McFeeley et al v. Jackson Street Entertainment, LLC et al

Filing 99

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 5/5/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LAURA MCFEELEY, ET AL
:
v.

:

Civil Action No. DKC 12-1019

:
JACKSON STREET ENTERTAINMENT,
LLC, ET AL

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor Standards Act (“FLSA”) collective action is Defendants’
motion

for

judgment

notwithstanding

alternative, for a new trial.

the

verdict,

(ECF No. 94).

or

in

the

The issues have

been fully briefed, and the court now rules, no hearing being
deemed necessary.

Local Rule 105.6.

For the following reasons,

Defendants’ motion will be denied.
I.

Background1
After

the

court

granted

Plaintiffs’

motion

for

partial

summary judgment, the remaining issues came on for trial before
a jury on February 3-5, 2015.

Plaintiffs’ claims that proceeded

to trial (counts I to III) were based on Defendants’ alleged
violations of the Fair Labor Standards Act (“FLSA”) and the

1

This memorandum opinion includes only the facts relevant
to the disposition of the presently pending motion.
A full
procedural history and factual description of the dispute
between the parties can be found in previous opinions.
(ECF
Nos. 12, 14, 53, 56, and 92).

Maryland

Wage

and

Hour

Law

(“MWHL”)

Plaintiffs minimum wage and overtime.
it

was

determined

at

summary

for

failing

to

pay

Under the FLSA and MWHL,

judgment

that

Plaintiffs

were

employees of Defendants and Defendants were employers, but there
was a genuine dispute over whether Plaintiffs performed work for
which

they

were

improperly

compensated,

and

this

issue

was

case

and

moved

for

reserved for trial.
At

trial,

following
judgment

the
as

following
close

a

Procedure 50(a).

of

matter

the
all

of

close

of

evidence,

law

pursuant

Plaintiffs’
Defendants
to

Federal

Rule

of

The undersigned denied this motion finding

that there was evidence upon which a reasonable jury could find
for Plaintiffs.
After hearing all testimony at trial, the jury was given
instructions, part of which provided guidance on how to assess
damages for each Plaintiff:
For each plaintiff, you will determine the
number of weeks she worked during the
applicable time frame, the schedule she
kept, the number of hours she worked each
week, and the weekly amount she had to pay
to Defendants.
Then you will calculate the
amount due, by multiplying the weeks worked
by
the
hours
worked
each
week
and
multiplying the minimum wage of $7.25 for
regular hours and $10.88 for any hours in
excess of 40 per week.
You well then add
the weekly amount each paid to Defendants to
reach a total amount due.

2

As to each plaintiff, you will also be asked
to determine the portion of the total amount
that is due for work after a certain date.
The
court
needs
you
to
make
that
determination in order to finalize any award
in this case.
Defendants objected to the jury instructions on the grounds
that

the

purpose

instructions

and

of

the

the
verdict

FLSA

was

sheet

not

was

not

included
detailed

in

the

enough.

Defendants requested inter alia that the verdict sheet require
the jury to make more specific findings regarding:

whether each

Plaintiff had proven by a preponderance of the evidence that she
had performed work for Defendants; the time period that each
Plaintiff performed work for Defendants; and the hours per week
that each Plaintiff worked for Defendants in each calendar year.
Plaintiffs argued that a more detailed verdict sheet would not
be helpful to the jury and the additions suggested by Defendants
were superfluous.

The undersigned agreed.

After deliberating for a day and a half, the jury returned
verdicts as to the amount of damages to which each Plaintiff was
entitled

under

the

MWHL

based

on

a

three

year

statute

of

limitations:2

2

As noted in the prior opinion, Plaintiffs established
Defendants’ violation of the FLSA and MWHL, but could only
recover damages under one of these statutes for unpaid wages
because the relief they provide is duplicative.
Plaintiffs
chose to seek damages under the MWHL because its statute of
limitations is three years, whereas the FLSA statute of
3

Laura McFeeley:

$68,360

Danielle Everett:
Crystal Nelson:

$10,764

$34,190

Dannielle Arlean McKay:
Jenny Garcia:

$17,541.50

$10,976

Patrice Howell:

$55,125

The jury also determined the amount of unpaid wages that
were due to Plaintiffs for work performed within the two-year
look-back period for the FLSA in order for the court to award
liquidated damages.

