Perkins et al v. Federal Fruit & Produce Company, Inc. et al

Filing 218

ORDER granting in part and denying in part #211 Plaintiffs' Motion to Correct and/or amend Judgment to Conform to the Court's Post-Trial Orders. A Second Amended Judgment will be entered accordingly. By Judge James A. Parker on 11/12/13.(mnfsl, ) Modified on 11/13/2013 to correct text (mnfsl, ).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
RICHARD PERKINS and
RICHARD MILLER,
Plaintiffs,
vs.

No. 11 CV 542 JAP/KBM

FEDERAL FRUIT & PRODUCE COMPANY, INC. and
MICHAEL MARTELLI,
Defendants.

ORDER GRANTING IN PART PLAINTIFFS’ MOTION TO CORRECT AND/OR
AMEND JUDGMENT TO CONFORM TO THE COURT’S POST-TRIAL ORDERS
In PLAINTIFFS’ MOTION TO CORRECT AND/OR AMEND JUDGMENT TO
CONFORM TO THE COURT’S POST–TRIAL ORDERS (Doc. No. 211) (Motion), Plaintiffs
Richard Perkins (Perkins) and Richard Miller (Miller) ask the Court to amend the AMENDED
JUDGMENT (Doc. No. 196) to include the jury’s findings of liability on Perkins’ disparate
treatment claim and to mention that his damages for lost wages and benefits and his retaliation
claims will be retried. Defendants Federal Fruit & Produce Company, Inc. (FFP) and Michael
Martelli (Martelli) oppose the amendment. See DEFENDANTS’ RESPONSE TO PLAINTIFFS’
MOTION TO CORRECT AND/OR AMEND JUDGMENT TO CONFORM TO THE
COURT’S POST-TRIAL ORDERS (Doc. No. 213) (Response); see also PLAINTIFFS’ REPLY
RE: MOTION TO CORRECT AND/OR AMEND JUDGMENT TO CONFORM TO THE
COURT’S POST-TRIAL ORDERS (Doc. No. 217).
Perkins and Miller prevailed on all of their claims in a jury trial held May 16-25, 2012.
Perkins asserted claims against FFP and Martelli for (1) disparate treatment based on race; (2)
unlawful discharge due to race; and (3) retaliatory discharge. Miller asserted claims against FFP
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and Martelli for retaliatory discharge. After trial, Defendants filed several post-trial motions.
The Court ruled on the post-trial motions, and the Amended Judgment was entered on May 14,
2013. In one of its post-trial rulings, MEMORANDUM OPINION AND ORDER
REGARDING DEFENDANTS’ MOTION FOR REMITTITUR (Doc. No. 195) (Remittitur
Opinion), the Court granted remittitur of punitive damages on Plaintiff Perkins’ claims of
disparate treatment against FFP and Martelli. In the Remittitur Opinion the Court ruled that if
Perkins rejected the remittitur, the Court would hold a new trial on damages, both compensatory
and punitive, on Perkins’ disparate treatment claims. (Id. at 17.) Within the deadline set by the
Remittitur Opinion, Perkins rejected the remittitur and opted to have a new trial on damages for
his disparate treatment claims against FFP and Martelli. See PLAINTIFFS’ RESPONSE TO
COURT’S ORDER FOR REMITTITUR (Doc. No. 197) (Perkins’ Rejection of Remittitur).
In the Motion, Plaintiffs assert that the current AMENDED JUDGMENT (Doc. No. 196)
appears “inconsistent with the totality of the Court’s post-trial orders affecting the partial
judgment.” (Mot. 2.) The Court recognized this possibility in the Remittitur Opinion by stating,
“[t]he Court will enter . . . a Second Amended Judgment after Perkins indicates whether he will
accept remittitur or opt for a new trial on damages.” (Remit. Op. at 3.) Plaintiffs correctly assert
that after the Court’s entry of the Remittitur Opinion and after Perkins’ Rejection of Remittitur,
the Amended Judgment is incomplete because it omits the jury’s finding of liability on Perkins’
disparate treatment claims against FFP and against Martelli. However, the Court will not include
Perkins’ additional two requests for amendment.

