Oscar Cruz-Cruz, et al v. Maria Calymayor-Barrios
UNPUBLISHED OPINION FILED. [16-51199 Affirmed ] Judge: CES , Judge: JLD , Judge: CH Mandate issue date is 12/08/2017 [16-51199]
Date Filed: 11/16/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
November 16, 2017
Lyle W. Cayce
OSCAR OSBALDO CRUZ-CRUZ, an individual; EVELYN TEJEDABARCENAS, an individual; MARIA ISABEL ORTEGA-MARTINEZ,
Plaintiffs - Appellants
MARIA ISABEL CALYMAYOR-BARRIOS,
Defendant - Appellee
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:15-CV-342
Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
Plaintiffs-Appellants Oscar Cruz-Cruz, Evelyn Tejeda-Barcenas, and
Maria Ortega-Martinez (collectively, “Appellants”) brought suit against
Defendant-Appellee Maria Calymayor-Barrios (“Appellee”) alleging violations
of the Fair Labor Standards Act (“FLSA”). After a four-day jury trial, the jury
returned a verdict in favor of Appellee and the district court entered judgment
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Date Filed: 11/16/2017
in accordance with the verdict, followed by a judgment awarding a bill of costs.
Appellants filed a notice of appeal as to both judgments. We affirm.
All three Appellants and Appellee are citizens of Mexico. Appellee hired
Appellants as domestic employees and obtained temporary visas for them to
travel from Mexico to the United States to live with and work for Appellee for
limited periods of time between 2013 and 2015. Cruz-Cruz was hired as a
“driver,” Tejeda-Barcenas was hired as a “nanny,” and Ortega-Martinez was
hired as a “cook.”
Appellants filed suit against Appellee in April 2015 asserting: (1) unpaid
federal minimum wages and overtime under the FLSA and (2) a common law
cause of action for false imprisonment. 1
Appellee moved for summary
judgment on both sets of claims and the district court granted summary
judgment as to the false imprisonment claims only. Thereafter, a four-day jury
trial was held in August and September of 2016 on the remaining FLSA claims
and the jury returned a verdict in favor of Appellee. The district court rendered
a judgment in accordance with the verdict and, in a separate subsequent
judgment, awarded modified costs in the amount of $7,935.94 in favor of
Appellee. Appellants did not file a pre-verdict motion for judgment as a matter
of law or a post-judgment motion for new trial. See Fed. R. Civ. P. 50(a),(b).
Appellants filed this appeal as to both judgments. 2
Only Tejeda-Barcenas and Ortega-Martinez asserted false imprisonment claims.
Appellants fail to brief their appeal of the district court’s judgment awarding
modified costs to Appellee and concede that they have abandoned the issue. Accordingly, we
hold the issue to be waived. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir.
2000) (holding that any issue not briefed on appeal is waived).
Date Filed: 11/16/2017
Although Appellants never moved for judgment as a matter of law, either
before or after the jury verdict, they contend on appeal that this court should
review the sufficiency of the evidence. We disagree.
Because Appellants failed to file either a pre or post-verdict motion
under Rule 50, “we are ‘powerless’ to compel, on the basis of insufficiency of
the evidence, the district court to enter judgment contrary to the one it allowed
to stand or to order a new trial.” McLendon v. Big Lots Stores, Inc., 749 F.3d
373 (5th Cir. 2014) (quoting Ortiz v. Jordan, 562 U.S. 180, 190 (2011) (“Absent
[a Rule 50(b)] motion, we have repeatedly held, an appellate court is ‘powerless'
to review the sufficiency of the evidence after trial.” (citing Unitherm Food Sys.,
Inc. v. Swift–Eckrich, Inc., 546 U.S. 394, 400–01 (2006))). Accordingly, we
decline to review Appellants’ unpreserved sufficiency claim. 3
For the aforementioned reasons, we AFFIRM the district court’s
judgments in favor of Defendant-Appellee Maria Calymayor-Barrios.
Even if we were to review under a plain error standard of review, Appellants’
challenges to the sufficiency of the evidence would still fail. Seibert v. Jackson Cty., Miss.,
851 F.3d 430, 435 (5th Cir. 2017) (stating that when a party fails to file a Rule 50(a) motion
prior to a case being submitted to the jury, any challenges to sufficiency of the evidence are
reviewed for plain error). Appellee produced a multitude of written daily payroll log entries
at trial reflecting the hours worked and breaks taken by each of the Appellants during their
employment with Appellee. In light of this evidence, and Appellee’s testimony corroborating
her numerous written logs, we cannot conclude that the jury’s verdict in favor of Appellee
was a “manifest miscarriage of justice.” Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985,
995 (5th Cir. 2008) (“On plain error review the question before this [c]ourt is not whether
there was substantial evidence to support the jury verdict, but whether there was any
evidence to support the jury verdict.”).
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