Seibert v. Jackson County, Mississippi et al
ORDER denying 147 Motion for New Trial Signed by District Judge Keith Starrett on 6/29/2017 (dtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 1:14-CV-188-KS-MTP
JACKSON COUNTY, MISSISSIPPI, et al.
MEMORANDUM OPINION AND ORDER
For the reasons below, the Court denies Defendant Michael Byrd’s Motion for
New Trial .
The Court provided the factual background of this case in its Memorandum
Opinion and Order  of August 5, 2015. Seibert v. Jackson County, Miss., No. 1:14CV-188-KS-MTP, 2015 U.S. Dist. LEXIS 102632, at *1-*2 (S.D. Miss. Aug. 5, 2015).
The Court held a jury trial on September 14-16, 2015. The jury returned a verdict 
in favor of Plaintiff as to her claim of intentional infliction of emotional distress
(“IIED”) against Defendant Byrd in his individual capacity, and it awarded her
$260,000.00 in damages. But it found in favor of Defendants as to Plaintiff’s sexual
Both Byrd and Plaintiff filed post-trial motions. The Court granted Defendant
Byrd’s Motion for Judgment as a Matter of Law (“JMOL”)  as to Plaintiff’s IIED
claim. Seibert v. Jackson County, No. 1:14-CV-188-KS-MTP, 2015 U.S. Dist. LEXIS
164977, at *8 (S.D. Miss. Dec. 9, 2015). Byrd argued in the alternative that he was
entitled to a new trial, a remittitur, or a new trial on damages, but the Court did not
address those arguments.1 The Court denied Plaintiff’s Motion for JMOL or New Trial
 as to her sexual harassment claims. Id. at *14.
Plaintiff appealed the Court’s decision, but Byrd did not file a conditional crossappeal. The Court of Appeals reversed in part, affirmed in part, and remanded. Seibert
v. Jackson County, 851 F.3d 430, 432 (5th Cir. 2017). Specifically, the Court of Appeals
held that the Court erred in granting Byrd’s motion for JMOL as to the IIED claim,
and it remanded with instructions to reinstate the jury’s verdict. Id. at 438. It affirmed
the Court’s rulings in all other respects. Id. 440.
After this Court received the mandate , it entered an Order 
reinstating the jury’s verdict against Byrd in his individual capacity in the amount of
$260,000.00. Byrd then filed a Motion for New Trial  as to Plaintiff’s IIED claim
or, alternatively, a remittitur or new trial on damages.
Among other things, Plaintiff argues that Byrd is barred from pursuing a new
trial, remittitur, or new trial on damages because he did not file a conditional crossappeal on those issues. After considering the parties’ briefs and the applicable law, the
A “party who prevails in the district court is permitted to conditionally raise
The Court erred in not addressing Byrd’s motion for new trial. Rule 50
specifically provides: “If the court grants a renewed motion for judgment as a
matter of law, 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).
issues in a cross-appeal because if the appellate court decides to vacate or modify the
trial court’s judgment, the judgment may become adverse to the cross-appellant’s
interest.” ART Midwest Inc. v. Atlantic Ltd. P’ship XII, 742 F.3d 206, 211 (5th Cir.
2014). “The waiver doctrine holds that an issue that could have been but was not raised
on appeal is forfeited and may not be revisited by the district court on remand.”
Lindquist v. City of Pasadena, 669 F.3d 225, 239 (5th Cir. 2012). Therefore, because
Byrd could have filed a conditional cross-appeal on the issues of a new trial on the IIED
claim, a remittitur, or a new trial on damages, his failure to do so constitutes a waiver
of those arguments, and they may not be addressed by this Court on remand. Id.
