Swartz et al v. DiCarlo
Filing
260
Opinion and Order. Defendant's Rule 50 Motion and Rule 62 Motion to Stay (Related doc # 254 ) are denied. Judge Christopher A. Boyko on 1/11/2019. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES SWARTZ, JR. ET AL.,
Plaintiff,
vs.
MARK A. DI CARLO,
Defendant.
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CASE NO.1:12CV3112
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
On September 28, 2018, a jury found Defendant Mark A. DiCarlo liable for Defamation
and awarded Plaintiffs damages in the amount of $150,000 in total compensatory damages and
$100,000 in total punitive damages. On October 19, 2018, Defendant filed his Objection to
Punitive Damages and Objections; and Response to Motion for Attorneys Fees; and Rule 50
Motion and Rule 62. (ECF # 254). For the following reasons, the Court denies Defendant’s
Motion.
This case was litigated over the course of nearly six years, ultimately commencing with a
jury trial on September 26, 2018, on one count of Defamation. On September 28, 2018, the jury
returned a verdict for Plaintiffs and against Defendant and awarded Plaintiffs damages in the
above amounts. Breaking down the judgment by individual Plaintiffs, the jury awarded Vilma
Swartz $25,000 in compensatory damages and $33,333 in punitive damages; James Swartz, Jr.
$75,000 in compensatory damages and $33,333 in punitive damages and Toniemarie Swartz
$50,000 in compensatory damages and $33,334 in punitive damages.
Defendant moves for Judgment as a Matter of Law under Fed. R. Civ. P. 50, arguing that
the Court should grant his Motion and deny Plaintiffs punitive damages.1 Defendant contends
that Plaintiffs cannot recover punitive damages because they never established Defendant’s net
worth at trial. According to Defendant, Ohio law bars the award of punitive damages in the
absence of such evidence. Defendant also contends that because punitive damages cannot be
awarded, Plaintiffs are not entitled to attorney fees under Ohio law. Defendant also argues that
Plaintiffs failed to timely move for attorney fees and failed to support their motion for attorney
fees with sufficient proof of those fees. Furthermore, in his Motion for New Trial, Defendant
asserts that punitive damages may not be awarded because the trial court failed to bifurcate
liability issues from the punitive damages issue at trial, causing prejudice to Defendant.
Finally, Defendant moves the Court for a stay of proceedings under Fed R. Civ. P. 62 “as
the Judgment as to punitive damages as it is not supported by any evidence.” (Defendant’s
Motion pg. 6). The rest of the Motion argues against the award of attorney’s fees or challenges
certain representations in support of attorney fees in Plaintiffs’ counsel’s affidavit.
Plaintiffs oppose Defendant’s Motion, arguing that Defendant cannot obtain relief under
Rule 50 because he never raised the issue of the improper award of punitive damages at trial as
required under the Rule. Furthermore, according to Plaintiffs, Ohio law requires the parties to
move for bifurcation. Because Defendant never sought to bifurcate punitive damages from
liability at trial, the award of punitive damages was proper. Also, Plaintiffs argue that the Court
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Defendant also attacks the punitive damages award in his Motion for New Trial.
Many of the arguments raised in that Motion are duplicative of those raised in the
above Motion. However, the Court will also address Defendant’s argument,
raised in his Motion for New Trial, that punitive damages are barred because the
Court did not bifurcate the punitive damages issue from the liability portion of
trial.
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must not reduce the punitive damages award because the award did not exceed the Ohio punitive
damages cap and Ohio law places the burden on Defendant to establish his net worth at trial.
LAW AND ANALYSIS
Rule 50 of the Federal Rules of Civil Procedure reads in pertinent part:
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury
trial and the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue, the court
may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the
party on a claim or defense that, under the controlling law, can be
maintained or defeated only with a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any
time before the case is submitted to the jury. The motion must specify the
judgment sought and the law and facts that entitle the movant to the
judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the
court does not grant a motion for judgment as a matter of law made under Rule
50(a), the court is considered to have submitted the action to the jury subject to
the court's later deciding the legal questions raised by the motion. No later than 28
days after the entry of judgment--or if the motion addresses a jury issue not
decided by a verdict, no later than 28 days after the jury was discharged--the
movant may file a renewed motion for judgment as a matter of law and may
include an alternative or joint request for a new trial under Rule 59.
“In the context of a jury trial, the Federal Rules of Civil Procedure tell parties to speak up
at two times if they want the court to resolve the claim as a matter of law. They must move for
judgment as a matter of law before the claim goes to the jury, see Fed.R.Civ.P. 50(a), and they
must renew the motion (or seek a new trial) after the jury issues its verdict,” see Fed.R.Civ.P.