The issue of liquidated damages was tried

to the court, but a jury identification of damages within a
specified period of time was necessary.

Based on Defendants’

testimony regarding its efforts to comply with the FLSA, the
court found that Defendants did not act in good faith to comply
with the FLSA prior to September 2011, but following September
2011 Defendants acted in good faith because they consulted an
attorney regarding their relationship with the clubs’ dancers.
In

the

February

Plaintiffs

were

10,

2015

awarded

the

memorandum
following

opinion
amount

and
of

judgment,
liquidated

damages, which were based on the jury’s determination of damages
that accrued as of and after the FLSA’s two year look-back date,

limitations is two years unless plaintiffs prove a defendant’s
violation is willful.
4

which

were

reduced

to

account

for

Defendants’

good

faith

following September 2011:
Laura McFeeley:

$35,000

Danielle Everett:
Crystal Nelson:

$7,000

$8,000

Dannielle Arlean McKay:
Jenny Garcia:

$520

$9,400

Patrice Howell:

$8,400

Ms. McFeeley and Ms. Nelson’s damages were reduced by $1,640 and
$640,

respectively,

based

on

offset

amounts

the

parties

had

stipulated to prior to trial.
II.

Analysis
A.

Judgment Notwithstanding the Verdict

On

February

20,

2015,

Defendants

moved

for

judgment

notwithstanding the verdict (“JNOV”) under Federal Rule of Civil
Procedure

50(b)

as

to

Plaintiffs

Danielle

Everett,

Crystal

Nelson, Laura McFeeley, Jenny Garcia, and Patrice Howell.
No.

94).

Federal

Rule

of

Civil

Procedure

50

(ECF

governs

the

requirements for making both initial and renewed motions for
judgment as a matter of law.

Rule 50(b) provides that a party

may file a renewed motion for judgment, also known as JNOV, as a
matter

of

judgment.

law
A

within
court

twenty-eight

may

grant

JNOV

days
if

after
“there

the
is

entry
no

of

legally

sufficient evidentiary basis for a reasonable jury to find in
5

favor of that party on that issue.”
making

this

determination,

“the

Fed.R.Civ.P. 50(a).

judge

is

not

to

In

weigh

the

evidence or appraise the credibility of the witnesses, but must
view the evidence in the light most favorable to the non-moving
party and draw legitimate inferences in its favor.”

Anheuser-

Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 318 (4th Cir.
1992) (citations omitted).
Defendants argue that JNOV is warranted as to Ms. Everett
because the only explanation for the amount of damages she was
awarded

is

that

the

jury

did

not

recall

that

Ms.

Everett

testified to working intermittently at four other exotic dance
clubs while working at Defendants’ clubs.

Defendants also argue

that JNOV should be granted as to Ms. Nelson because the damages
she was awarded are not warranted based on her testimony that
she took several breaks in her employment with Defendants and
that she worked at a second exotic dance club during some of the
period she worked at Defendants’ clubs.
contend

that

the

jury’s

Garcia,

and

Howell

were

verdicts
not

as

Finally, Defendants

to

Plaintiffs

reasonably

supported

McFeeley,
by

their

testimony because none of these Plaintiffs gave a reasonably
certain start date, and each of them had day jobs and minor
children to care for during the time they worked for Defendants.
Plaintiffs
attempts

to

respond

“poke

holes”

that
in

Defendants’
Plaintiffs’
6

motion
testimony,

for

JNOV

just

as

Defendants attempted to do at trial.
According

to

Plaintiffs,

Defendants

(ECF No. 97, at 2-3).
arguments

for

JNOV

are

centered on the credibility of Plaintiffs’ testimony, which is
not an appropriate ground for granting JNOV.

