Ermini v. Scott et al

Filing 168

ORDER denying 162 Motion for New Trial. It is ORDERED that Defendant Mike Scott's Motion for New Trial and Renewed Motion for Judgment as a Matter of Law (Doc. 162) is DENIED. Signed by Judge Gregory A. Presnell on 3/2/2018. (MAF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA I. ERMINI,
Plaintiff,
v.

Case No:

2:15-cv-701-FtM-31CM

MIKE SCOTT, in his official capacity
as Sheriff of Lee County, Florida,
CHARLENE PALMESE, RICHARD
LISENBEE, ROBERT HAMER, and
WILLIAM MURPHY,
Defendants.
ORDER
This matter comes before the Court on Defendant Mike Scott’s Motion for New Trial and
Renewed Motion for Judgment as a Matter of Law (Doc. 162) and Plaintiff’s Response (Doc. 163).
For the reasons set forth below, the Motion is denied.
I.

Procedural History
On October 24, 2016, Plaintiff Patricia I. Ermini filed a twelve-count Amended Complaint

(Doc. 52) alleging federal civil rights and state law claims arising out of an incident that unfolded
on the evening of March 23, 2013, culminating in the shooting of Plaintiff by a Lee County
Sheriff’s Deputy during a welfare check. 1 Following summary judgment, only a state law
negligence claim remained against Sheriff Mike Scott in his official capacity for the manner in
which his deputies conducted the welfare check. The negligence claim was tried before a jury,
which rendered its verdict in favor of Plaintiff on January 10, 2018. (Doc. 157). At the close of

1

The factual background of this case was detailed in a previous Opinion and Order (Doc.
98) and will not be repeated here.

Plaintiff’s case and after the case was submitted to the jury, Sheriff Scott moved for judgment as
a matter of law (Docs. 151, 152), which was denied. Thereafter, the Clerk entered Judgment for
Ermini on Count XII of the Amended Complaint in the amount of $750,000. (Doc. 159). Sheriff
Scott now moves for a new trial and motion for judgment as a matter of law.
II.

Standards
A. Motion for Judgment as a Matter of Law
Fed. R. Civ. P. 50(b) permits a party to move for judgment as a matter of law after the jury

has returned its verdict. Johnson v. Guerrieri Mgmt., Inc., 437 F. App’x 853, 857 (11th Cir.
2011). In ruling on a Rule 50 motion, the court must determine whether the evidence is “legally
sufficient to find for the party on that issue.” Chaney v. City of Orlando, Fla., 483 F.3d 1221,
1227 (11th Cir. 2007) (citation omitted). Specifically, “in considering a motion for a directed
verdict, the court does not weigh the evidence, but draws all factual inferences in favor of the
nonmoving party.” Lytle v. Household Mfg., Inc., 494 U.S. 545, 554 (1990) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a
judge.... The evidence of the nonmovant is to be believed, and all justifiable inferences are to be
drawn in his favor)). This standard is the same whether the motion is made prior to, or after the
jury’s verdict. Id. (citing Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 903 (11th Cir. 2004)).
B. Motion for a New Trial
A renewed motion for judgment as a matter of law may be joined, in the alternative, with
a motion for a new trial under Rule 59. Fed. R. Civ. P. 50(b). These motions “have wholly
distinct functions and entirely different standards govern their allowance.” 9A Wright & Miller,
Federal Practice and Procedure § 2531.

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If a motion for new trial is granted, the case is tried again. If the motion for
judgment as a matter of law is granted, the case is at an end. Because of the finality
that the latter motion has, it is natural that it should be measured by a far more
rigorous standard. On a motion for a new trial, the court has a wide discretion to
order a new trial whenever prejudicial error has occurred. On a motion for
judgment as a matter of law, it has no discretion whatsoever and considers only the
question of whether there is sufficient evidence to raise a jury issue.
Id. See Ortiz v. Jordan, 562 U.S. 180 (2011) (discussing the difference between insufficient
evidence under Rule 50(b) and weight of the evidence under Rule 59). The decision as to whether
to grant a new trial is committed to the discretion of the trial judge. Lipphardt v. Durango
Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001). Rule 59(a)(1) provides that
after a jury trial a new trial may be granted to all or any of the parties on all or part of the issues
“for any of the reason for which a new trial has heretofore been granted in an action at law in
federal court.” Any such motion must be filed no later than 28 days after entry of judgment. Fed.
R. Civ. P. 59(b). Defendant argues that a new trial should be granted to prevent manifest injustice.
The trial court may grant a motion for a new trial under Rule 59 if it believes the verdict
rendered by the jury was contrary to the great - and not merely the greater - weight of the evidence.
Williams v. City of Valdosta, 689 F.2d 964, 973 (11th Cir. 1982). To make this determination,
the trial judge must independently weigh the evidence favoring the jury verdict against the
evidence in favor of the moving party. McGinnis v. American Home Mortgage Servicing, Inc.,
817 F.3d 1241, 1254-55 (11th Cir. 2016). A trial judge should not substitute his own credibility
choices and inferences for the reasonable credibility choices and inferences made by the jury.
Williams, 689 F.2d at 973 n.7. In cases involving simple issues, highly disputed facts, and an
absence of “pernicious occurrences,” the Court has less freedom to disturb a jury verdict than it
does in cases involving complex issues, facts not highly disputed, and events arguably marred by
error. Id.

