Cherry v. Shaw Coastal, Inc. et al

Filing 197

RULING denying 178 Shaw's Motion for New Trial; granting 178 Shaw's Motion for Remittitur; denying 180 Cherry's Motion to Dismiss Shaw's motion. ORDERED that pltf shall have 15 days to advise the Court whether he will accept a remittitur. FURTHER ORDERED that if pltf fails to accept the remittitur, the Court shall order a new trial solely on the issue of damages sustained by John Cherry. Signed by Judge James J. Brady on 10/31/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JOHN CHERRY
CIVIL ACTION
VERSUS
NO. 08-228-JJB
SHAW COASTAL, INC. AND
MICHAEL REASONER
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 the
1

alternative, 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).
2

 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).

3

 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 of
1

The parties argue extensively about whether Shaw’s reliance on Cornist is proper and
whether Cornist is an applicable statement of law. The Court finds that it is, and will not
entertain any further arguments about it.
4

jurisdiction. 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 that
2

The parties argue about whether Cherry’s filing of a motion to dismiss Shaw’s motion
was procedurally proper, but this is not a relevant issue for the Court’s purposes and will
not be addressed.
5

the 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 new

3

The parties argue extensively about whether the cases relied upon are good law or
bad law, and whether they are applicable.
6

trial. 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,
7

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
in Arenson. Unlike the defendants in Arenson, Shaw never filed a motion for a
new trial when it orally renewed its motion for a JMOL4. (Doc. 191). Additionally,
although the Fifth Circuit stated that the movants “failed to ‘use’ their right to seek
a new trial by failing to obtain a ruling after the grant of judgment as a matter of
law . . . movants have lost the right to seek a new trial after the judgment as a
matter of law was reversed. Because Rule 50(c) was not followed, the district
court erred in granting a new trial on remand.” Arenson, 43 F.3d at 198
(emphasis added). Rule 50(c) provides that if a court “grants a renewed motion
for [JMOL], it must also conditionally rule on any motion for a new trial by
determining whether a new trial should be granted if the judgment is later
vacated or reversed.” Fed. R. Civ. P. 50(c)(1).
Cherry argues that Shaw’s argument that this Court was divested of
jurisdiction when Cherry filed an appeal is incorrect. (Doc. 190). Cherry cites Fed.
R. App. 4, and argues that this rule “makes it clear that the trial court is not
divested of jurisdiction, during which a Motion for Judgment under 50(b) and/or
motion for a new trial under Rule 59 are pending.” Cherry contends that this rule
provides that a notice of appeal does not become effective until “the order
4

Shaw also points out that at least one other circuit has declined to follow the
reasoning in Arenson. See Freund v. Nycomed Amersham, 347 F.2d 752, 765
(9th Cir. 2003).
8

disposing of the last such remaining motion is entered.” (Doc. 190, Fed. R. App.
4(a)(B)(i)). However, Shaw argues that this only applies to pending motions, not
subsequently filed motions. (Doc. 191). Shaw points out that once an appeal has
been correctly filed, the district court loses jurisdiction. See Jordan v. Federal
Farm Mortgage Corp., 152 F.2d 642, 644 (8th Cir. 1945).
Finally, Cherry argues that because the Fifth Circuit issued a mandate to
this Court to enter judgment on the jury’s verdict, this Court must obey the
mandate.5 (Doc. 180-1). However, Cherry’s argument is misplaced and will not
be addressed.
III.
The threshold matter for this Court to determine is whether Shaw’s motion
is timely. The Court finds that Shaw’s motion is timely because (1) there was no
reason for Shaw to ever file a motion for a new trial and/or remittitur prior to the
July 25, 2012 judgment; (2) the July 25, 2012 judgment is a final judgment that
supersedes any prior judgments; and (3) Shaw filed within the 28 days after this
Court entered the adverse judgment to Shaw pursuant to the filing requirements
of F.R.C.P. 59(b). Although a party may file a conditional motion for a new trial in
conjunction with a motion for a JMOL, the Federal Rules do mandate this. Rule
50(c) provides that if the court “grants a renewed motion for [JMOL], it must also
5