Plaintiffs contend

that in reviewing a motion for JNOV the court cannot “weigh the
evidence or assess the credibility of witnesses” nor is it free
to “substitute its judgment of the facts for that of the jury.”
(Id.).

Plaintiffs add that based on the jury’s verdicts, which

did not award the full damages amounts requested by Plaintiffs,
it is clear that the jury considered all of the evidence it was
presented.
When bringing suit under the FLSA, the employee has the
initial burden of proving that she “performed work for which
[she] was improperly compensated and [] produc[ing] sufficient
evidence to show the amount and extent of that work as a matter
of just and reasonable inference.”
Pottery Co., 328 U.S. 680, 687 (1946).
to

the

employer

to

rebut

the

prima

Anderson v. Mt. Clemens
The burden then shifts
facie

case

by

“com[ing]

forward with evidence of the precise amount of work performed or
with evidence to negative the reasonableness of the inference to
be drawn from the employee’s evidence.”

Id. at 687-88.

If the

employer fails to rebut the inference, the employee is entitled
to damages even though her estimate of wages due may only be
approximate.

The FLSA places the burden on the employer to keep
7

proper records of employees’ wages owed, hours worked, and other
conditions

and

practices

of

employment.

Id.

at

687.

Accordingly, when employment records are inaccurate, inadequate,
or, as in this case, nonexistent, the court “is not to penalize
the employee by denying [her] recovery on the ground that [she]
is unable to prove the precise extent of uncompensated work.”
Donavan v. Kentwood Dev. Co., Inc., 549 F.Supp. 480, 485 (D.Md.
1982);

see

also

Anderson,

328

U.S.

at

688

(“[T]he

employer

cannot be heard to complain that the damages lack the exactness
and precision of measurement that would be possible had [it]
kept records in accordance with the requirements of . . . the
[FLSA].”).
Here, Defendants failed to keep any records of Plaintiffs’
days and hours worked or the dates when Plaintiffs commenced and
stopped performing work at Defendants’ clubs.

Therefore, in

order to estimate the wages due to each Plaintiff, Plaintiffs
testified

at

trial

to

their

best

recollection

of

their:

approximate start and end dates of employment with Defendants,
general work schedule at each club, approximate number of hours
worked per week, total number of weeks worked for Defendants,
and the average amount of tip-in fees they paid to Defendants
per week.
Extasy,

Uwa Offiah, owner of the exotic dance clubs Fuego and

and

Doguy

Kamara,

Operations

Manager

at

the

clubs,

testified on behalf of Defendants concerning, inter alia, the
8

clubs’ hours of operation, dancers’ normal arrival times at the
clubs, and the tip-in fee amounts the clubs charged dancers.
Although

Defendants

had

no

employment

records

and

their

witnesses had no personal recollection of the hours worked by
Plaintiffs, Defendants attempted to rebut the reasonableness of
Plaintiffs’

damages

estimates

by

challenging

Plaintiffs’

recollections of their hours works and start and end dates.
Defendants also tried to discredit various Plaintiffs’ testimony
by pointing out that while working at the clubs, Plaintiffs had
other jobs, small children, or other obligations that consumed
their time.

In addition, Defendants pointed out that Plaintiffs

often worked at two or more exotic dance clubs during the same
time

frame.

including

Defendants

Ms.

also

Everett,

cross-examined

about

their

some

involvement

collectives against other exotic dance clubs.
Defendants

questioned

claimed

have

to

worked

Plaintiffs
at

these

regarding
other

Plaintiffs,
in

FLSA

In particular,
the

hours

they

in

their

other

clubs

lawsuits, which in some instances overlapped with the timeframes
they had testified to working for Defendants’ clubs.
Following

the

close

of

all

evidence,

the

jury

was

instructed appropriately on the applicable legal principles at
issue in the case, how to evaluate the evidence presented by the
parties, and the method for calculating damages.

Of particular

relevance in this case, the jury was instructed on the factors
9

to consider when evaluating the credibility of a witness.