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III.

Analysis
Defendant raises three arguments in support of his request for a new trial and judgment as

a matter of law: (1) Plaintiff tried this case to the jury as a “negligent use of force” claim that is
not a recognized cause of action in Florida; (2) the Court erroneously admitted evidence of
Deputies Hamer and Lisenbee’s termination; and (3) the Court previously determined that the
deputies’ actions were reasonable as a matter of law.
A. New Trial
1. Negligent Use of Force
Defendant argues that although the Court dismissed Plaintiff’s federal and state law claims
for excessive force and only allowed the negligence claim to proceed to trial (Doc. 98), Plaintiff
improperly tried a “negligent use of force” claim to the jury by repeatedly referencing the negligent
shooting of Plaintiff. Defendant cites two examples from trial: (1) Plaintiff’s counsel frequently
criticized the deputies’ failure to order Plaintiff to drop her weapon before Deputy Hamer shot her,
and (2) Plaintiff’s counsel attempted to create doubt as to whether Plaintiff was holding a gun
before she was shot. Plaintiff responds that her negligence case focused, without objection, on
the deputies’ complete lack of meaningful communication with Plaintiff during the shooting.
Contrary to Defendant’s assertion, Plaintiff did not try a negligent use of force claim to the
jury. Instead, Plaintiff contended in this case (and the jury was instructed as such) that the
individual deputies were negligent in the manner in which they conducted the welfare check.
(Doc. 153). The actions of the deputies, including the failure to order Plaintiff to drop her weapon,
and the deputies’ beliefs as to whether Plaintiff was in fact holding a gun, may be considered by
the jury in determining whether the deputies’ actions during the welfare check, which culminated
in Plaintiff being shot, were conducted in a reasonable manner. See id., p. 9, Jury Instructions

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(“Negligence is a legal cause of loss if it directly and in natural and continuous sequence produces
or contributes substantially to producing such loss, so that it can reasonably be said that, but for
the negligence, the loss would not have occurred.”). The Court finds not error warranting a new
trial.
2. Deputies’ Termination from Employment
Defendant re-raises the argument made in his Motion in Limine to Exclude Evidence
and/or Argument Regarding Certain Subject Matters (Docs. 70, 128) regarding Deputies Robert
Hamer’s and Richard Lisenbee’s termination from employment. In its in limine ruling, the Court
precluded the actual Report and Investigation documents, as well as the termination documents
themselves, but did not preclude testimony that Hamer was terminated from employment or the
role his truthfulness played in that termination, nor did the Court exclude testimony related to
Lisenbee’s termination from employment.

(Doc. 138).

Defendant argues that because the

deputies’ terminations were unrelated to the welfare check at issue, the evidence was highly
prejudicial and impaired his ability to receive a fair trial.
At trial, based upon the Court’s in limine ruling, Plaintiff’s counsel only asked Lisenbee
and Hamer whether they presently worked for the Sheriff’s Department, whether they were
terminated, and when the termination occurred. Although Hamer testified that his termination
was involuntary and the result of failure to disclose conduct unbecoming, the Sheriff solicited
testimony from Hamer that the termination was wholly unrelated to the incident at issue in this
case. Hamer also testified that the Sheriff took no post-incident disciplinary action against him
because of his actions and Hamer received no criticism from the Department for his actions. In
weighing this evidence, the Court finds no manifest injustice as Defendant argues.
B. Judgment as a Matter of Law

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Defendant moves to set aside the final judgment because Plaintiff’s theory of negligence
was previously determined by the Court to be reasonable as a matter of law in its Opinion and
Order dated April 5, 2017 (Doc. 98), and no reasonable jury could conclude that the deputies
breached a duty to Plaintiff in conducting the welfare check. These arguments are a rehashing of
the arguments made prior to the entry of judgment. The Court has considered these arguments
and found them to be without merit and will not reconsider its prior ruling. Viewing the evidence
and all inferences in the light most favorable to Plaintiff, there is evidence in the record to support
the jury’s verdict. The facts surrounding the welfare check were contested at trial and the Court’s
previous ruling only found that Plaintiff’s Fourth Amendment rights were not violated because the
officers had a reasonable basis to stay in the house. (Doc. 98, p. 21). The Court also found that
triable issues of fact existed as to whether the deputies exercised reasonable care in carrying out
the welfare check. (Id., p. 57). Contrary to Defendant’s argument, the Court did not find that
the officers’ actions were reasonable as a matter of law under a negligence standard; therefore, the
Motion for Judgment as a Matter of Law on this basis is denied.2
IV.

Conclusion
Under either the Rule 50 or Rule 59 standard, Defendant has failed to show that he is

entitled to the relief requested in any respect. Accordingly, it is ORDERED that Defendant Mike
Scott’s Motion for New Trial and Renewed Motion for Judgment as a Matter of Law (Doc. #162)
is DENIED.

2

Defendant also seems to argue that he is entitled to judgment as a matter of law because
the negligence claim was not pled with particularity as to how the deputies were negligent in
conducting the welfare check. This argument is rejected. The Amended Complaint sufficiently
details the allegations under the Twombly/Iqbal standard. (Doc. 52).

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DONE and ORDERED in Chambers, Orlando, Florida on March 2, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Party

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