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I. Standard of Review
Under Fed. R. Civ. P. 59(e), “[t]he court may, on motion, grant a new trial on all or some
of the issues--and to any party--. . . after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court[.]” A motion under Rule 59(e) must
be filed on or before 28 days after entry of the judgment. Under Fed. R. Civ. P. 60(b), however,
“the court may relieve a party or its legal representative from a final judgment, order, or
proceeding for . . . (1) mistake, inadvertence, surprise or excusable neglect; . . . or (6) any other
reason that justifies relief.” A motion under Rule 60 (b)(1) must be filed on or before one year
after the entry of the judgment or within a “reasonable time” under Rule 60(b)(6). Fed. R. Civ.
P. 60 (c). The Motion was filed more than 28 days after the entry of the Amended Judgment;
therefore, Rule 60(b) will provide the standard for ruling on the Motion. See Hatfield v. Board of
County Com’rs for Converse County, 52 F.3d 858, 861 (10th Cir. 1995) (stating that motions to
amend judgment filed after the Rule 59 deadline should be considered under Rule 60).
II. Discussion
Plaintiffs assert that the Amended Judgment should be amended to include three
additional findings: (1) that the jury ruled in favor of Perkins on Perkins’ disparate treatment
claims against FFP and against Martelli; (2) that the amount of Perkins’ lost wages and benefits
will be determined at a new trial on Perkins’ unlawful discharge claims; and (3) that liability, as
well as compensatory and punitive damages on Perkins’ claims of retaliation against Martelli
will be determined at a new trial. (Mot. at 1-2.)
However, only the first of Plaintiffs’ three requested findings will be incorporated into a
Second Amended Judgment. The second requested finding, that the amount of lost wages and

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benefits will be determined at a new trial, is unnecessary. The Court ordered a new trial on these
damages because Perkins’ expert, Dr. Patricia Pacey, was given information about when Perkins
began to work for GT Express after he was terminated from his employment at FFP that
conflicted with Perkins’ trial testimony, particularly the dates when Perkins began part-time and
full-time employment with GT Express. Therefore, the jury awarded these damages based on
speculation. At a new trial, however, the jury may determine that Perkins is not entitled to lost
wages and benefits or that the amount of the damages has not been proven. A finding in an
amended judgment that the jury will determine only the amount of lost wages and benefits would
cause confusion because not only the amount but also the availability of those damages will be at
issue in a new trial. Moreover, Perkins must prove the amount of these damages within a
reasonable amount of certainty, and if he does not, the jury may decline to award any amount of
lost wages and benefits. If at a new trial Perkins meets this burden, the amount of lost wages and
benefits awarded by the jury will be incorporated into another amended judgment.
Similarly, the third requested finding, that liability and damages for Perkins’ retaliation
claim against Martelli will be determined at a new trial, is not necessary and should not be part
of the Second Amended Judgment. A judgment is a “decree and any order from which appeal
lies.” Fed. R. Civ. P. 54(a). “A judgment must be a self-contained document, saying who has
won and what relief has been awarded[.] . . .” Taumoepeau v. Mfrs. & Traders Co. (In re
Taumoepeau), 523 F.3d 1213, 1217 n. 4 (10th Cir. 2008) (internal quotation and citation
omitted). There is no need to include this information in the Second Amended Judgment because
it has not been determined yet whether Perkins will prevail on his retaliation claim against
Martelli.

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IT IS ORDER
T
RED that PL
LAINTIFFS’ MOTION T CORRE
’
TO
ECT AND/OR AMEND
R
JUDGME
ENT TO CO
ONFORM TO THE COU
O
URT’S POST
T–TRIAL O
ORDERS (Doc. No. 211) is
)
granted in part and denied in part and a Seco Amende Judgment will be ente
t,
ond
ed
t
ered accordin
ngly.
Entered on Novembe 12, 2013.
o
er

SENIO UNITED STATES D
OR
DISTRICT JU
UDGE

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