In

addition, the jury was instructed on the applicable law and the
background of the case, including that Plaintiffs were employees
of Defendants who were entitled to minimum wage and overtime
pay.

The jury was informed that Defendants had conceded that

they

did

not

pay

Plaintiffs

wages

Plaintiffs worked for Defendants.

during

the

time

that

The jury was also instructed

that each Plaintiff was required to prove by a preponderance of
the evidence that she worked hours for which she was not paid
minimum wage.

Finally, as discussed above, the jury was given

the formula for computing the wages owed to each Plaintiff.
Based on the testimony adduced at trial and in accordance
with

instructions

determined

that

provided
every

by

the

Plaintiff

undersigned,
had

the

established

jury
by

a

preponderance of the evidence that she performed work for which
she

was

owed

compensation

by

Defendants.

For

all

but

one

Plaintiff, the jury reduced the amounts that Plaintiffs asserted
were

owed

to

them

by

Defendants.3

3

For

example,

Ms.

Howell

The jury fully credited Ms. Garcia’s testimony, awarding
her the full amount of damages she asserted that she was
entitled to from Defendants.
The jury made this award despite
the fact that Plaintiffs’ counsel miscalculated the amounts due
to Ms. Garcia in their closing arguments, asserting that she was
owed $10,164. The jury independently calculated the amount she
was owed and awarded Ms. Garcia $10,976 in damages, which was
the proper amount based on her testimony that she worked
approximately 32 hours per week for 28 weeks and paid on average
$160 per week in tip-in fees.
10

testified that she worked for Defendants for approximately 32
hours per week for 162 weeks, and that on average she paid $150
in tip-in fees per week for which she was owed reimbursement.
If the jury had fully credited Ms. Howell’s testimony and the
time period during which she performed this work fell entirely
within the statute of limitations period, she would have been
owed

$61,884

damages,

in

meaning

damages.
that

the

The
jury

jury

awarded

found

her

her

$55,125

testimony

in

largely

credible, and only made a modest reduction to the amount of
damages

it

awarded

her.

On

the

other

hand,

Ms.

Everett

testified that she worked two different schedules at Defendants’
clubs:

(1) from September 9, 2009 until September 30, 2010 (52

week period) she worked approximately 32 hours per week and paid
$150 in tip-in fees per week; and (2) from October 1, 2010 until
October 31, 2011 (56 week period) she worked approximately 32-33
hours per week and paid $180 in tip-in fees per week.

If the

jury fully credited her testimony, she would have been owed
$43,342.
damages,

The jury awarded Ms. Everett $10,764 in compensatory
meaning

that

it

found

her

testimony

only

partially

credible and reduced her damages accordingly.
Defendants’ motion for JNOV will be denied because it asks
the undersigned to re-appraise the credibility of Plaintiffs,
which is not within the undersigned’s purview when reviewing a
motion for JNOV.

Based on the damages amounts awarded by the
11

jury, none of which reflected the exact amount requested by
Plaintiffs,

it

is

clear

that

the

jury

weighed

all

of

the

testimony presented by the parties to arrive at its verdict.
Moreover, viewing the testimony from trial in the light most
favorable

to

Plaintiffs,

a

reasonable

jury

could

find

that

Plaintiffs were entitled to their respective damages amounts.
B.

New Trial

Defendants have moved, in the alternative, for a new trial
under Federal Rule of Civil Procedure 59(a).

Under Rule 59(a),

a court may weigh the evidence and consider the credibility of
witnesses,

and

grant

a

new

trial

if:

“(1)

the

verdict

is

against the clear weight of the evidence, or (2) is based upon
evidence which is false, or (3) will result in a miscarriage of
justice, even though there may be substantial evidence which
would prevent the direction of a verdict.”
Stores,

Inc.,

omitted).

144

F.3d

294,

301

(4th

Cline v. Wal-Mart

Cir.

1998)

(citations

“The decision to grant or deny a new trial is within

the sound discretion of the district court[.]”
Defendants

first

argue

that

the

verdict

Id.
is

against

the

clear weight of the evidence for Plaintiffs Everett, Nelson,
McFeeley, Garcia, and Howell based on the same arguments made in
their JNOV motion.

