Cherry v. Shaw Coastal, Inc., CIVIL ACTION NO. 08-228-JJB

JOHN CHERRY v. SHAW COASTAL, INC. AND MICHAEL REASONER

CIVIL ACTION NO. 08-228-JJB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Dated: October 31, 2012

RULING ON MOTION FOR NEW TRIAL, OR ALTERNATIVELY FOR

REMITTITUR

This matter is before the Court on a motion for new trial, or alternatively for remittitur by Defendant Shaw Coastal, Inc. ("Shaw") (Doc. 178) and on a motion to dismiss Shaw's motion for new trial, or alternatively for remittitur by Plaintiff John Cherry ("Cherry"). (Doc. 180). Cherry has filed an opposition to Shaw's motion (Doc. 190), and Shaw has filed an opposition to Cherry's motion. (Doc. 191). Both Shaw and Cherry have filed reply memoranda in support of their respective motions. (Doc. 193 & Doc. 194). Oral argument is not necessary. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons stated herein, the Court DENIES Shaw's motion for a new trial. The Court further GRANTS Shaw's motion for a remittitur. (Doc. 178). The Court DENIES Cherry's motion to dismiss Shaw's motion. (Doc. 180).

I.

Shaw has moved this Court for a remittitur of the jury's verdict of $500,000 in damages for emotional distress in favor of Cherry to a "nominal sum," or in thealternative, a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure. (Doc. 178-1). The following dates and events are relevant.

• July 21, 2010: At the close of Cherry's case, Shaw moved for a Rule 50 Judgment as a Matter of Law ("JMOL"). This Court granted the JMOL to the claims for punitive damages, retaliation, loss of overtime and supervisor sexual harassment claims. (Doc. 115).

• July 22, 2010: Shaw re-urged its motion for a JMOL on Cherry's state law retaliation claim, co-worker sexual harassment claim, and whether or not Shaw took proper remedial action. This Court granted Shaw's motion as to the state retaliation claim, but permitted Cherry's co-worker sexual harassment claims and the issue of whether or not Shaw took proper remedial action to go to the jury. (Doc 116).

• July 23, 2010: The jury found that Shaw was liable for failing to take timely steps to remedy the co-worker's behavior and for creating a hostile work environment. The jury assessed damages against Shaw for $500,000. (Doc. 118). Shaw renewed its Rule 50 JMOL. (Doc. 117).

After the jury rendered its verdict, Shaw renewed its Rule 50 JMOL to the co-worker sexual harassment claim. (Doc. 117).

• August 3, 2010: This Court granted Shaw's motion and vacated the jury's verdict. (Doc. 119).

• September 1, 2010: Cherry filed a notice of appeal. (Doc. 130).

• January 21, 2011: This Court, on Cherry's motion for entry of a Rule 54 judgment, entered final judgment. (Doc. 158).

• February 4, 2011: The United States Court of Appeals for the Fifth Circuit granted Shaw's motion to dismiss Cherry's appeal for lack of jurisdiction without prejudice. (Doc. 161).

• February 7, 2011: Cherry filed a notice of appeal. (Doc. 160).

• April 13, 2011: The Fifth Circuit granted Shaw's motion to dismiss Cherry's appeal for lack of jurisdiction. (Doc. 167).

• April 18, 2011: This Court, pursuant to a letter from Cherry's counsel and the Fifth Circuit Mandates (Docs. 161 & 167) entered final judgment. (Doc. 168).

• April 25, 2011: Cherry filed a notice of appeal. (Doc. 169).

• January 19, 2012: The Fifth Circuit affirmed this Court's dismissal of Cherry's claims for punitive damages, retaliation, and supervisor sexual harassment, but vacated the judgment of this Court vacating the jury's verdict. The Fifth Circuit ordered that this Court enter judgment for Cherry on the jury's conclusion that Cherry was sexually harassed and that his employer, Shaw, failed to respond. (Doc. 175).

• July 25, 2012: This Court entered judgment in favor of Cherry for $500,000 in damages. (Doc. 177).

• August 1, 2012: Shaw filed its motion for a new trial, or alternatively, for a remittitur, which is the subject of this ruling. (Doc. 178).

II.

