff did not provide competent evidence as to Ocean Properties, Ltd.’s liability as an integrated employer. Further, Plaintiff did not provide any evidence of the number of Ocean Properties, Ltd.’s employees. Plaintiff’s only evidence is testimony consisting of a guess of the number of employees at various non-party affiliates. To allow the jury to conclude, based solely on wild speculation, that OPL and/or AmeriPort employed more than 500 employees because they took reservations for multiple hotels, with absolutely no evidence of employer-employee relationship between the Defendants and the alleged employees of these hotels, and no evidence of ownership over these hotels is improper and an error of law. See Perezic v. Sans Souci Owners Corp., 2006 U.S. Dist. LEXIS 100037, at *13 (S.D.N.Y. 2006) (defendants were entitled to judgment as a matter of law because without speculation as to the number of employees, only evidence in the record established just one employee). Case 2:16-cv-00359-JAW Document 221 Filed 03/01/19 Page 4 of 5 PageID #: 2567 5 IV. Conclusion Based on the undisputed evidence at trial, this Court must find that AmeriPort has fewer than 100 employees and that the damages awarded by the jury be reduced to $50,000 in accordance with the statutory damage caps set forth by 42 U.S.C. § 1981a(b)(3)(A) and 5 M.R.S. § 4613(2)(B)(8)(e)(i). Date: March 1, 2019 Respectfully submitted, AMERIPORT, LLC, By Its Attorneys /s/ Maureen M. Deskins /s/ Robert P. Hayes Germani Martemucci & Hill 43 Deering Street Portland, ME 04101 (207) 773-7455 e-mail: rhayes@gmh-law.com Local counsel CERTIFICATE OF SERVICE I hereby certify that on March 1, 2019, I electronically filed the foregoing Reply in Support of Motion for Remittitur using the CM/ECF system, which will send notification of such filings to counsel of record. Dated: March 1, 2019 /s/ Robert P. Hayes e-mail: rhayes@gmh-law.com GERMANI MARTEMUCCI & HILL 43 Deering Street Portland, ME 04101 (207) 773-7455 Case 2:16-cv-00359-JAW Document 221 Filed 03/01/19 Page 5 of 5 PageID #: 2568