Defendants’ remaining arguments for granting

a new trial are not based on the weight of the evidence or the
giving of false evidence; rather, Defendants point to several
12

alleged

errors

resulted

in

that

a

occurred

miscarriage

instructions

and

performance

fees

verdict

during

of

justice:

sheet;

received

trial

by

(2)

that

(1)

errors

excluding

Plaintiffs;

purportedly
in

jury

questioning

(3)

on

inconsistent

verdict; and (4) compromise verdict.
1.
As

Weight of the Evidence
discussed

regarding

the

above,

damages

the

owed

only

to

evidence

Plaintiffs

adduced

was

at

trial

testimony

from

Plaintiffs providing an approximation of the wages they were
due, and cross-examination of Plaintiffs during which Defendants
attempted

to

call

into

Plaintiffs’ assertions.

question

the

reasonableness

of

Defendants also provided testimony from

Uwa Offiah and Doguy Kamara.
After reviewing the testimony adduced at trial, the weight
of the evidence supports the jury’s damages awards for each
Plaintiff.4

4

Defendants also assert that a new trial should be granted
because the verdict was inconsistent on its face because the
jury awarded damages to Plaintiffs Everett and Nelson “when
their uncontested testimony clearly established that they did
not work at Defendants’ establishment[s] during those period[.]”
(ECF No. 94, at 12).
Defendants’ use of the term “inconsistent verdict” is
misplaced, as a verdict is only inconsistent when answers to
special verdict questions are irreconcilable with each other or
when special verdicts are irreconcilable with the general
verdict. Fed.R.Civ.P. 49(b)(3)-(4). That is not the situation
here, where the special verdicts returned by the jury were
consistent with each other.
Defendants’ argument seems to be
13

2.

Miscarriage of Justice

a.

Jury Instructions and Verdict Sheet

Defendants

contend

that

a

new

trial

should

be

granted

because the jury instructions did not include the purpose of the
FLSA,

which

verdict.

would

have

Defendants

assisted

also

argue

the
that

jury
a

new

in

rendering

trial

should

its
be

granted because the limited amount of information on the jury
verdict

sheet

confused

the

jury

and

did

not

appropriately

address the legal burdens of each party.
As noted by the United States Court of Appeals for the
Fourth Circuit in Hardin v. Ski Venture, Inc., 50 F.3d 1291,
1293-94 (4th Cir. 1995):
District courts are necessarily vested with
a great deal of discretion in constructing
the specific form and content of jury
instructions. Price v. Glosson Motor Lines,
Inc., 509 F.2d 1033, 1036 (4th Cir. 1975).
By no means are they required to accept all
the suggested instructions offered by the
parties.
See, e.g., Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 556 (D.C. Cir.
1993). So long as the charge is accurate on
the law and does not confuse or mislead the
jury, it is not erroneous.
Spell v.
McDaniel, 824 F.2d 1380, 1395 (4th Cir.
1987), cert. denied sub. nom., City of
Fayetteville v. Spell, 484 U.S. 1027, 108
S.Ct. 752, 98 L.Ed.2d 765 (1988). A set of
legally accurate instructions that does not
effectively direct a verdict for one side or
the other is generally adequate. On review,
challenging whether the weight of the evidence supports the
verdicts for Plaintiffs Everett and Nelson, an argument which
has already been rejected.
14

jury instructions must also be viewed as a
whole.
Thornhill v. Donnkenny, Inc., 823
F.2d 782, 787 (4th Cir. 1987).
Id.
When the jury instructions and verdict sheet are considered
in their entirety, neither the undersigned’s refusal to include
the purpose of the FLSA in the jury instructions nor the layout
of the verdict sheet resulted in a miscarriage of justice.

When

read as a whole, the jury instructions provided an accurate
overview of the legal principles at issue in the trial and were
fair and balanced to both sides.