Shaw has filed this motion for a new trial, or alternatively, for a remittitur. (Doc. 178). Shaw argues that its motion is timely and that it is entitled to a new trial or remittitur. (Doc. 178-1) Shaw contends that this is the first opportunity it has had to "seek relief from this Court's judgment for damages," because prior to the Fifth Circuit's order that this Court enter judgment in favor of Cherry, no judgment had been made against Shaw. (Doc. 178-1, p. 3). Fed. R. Civ. P. 59(b) provides that a party must file a motion for a new trial within 28 days after the "entry of judgment." However, for Rule 59(b) purposes, "the second judgment prevails and begins the running of the [28] day limitations, if it is a superseding judgment making a change of substance which 'distributed or revised legal rights and obligations." Cornist v. Richland Parish School Board, 479 F.2d 37, 39 (5th Cir. 1973) (quoting Federal Trade Comm'n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-212 (1952))¹. Because the first judgment entered by the Court was in favor of Shaw, Shaw contends that it had no prior opportunity to make a motion for a new trial. (Doc. 178-1). Furthermore, Shaw argues that Cherry's filing of a notice of appeal on February 7, 2011 divested this Court ofjurisdiction. Shaw cites Griggs v. Provident, noting that filing a notice of appeal "confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident, 459 U.S. 56, 58 (1982). Shaw argues that this Court regained jurisdiction after the 5th Circuit remand, and the first judgment against Shaw was entered on July 25, 2012. Therefore, Shaw contends that it had 28 days after July 25, 2012 to file a Rule 59(b) motion, and by filing this motion on August 1, 2012, Shaw filed timely.

Cherry argues in his motion to dismiss Shaw's motion² that Shaw has not filed timely to move for a new trial and/or remittitur. (Doc. 180-1). Cherry contends that after the jury was discharged, Shaw indicated that it would like to renew its Rule 50 JMOL, but did not file an additional Rule 50 JMOL motion, nor did it file a motion for a new trial. Cherry points out that during the appellate process, Shaw never asked for a reduction of the verdict or "any other reconsideration afforded via new trial considerations." (Id., p. 3). Cherry argues that because this Court entered its first final judgment on this matter on April 18, 2011, the time limitations to file a motion for a new trial and/or remittitur began to run. Cherry points to Rule 59(a), noting that the court, on motion, may "grant a new trial . . . after a jury trial," but also points to Rule 59(b), which provides thatthe time line for this motion is within 28 days after the entry of judgment. F.R.C.P. 59(a) & 59(b).

Cherry cites Arenson v. Southern Law Center to support its contention that Shaw should have filed a conditional motion for a new trial in the event that the JMOL was reversed by an appellate court. Arenson v. Southern Law Center, 43 F.3d 194, 198 (5th Cir. 1995) (finding that "the party who would obtain [JMOL] must request a new trial along with the motion for [JMOL] and must obtain a ruling for the benefit of the appellate court in case the [JMOL] is reversed, or otherwise lose the right to the new trial." Id.). Cherry also cites Jennings v. Jones, a First Circuit case, for support for its "use-it-or-lose-it" rule. Jennings v. Jones, 479 F.3d 110 (1st Cir. 2007). However, the Jennings court subsequently vacated its opinion, "eliminat[ing] the portion of the original panel opinion concluding that the defendant had abandoned his motions for a new trial and a remittitur." Jennings v. Jones, 499 F.3d 1, 1 (1st Cir. 2007).

In its response, Shaw objects to Cherry's reliance on bad law³, notably Jennings. Shaw additionally objects to Cherry's reliance on Arenson, urging the Court that the facts of Arenson are inapplicable to the facts here. In Arenson, the defendants made a JMOL motion and a motion for a new trial, and while the district court granted the JMOL, the court did not address the motion for a newtrial. Arenson, 43 F.3d at 195. On appeal, the Fifth Circuit reversed the JMOL. Id. at 195-96. The defendant "sought a ruling from the district court on its motion for a new trial," and the district court granted the motion. Id. at 196. The plaintiff appealed to the Fifth Circuit, "arguing that the defendants waived the motion for a new trial by failing to seek a ruling on it in the district court and by failing to appeal the district court's omission," but the Fifth Circuit dismissed for lack of jurisdiction. Id. The parties re-tried the case, and the district court entered judgment for the defendants and denied the plaintiff's motion for a new trial. Id. On appeal, the Fifth Circuit noted that it was error for the district court not to rule on the new trial motion when it ruled on the motion for the JMOL. Id. Additionally, the Fifth Circuit found that when the "defendants failed to seek a ruling from the district court on their motion for new trial and failed to mention the new trial motion on appeal, they abandoned the motion." Id. Shaw urges that this decision focused on the "right to appeal, not the right to file a motion for new trial," and cites language from the opinion to support this argument. (Doc. 191, p. 8). Specifically, Shaw cites "the party who would obtain [JMOL] must request a new trial along with the motion for [JMOL] and must obtain a ruling for the benefit of the appellate court in case the [JMOL] is reversed, other otherwise lose the right to appeal." (Doc. 191, p. 8, citing Arenson, 43 F.3d at 198, emphasis added). However, this emphasized language never appears in the Fifth Circuit's opinion. Rather, the Fifth Circuit said "otherwise lose the right to the new trial." Arenson,43 F.3d at 198 (emphasis added). Despite the misquoting of the Fifth Circuit, Shaw correctly notes that the facts of this case are distinguishable from the facts...