50(b); Fed.R.Civ.P. 59. Maxwell v. Dodd, 662 F.3d 418, 420–21 (6th Cir. 2011). Here, only
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Plaintiffs moved for a directed verdict at trial before the case was submitted to the jury.
Therefore, because Rule 50(b) applies to “renewed” motions for judgment as a matter of law and
Defendant never moved for judgment before the case was submitted to the jury, the Court finds
Defendant waived any arguments for judgment as a matter of law post-trial under Rule 50(b).
However, even if the Court were to consider Defendant’s arguments for judgment as a
matter of law, they must necessarily fail. The jury awarded punitive damages to each of the
three Plaintiffs, but the punitive damages awarded did not exceed two times the awarded
compensatory damages for any of the three Plaintiffs. Therefore, the jury award of punitive
damages did not exceed Ohio’s punitive damages cap See O.R.C. § 2315.21(D)(2)(a) (Punitive
damages shall not be awarded “in excess of two times the amount of the compensatory damaged
awarded to the plaintiff for that defendant.”).
O.R.C. § 2315.21(D)(b) limits the amount of punitive damages if the defendant is a
small employer or an individual to the lesser of “two times the amount of compensatory damages
awarded” or “ten percent of the employer’s or individual’s net worth when the tort was
committed up to a maximum of three hundred fifty thousand dollars.” Ohio courts that have
considered this issue have either declined to reduce an award of punitive damages where the
amount did not exceed twice the compensatory damages and neither side introduced evidence of
Defendant’s net worth at the time of the tort; See Doepker v. Willo Security, Inc., No. 2007 CA
184, 2008 WL 1850970, *6 (Ohio Ct. of App. 5th Dist. April 7, 2008), or held that its
Defendant’s burden to demonstrate his/her net worth at the time of the tort. See Caraman v.
Bailey, No. 94986, 2011 WL 346298, *1 (Ohio Ct. of App. 8th Dist. Feb. 3, 2011). Because
neither side produced evidence to the jury establishing Defendant’s net worth and because the
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award of punitive damages did not exceed Ohio’s statutory punitive damages cap, the Court
finds Defendant is not entitled to judgment as a matter of law on the issue.
Under Ohio law either party may move the Court to bifurcate punitive damages from the
underlying trial. However, it is not error for the Court to try both at the same trial in the absence
of a motion to bifurcate by the parties. See O.R.C. § 2315.21(B)(1). (“In a tort action that is
tried to a jury and in which a plaintiff makes a claim for compensatory damages and a claim for
punitive or exemplary damages, upon the motion of any party, the trial of the tort action shall be
bifurcated...” (Emphasis added).
Under Ohio law bifurcation is mandatory if Defendants move because the Ohio Supreme
Court has held it is a substantive, not a procedural rule. See Havel v. Villa St. Joseph, 131 Ohio
St.3d 235 (2011) discussing O.R.C. 2315.21(B). But at least one federal district court in this
Circuit has held that regardless how the Ohio Supreme Court characterizes its laws, federal
courts are not bound by these rules if they seek to trump federal procedural rules. See Patel
Family Tr. v. AMCO Ins. Co., No. 2:11-CV-1003, 2012 WL 2883726, at *2 (S.D. Ohio July 13,
2012) (“Just because the Ohio Supreme Court has interpreted Ohio Rev.Code § 2315.21(B) to
provide a “substantive” right to bifurcation does not mean that a federal court is bound by the
characterization. A state's characterization of its own rule as “substantive” instead of
“procedural” must “yield to the strong presumptive validity of the properly promulgated federal
procedural rule, which will be upheld as controlling the procedure in the federal court..”
Federal Rule of Civil Procedure 42(b) allows for separate trials “for convenience, to
avoid prejudice, or to expedite and economize...” But the determination to bifurcate is left to the
discretion of the trial court.
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In the absence of a Motion to Bifurcate by either party, the Court was not obligated to
bifurcate the trial. Furthermore, the Court finds Ohio law does not trump the Federal Rules of
Procedure and it was within the Court’s discretion to bifurcate. Thus, it was not error to try
Plaintiffs’ punitive damages claim with the substantive claims at one trial.
Defendant asks the Court to stay enforcement of the judgment under Fed. R. Civ. P. 62
because the punitive damages award cannot stand in light of Defendant’s arguments made
herein. Because the Court finds Defendant’s arguments attacking the jury’s award of punitive
damages have no merit, the Court denies Defendant’s Motion to Stay. Separately, the Court
further denies the Motion to Stay as Defendant has offered no security.
Finally, Defendant challenges the Plaintiffs’ Motion for Attorney Fees. However,
because those arguments apply to a separate motion filed by Plaintiffs, the Court will not address
the arguments here but reserves them for a separate ruling on Plaintiffs’ Motion for Attorney
Fees.
Therefore, for the foregoing reasons, Defendant’s Motion is denied.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: January 11, 2019
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