In addition, the instructions

provided the jury clear instructions on how it should evaluate
the

testimony

damages.

provided

by

the

parties

and

how

to

calculate

Defendants have not shown that the jury was misled or

confused by the absence of the instruction on the purpose of the
FLSA.

Similarly, the fact that the jury asked a question during

its deliberations about why it had been asked to determine the
second amount on the jury form (the liquidated damages amount)
(ECF No. 90, at 6), does not indicate that the verdict sheet or
instructions were misleading or confusing.

Rather, it shows the

jury’s curiosity about one of the fact-finding tasks it had been
given.

The undersigned adequately responded to this inquiry by

informing

the

compensatory

jury
damages

that

its

based

verdict
on

a

was
three

the
year

first

line

statute

—
of

limitations under the MWHL — but that there were “aspects of the
15

case [] that the court must decide after the jury returned its
verdict

that

would

depend

on

the

second

line”

—

liquidated

damages based on a two year statute of limitations under the
FLSA.

(ECF

No.

90,

at

8).

Moreover,

the

damages

amounts

returned by the jury evidence that, despite the jury’s minimal
knowledge

on

why

they

were

asked

to

perform

the

second

liquidated damages calculation, the jurors were fully capable of
complying with the instructions, as the amounts awarded reflect
the jury’s understanding of its task.
b.

Exclusion of Performance Fee Testimony

Defendants
because

the

questioning

aver

that

undersigned
Plaintiffs

they

should

improperly

regarding

be

given

a

prohibited

performance

fees,

new

trial

them

from

a

line

of

questioning that purportedly would have shown that Defendants
were not liable to Plaintiffs for wages because Plaintiffs were
earning above minimum wage based on the performance fees they
received from customers.
“Errors made in [evidentiary rulings] warrant a new trial
if they constitute an abuse of discretion.”

Dawson v. Page, 286

F.Supp.2d 617, 625 (M.D.N.C. 2003) (citing Sasaki v. Class, 92
F.3d 232, 241 (4th Cir. 1996)).

Federal Rule of Evidence 401

defines “relevant evidence” as “evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
16

it

would

“[a]ll

be

without

relevant

the

evidence

evidence.”
is

Rule

admissible,

402

provides

except

as

that

otherwise

provided by the Constitution of the United State, by Act of
Congress, by these rules, or by other rules prescribed by the
Supreme Court pursuant to statutory authority[.]”

Rule 403,

which provides for exclusion of relevant evidence on various
grounds, states that:

“[a]lthough relevant, evidence may be

excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury[.]”
In the September 15, 2014 memorandum opinion and order,
Plaintiffs

were

counterclaims

for

denied
breach

summary
of

judgment

contract

and

as

to

unjust

Defendants’
enrichment

because there was a genuine dispute over whether the performance
fees paid to Plaintiffs constituted “service charges” under the
FLSA that could offset Defendants’ statutory wage obligations.
Prior to trial, Plaintiffs filed a motion in limine requesting,
inter alia, exclusion under Federal Rule of Evidence Rule 403 of
any testimony or documents relating to Defendants’ argument that
performance fees received by Plaintiffs were “service charges”
within the meaning of the FLSA that could be used to offset
Defendants’ wage obligations.

(ECF No. 65).

A motions hearing

addressing Plaintiffs’ motion in limine was held on January 20,
2015.

At this hearing, Defendants were asked what evidence they
17

had

to

show

the

exact

amounts

Plaintiffs

had

received

in

performance fees, evidence an employer must produce in order to
receive an offset of its statutory wage obligations.

Defendants

admitted that they had only a few pages of documentation from
their clubs showing the amount of performance fees received by
Plaintiffs.