The parties argue extensively about whether the case relied upon for support was
reversed, but this is a correct principle of law, and thus the Court will not entertain
whether the particular cited case was reversed or not.
9

conditionally rule on any motion for a new trial.” F.R.C.P. 50(c). The comments
state that this provision “deals with the situation where a party joins a motion for
a new trial with his motion for [JMOL], or prays for a new trial in the alternative,
and the motion for [JMOL] is granted.” Fed. R. Civ. P. 50, cmt to the 1963
amendments. This was the situation in Arenson, but not the situation here. As the
Supreme Court of the United States pointed out, and Shaw correctly cites for
support
“[a] motion for judgment notwithstanding the verdict did
not, at common law, preclude a motion for a new trial.
And the latter motion might be, and often was,
presented after the former had been denied. The rule
[Rule 50] was not intended to alter the existing right to
move for a new trial. . . .[i]t permits the filing of a motion
for judgment in the absence of a motion for a new trial
or the filing of both motions jointly or a motion for a new
trial in the alternative.”
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 250-51 (1940) (footnotes
omitted).
Therefore, the Court finds that Shaw’s motion is permissible, and will
address the merits.
IV.
Shaw argues that it is entitled to a new trial or remittitur because (1) the
jury’s verdict is contrary to the great weight of evidence, (2) Cherry’s excessive
compensatory damages are not supported by the evidence, and, presumably if

10

this Court grants a remittitur, (3) the verdict should be reduced to $1,8006. (Doc.
178-1). Because the Fifth Circuit found that there was sufficient evidence to
warrant the jury’s findings, this Court will not disturb the Fifth Circuit’s mandate
and will only address arguments concerning remittitur.
Shaw argues that the compensatory damages are not supported by the
evidence and testimony. Cherry testified that when Michael Reasoner, the
perpetrator, made a sexually charged statement, it made him feel “not very
good.” (Doc. 178-1 Ex. 2 at 5). When Shaw failed to act timely, Cherry testified
that this upset him, made him uncomfortable and he had trouble focusing on his
work. (Id. at 9). Additionally, he testified that he had trouble sleeping and he and
his wife were separated. (Id. at 13). Cherry stated that because he was
“overcompensating,” he “let someone else come into [his] life.” (Id. at 14). Cherry
also testified to having a history of anxiety and stomach problems, which
worsened because of Reasoner. (Id. at 14-15). However, on cross-examination,
Cherry stated that the infidelity leading to his separation occurred two years after
the incident. (Id. at 18-19). Cherry did note that that at the time of the incident,
they were “having troubles.” (Id.) Additionally, Cherry stated that he did not seek
treatment from any healthcare provider for emotional distress. (Id. at 22).

6

Shaw selects this number because this Court granted a remittitur to codefendant, Michael Reasoner, who was the perpetrator, in the amount of $1,800,
reduced from the jury’s award of $10,000.
11

To recover emotional distress damages, a plaintiff must show specific
evidence of emotional distress. Giles v. General Elec. Co., 245 F.3d 474, 488 (5th
Cir. 2001). “[H]urt feelings, anger and frustration are part of life . . . and [are] not
the types of harm that could support a mental anguish award,” but damages
“may be appropriate, however, where ‘the plaintiff suffers sleeplessness, anxiety,
stress, marital problems, and humiliation.”Id. (citation omitted). Additionally, a
plaintiff must have “more than vague allegations to establish existence of the
injury.” Id. A plaintiff is not required to have corroborating testimony, and a
plaintiff’s own testimony “may be sufficient to prove mental damage but only if the
testimony is ‘particularized and extensive’ enough to meet the specificity
requirement.” Hitt v. Connell, 301 F.3d 240, 250-51 (5th Cir. 2002) (citation
omitted).
V.
After having carefully considered the cases cited by both Shaw and Cherry
in support of their respective arguments concerning remittitur, the Court, in its
discretion, GRANTS Shaw’s motion for remittitur. (Doc. 178).
IT IS HEREBY ORDERED that Plaintiff John Cherry shall have 15 days to
advise the Court whether he will accept a remittitur of $450,000 thereby reducing
the award to $50,000 for the damages occasioned to John Cherry by Defendant
Shaw.

12

IT IS HEREBY FURTHER ORDERED that if Plaintiff fails to accept the
remittitur, the Court shall order a new trial solely on the issue of damages
sustained by John Cherry.

Signed in Baton Rouge, Louisiana on October 31st, 2012.


JAMES J. BRADY, DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

13