Likewise, some articulations of the “mandate rule” and “cross-appeal rule” would
bar consideration of these issues on remand from the appellate court. See, e.g. United
States v. Griffith, 522 F.3d 607, 610 (5th Cir. 2008) (pursuant to the mandate rule, all
issues not addressed by the appellate court and not raised in the appellate court which
could have been brought in the original appeal are not proper for the district court’s
consideration on remand); ART Midwest, 742 F.3d at 212 (appellee’s decision to not
conditionally cross-appeal jury’s findings from initial district court proceeding barred
them from raising the same claims in second proceeding after remand); United States
v. Washington, 626 F. App’x 485, 489 n. 5 (5th Cir. 2015) (because issue could have
been raised on appeal but wasn’t, the mandate rule barred the district court from
considering the issue).
Also, Rule 59 permits the Court to grant a new trial “for any reason for which
a new trial has heretofore been granted in an action at law in federal court . . . .” FED.
R. CIV. P. 59(a)(1)(A). Byrd argues that the Court should grant him a new trial on the
IIED claim because the verdict is against the weight of the evidence. Under Fifth
Circuit precedent, “a trial court should not grant a new trial on evidentiary grounds
unless the verdict is against the great weight of the evidence.” Seibert, 851 F.3d at 439.
“In other words, the movant must show an absolute absence of evidence to support the
jury’s verdict.” Id. Here, there was evidence to support the jury’s verdict as to
Plaintiff’s IIED claim. Specifically, Plaintiff’s trial testimony as to Byrd’s pattern of
sexual advances, lewd comments, groping, and threats to demote her if she did not
acquiesce were enough to support the jury’s verdict. See id. at 438 (describing
Plaintiff’s trial testimony in detail). Indeed, the Mississippi Supreme Court has
specifically noted that “a pattern of deliberate, repeated harassment over a period of
time” can constitute IIED in the employment context. Lee v. Golden Triangle Planning
& Dev. Dist., Inc., 797 So. 2d 845, 851 (Miss. 2001).
As for remittitur, the Court must “review with deference damage awards based
on intangible harm, because the harm is subjective and evaluating depends
considerably on the demeanor of witnesses.” Tureaud v. Grambling State Univ., 294
F. App’x 909, 916 (5th Cir. 2008). “There is a strong presumption in favor of affirming
a jury award of damages. The damage award may be overturned only upon a clear
showing of excessiveness . . . .” Giles v. GE, 245 F.3d 474, 488 (5th Cir. 2001). And as
another judge in this state has noted, the Fifth Circuit’s “disposition of motions for the
remittitur of emotional damages varies widely from case to case.” Hardy v. City of
Tupelo, 2009 U.S. Dist. LEXIS 103762, at *66 n. 7 (N.D. Miss. Nov. 2, 2009) (citing
multiple cases). “‘Judgments regarding noneconomic damages are notoriously variable,’
and inherently subjective nature.” Id. (quoting Forsyth v. City of Dallas, 91 F.3d 769,
774 (5th Cir. 1996)); see also McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463,
484 (5th Cir. 2015) (review of emotional distress damages is conducted with deference
to the jury because of the intangibilty of the harms suffered). This Circuit has a
“tradition of . . . strong deference to the jury . . . .”Salinas v. O’Neill, 286 F.3d 827, 832
(5th Cir. 2002). In light of the vulgar, outrageous nature of Byrd’s actions, and his
direct threat to demote Plaintiff if she did not acquiesce to his advances, the Court
declines to reduce the award.
Finally, “[o]rdering a new trial on damages . . . is proper only when the amount
awarded is so excessive as to be the product of passion or prejudice.” GlobeRanger
Corp. v. Software AG United States of America, Inc., 836 F.3d 477, 500 (5th Cir. 2016).
“The size of the award to which a plaintiff is entitled is generally a fact question, and
the reviewing court should be exceedingly hesitant to overturn the decision of the jury
. . . .” McCaig, 788 F.3d at 484. “Absent gross excessiveness,” the Court will not grant
a new trial on damages. Id. For the same reasons provided above, the Court does not
believe the jury’s verdict was grossly excessive. Therefore, a new trial on damages is
For these reasons, the Court denies Defendant Michael Byrd’s Motion for New
SO ORDERED AND ADJUDGED this ___29th__ day of June, 2017.
UNITED STATES DISTRICT JUDGE
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