Defendants were told that any wage offset would be

limited to the amounts Defendants could actually prove had been
paid to Plaintiffs.5
submitted

Following the motions hearing, Defendants

documentation

showing

only

a

few

days’

worth

of

performance fees that had been paid to Plaintiffs McFeeley and
Nelson; they had no evidence concerning performance fees paid to

5

The undersigned did not reach the issue of whether the
performance fees paid by customers to Plaintiffs constituted
“service
charges”
under
the
FLSA
capable
of
satisfying
Defendants’ wage obligations because, even if the performance
fees were found to be “service charges,” Defendants could not
claim a wage offset because they did not meet their statutory
obligation to keep records, and therefore, had no proof that
these disputed fees had actually been paid to Plaintiffs.
See
Ruffin v. Entm’t of the E. Panhandle, No. 3:11-CV-19, 2012 WL
761658, at *2-3 (N.D.W.Va. Mar. 7, 2012) (denying defendants a
FLSA wage credit for the performance fees paid to plaintiff, who
was an exotic dancer, because defendants had not met their
burden of “proving the amount of the mandatory minimum dance
fees retained by the plaintiff” seeing as they kept no records
of the amounts paid to the plaintiff); see also Morrisroe v.
Goldsboro Milling Co., 884 F.Supp. 192 (E.D.N.C. 1994) (finding
that employers could only take a boarding and lodging credit
against back wages owed to employees if they complied with
recordkeeping provisions in 29 § 516.27 and could prove the
costs they incurred in furnishing boarding and lodging to
employees); see also 29 C.F.R. § 516.28 (noting that for “tipped
employees” an employer must keep record of, inter alia, the
amount of tips received by the employee, the amount of wages
paid to the employee, and the hours worked by the employee).
18

the remaining Plaintiffs.

Thereafter, Plaintiffs submitted a

supplemental motion in limine stipulating to the offset amounts
for

Plaintiffs

provided

McFeeley

supporting

and

Nelson

documentation

for

and

which

renewing

Defendants
their

had

request

that the court exclude at trial all testimony and documentation
relating
working.

to

the

performance

(ECF No. 74).

fees

Plaintiffs

received

while

In response, the undersigned issued a

letter to counsel on January 29, 2015, in which Defendants were
directed to “notify the court and opposing counsel if it is
unwilling

to

accept

concerning

the

set

Plaintiffs’

off.

most

Otherwise,

the

recent
issue

concession

of

serve

offsets does not need to be presented to the jury.”
76).

Defendants did not respond.

fee

(ECF No.

Accordingly, it was assumed

that Defendants had consented to the offset concession offered
by

Plaintiffs,

and

the

offsets

were

reflected

in

the

undersigned’s February 10, 2015 memorandum opinion and judgment.
(ECF Nos. 92 and 93).
Because the issue of service charge offsets was settled
prior to trial, during trial the undersigned limited Defendants’
questioning of Plaintiffs regarding the performance fees they
received.

For example, Defendants were permitted to ask general

questions about how the clubs operated, including the amounts
and

processes

exotic dances.

by

which

customers

paid

Plaintiffs

to

perform

Plaintiffs’ objections to Defendants’ questions
19

regarding

the

aggregate

amounts

Plaintiffs’

“earned”

in

performance fees, however, were sustained, as it had already
been

determined

that

the

performance

fees

could

not

offset

Defendants wage obligations as either a “tip credit” or “service
charge” under the FLSA due to Defendants’ failure to follow the
proper

procedures

to

claim

such

a

credit.

Therefore,

the

undersigned determined that excluding this line of questioning
was

proper

under

Rule

403

because

it

unnecessarily

risked

confusing the jury about what constituted a wage under the FLSA
and the amount of wages that were owed to Plaintiffs.

For the

foregoing reasons, the evidentiary rulings on performance fee
testimony do not constitute an abuse of discretion entitling
Defendants to a new trial.
c.

Compromise Verdict

Defendants argue that a new trial should be granted because
the jury’s verdict was compromised.
“jury

deliberated

from

Defendants note that the

approximately

1:00

p.m.

on

Thursday

through 4:30 p.m. on Friday” and that around 4:30 on Friday sent
a note which read “we cannot come to a decision,” a statement
which had been crossed out and below it was written:

“we have

reached a verdict but need a few minutes to reach a verdict[.]”
(ECF No. 90, at 15).

