Nassar et al v. Jackson et al
ORDER denying 183 Motion for Reconsideration. The Court extends to Nassar a third and final offer of remittitur in the amount of $245,639.38. Should Nassar refuse this offer, the Court will schedule a second trial, limited to the issue of th e value of Nassar's salary and benefits during the term of his three-year contract. Nassar has up to and including five days from the entry date of this Order to file notice stating whether he accepts this Court's officer of remittitur. Signed by Judge Susan Webber Wright on 5/11/2015. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RAY NASSAR and GENA SMITH,
individually and in her official
capacity as a Hughes School Board
Member, ET AL.
NO: 3:11CV00133 SWW
Before the Court is a “conditional acceptance of remittitur, and motion to
reconsider” by Plaintiff Ray Nassar (“Nassar”). After careful consideration, and for
reasons that follow, the motion to reconsider (ECF No. 183) is denied and the Court
extends to Nassar a third and final offer of remittitur.
Nassar commenced this employment dispute against the Hughes School District
(“District”) claiming, among other things, that the District terminated his three-year
employment contract without providing him a hearing in violation of the Due Process
Clause. A jury found for Nassar and awarded him $340,000 for economic damages on his
due process claim.
On appeal, the District argued that Nassar’s award exceeded the only demonstrated
value of his economic damages: the salary and benefits that he would have received
during the period of time that remained on his three-year contract. The Eighth Circuit
considered and rejected Nassar’s counter argument–that the award properly included
“front pay.” The Court of Appeals held that, even assuming that a front pay is available
as a due process remedy and that District implicitly consented to a jury determination of
the equitable remedy, a front-pay award is improper in this case because the jury had no
evidence that Nassar’s contract would have been renewed if he had received a proper
Finding that the jury awarded damages in excess of the amount proved at trial, the
Eighth Circuit directed this Court on remand to offer remittitur to the maximum amount
proved: $245,639.38. The Eighth Circuit instructed:
Without the improper front pay, the only evidence of the value of Nassar's
salary and benefits during the term of his contract was the economist's
estimate of $245,639.38. The district court should offer remittitur to that
amount. See Racicky v. Farmland Indus., Inc., 328 F.3d 389, 400 (8th
Cir.2003). If Nassar does not consent to remittitur, the court should conduct
a new trial on this issue. See id.
Id. Nassar, No. 13-1953, 2015 U.S. App. LEXIS 3367, at *10 (emphasis added).
In accordance with the Eighth Circuit’s instructions, the Court offered remittitur in
lieu of a second trial on the issue of damages. Nassar filed notice that he rejected the
offer, and he requested a “bench trial on the issues of front pay and attorneys’ fees.” ECF
No. 178, ¶ 2.
By order entered March 27, 2015 (ECF No. 180), the Court denied Nassar’s
request for a second trial on the issue of front pay and notified him that in accordance
with the Eighth Circuit’s mandate and explicit instructions, a second trial would be
limited to the value of his salary and benefits during the term of his contract. The Court
provided Nassar a detailed explanation regarding the Court’s interpretation of the Eighth
Circuit’s mandate1 and offered him a second opportunity to accept the offer of remittitur.
Now before the Court is Nassar’s “conditional acceptance of remittitur, and motion
to reconsider.” ECF No. 183. Nassar contends that the Eighth Circuit’s instructions
“seemed to say two things,” and he argues that last sentence of the mandate, quoted
above, means that if he rejects remittitur, a bench trial must be conducted on the issue of
front pay. Read in context, the meaning of the last sentence is clear: The “issue” for trial
is “the value of Nassar’s salary and benefits during the term of his contract.” Even if the
plain language of the mandate left room for doubt, which it does not, the Eighth Circuit’s
citation to Racicky v. Farmland Indus., Inc., 328 F.3d 389, 400 (8th Cir.2003) confirms
that a second trial in this case must be limited to the value of Nassar’s salary and benefits
during the term of his contract.2
With his “conditional acceptance” of remittitur, Nassar requests “the Court’s
interpretation of the [Eighth] Circuit’s opinion on this matter.” ECF No. 183, at 2. The Court’s
order entered March 27, 2015 fully explains this Court’s understanding of the Eighth Circuit’s
As noted in the Court’s order entered March 27, 2015, in Racicky v. Farmland Indus.,
Inc., 328 F.3d 389 (8th Cir.2003), a dairy farmer sued a cow feed supplier for negligence,
claiming that feed he had purchased from the defendant injured his dairy cows. A jury found for
the farmer, and awarded him lost market value and lost profits. On appeal, the Eighth Circuit
held that the farmer provided insufficient evidence for the jury to determine lost profits with
reasonable certainty, and it reversed the damage award. The Court of Appeals instructed the trial
court as follows: “We reverse the district court’s judgment on damages and remand for a new
trial on lost market value damages only, unless the [plaintiff], within thirty days after the
In the event that the Court denies Nassar’s motion for reconsideration, which it
does, Nassar states that he “conditionally accepts remittitur of the front pay awarded to
him . . . praying that in the interests of justice, he be provided with the Court’s
interpretation of the [Eighth Circuit’s] opinion on this matter, to preserve his right to
appeal.” ECF No. 183, at 2.
Contrary to Nassar’s statement, the offer of remittitur in this case does not
represent a remittitur or reduction of front pay. Instead, the remittitur offered represents a
substitution of the Eighth Circuit’s judgment for that of the jury regarding the appropriate
award of damages in this case, which the Eighth Circuit held is limited to the value of
Nassar's salary and benefits during the term of his three-year contract and may not include
front pay. Nassar is advised that the Supreme Court has held that a plaintiff may not
appeal from a remittitur order that he has accepted, even where the acceptance is made
under protest in an attempt to open the order to challenge on appeal. See Donovan v.
Penn Shipping Co., 429 U.S. 648, 97 S.Ct. 835 (1977); see also Johnson v. Rogers, 621
F.2d 300, 306 (1980)).
With the foregoing matters understood, the Court extends a final offer of remittitur
to Nassar in the amount of $245,639.38. Should Nassar refuse this offer, the Court will
schedule a second trial, limited to the issue of the value of Nassar’s salary and benefits
issuance of our mandate, consent to a remittitur of the damage award . . . ” Racicky, 328 F.3d at
during the term of is three-year contract. Nassar has up to and including five (5) days
from the entry date of this order to file notice stating whether he accepts the Court’s offer
IT IS SO ORDERED THIS 11th DAY OF MAY, 2015.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE
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