Defendants conclude based on this note

alone that “[c]learly the jury compromised on a verdict rather
than returning to deliberate on Monday.”
20

(ECF No. 94, at 12).

“[A] compromise verdict results when jurors resolve their
inability

to

unanimity

on

make
the

a

determination

issue

of

liability

with
by

any

certainty

finding

or

inadequate

damages[;]” “an insufficient damages verdict, standing alone,
[however,] does not necessarily indicate compromise.”

Gries v.

Zimmer, Inc., 940 F.2d 652, at *9 (4th Cir. 1991) (unpublished
table

decision)

(internal

quotation

marks

omitted)

(quoting

Mekdeci By and Through Mekdeci v. Merrell Nat’l Laboratories,
711 F.2d 1510, 1513 (11th Cir. 1983)); see Boesing v. Spiess, 540
F.3d 886, 889 (8th Cir. 2008) (“A compromise verdict results when
the jury, unable to agree on the issue of liability, compromises
that disagreement by awarding a party inadequate damages.”).

As

noted by the Fourth Circuit in Gries, “[w]e have held that a new
trial on all issues is necessary if the verdict could only have
been a sympathy or compromise verdict . . .[b]ut where there is
no substantial indication that the liability and damage issues
are inextricably interwoven . . . a second trial limited to
damages is entirely proper.”
quotation marks omitted).

Id. at *10 (internal citation and
The Fourth Circuit also indicated

that the pertinent factors for assessing whether a verdict is a
compromise verdict are:
(1) clarity of the jury instructions and
verdict form; (2) length of the jury
deliberations; (3) strength of the evidence
as to liability; (4) questions and notes
from the jury during deliberations; and (5)
21

whether the case involved a sympathetic
plaintiff and unsympathetic defendant.
Id. (quoting Spell, 604 F.Supp. 641, 651 (E.D.N.C. 1985), aff’d
in part and vacated in part, 824 F.2d. 1380 (4th Cir. 1987)).
There is no indication that the jury issued a compromise
verdict, especially considering that liability was established
before

trial

damages.

and

the

jury’s

verdict

was

rendered

only

on

The jury deliberated for a day and a half before

delivering its verdict.

The undersigned informed the jury via

note on Friday afternoon that, if its deliberations needed to
continue “for some time,” it was free to adjourn for the weekend
and return on Monday.

(ECF No. 90, at 13).

In response, the

jury responded at 3:48 p.m. that it would deliberate until 4:30
p.m. and if it had not reached a verdict at that point, then it
would resume deliberations on Monday at 9 a.m.

(Id. at 14).

At

4:37 p.m., the undersigned received a final note from the jury
indicating that it had “reached a verdict but need[ed] a few
minutes to reach a verdict” suggesting that it had reached an
agreement but needed a few additional minutes to fill out the
verdict sheet or finish calculating the damages amounts.
No. 90, at 15).

(ECF

Simply because the jury’s verdict was rendered

on a Friday afternoon and its note from earlier in the day
indicated

that

it

had

not

yet

reached

a

verdict,

does

not

indicate that when the jury finally arrived at damages amounts

22

for

each

haste.

Plaintiff

that

it

was

the

result

of

compromise

or

See Gries, 940 F.2d at *10 (“We do not believe that the

mere fact that a verdict is handed down on a Friday afternoon
means that it is, per se, a compromise verdict.”).

Moreover,

the damages amounts themselves are not indicative of compromise.
As discussed above, the damages amounts reflect that the jury
took into consideration all of the testimony it heard to arrive
at Plaintiffs’ damages amounts.

Cf. Nat’l Fire Ins. Co. of

Hartford v. Great Lakes Warehouse Corp., 261 F.2d 35, 37 (7th
Cir. 1958) (finding it was not “a mere coincidence” but rather a
compromise verdict where the jury awarded one-half of the amount
of loss as established by the undisputed evidence).
III. Conclusion
For

the

foregoing

reasons,

the

motion

for

judgment

notwithstanding the verdict, or in the alternative, for a new
trial filed by Defendants will be denied.

A separate order will

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

23