Dossett v. First State Bank

• Decision Date: 28 February 2005
• Docket Number: No. 03-2624.,03-2624.
• Parties: Betty Lou DOSSETT, Appellant, v. FIRST STATE BANK, Loomis, Nebraska, Appellee. Betty Lou Dossett, Appellant, v. Lauritzen Corporation, doing business as Financial Services Company, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

399 F.3d 940

Betty Lou DOSSETT, Appellant, v. FIRST STATE BANK, Loomis, Nebraska, Appellee.

Betty Lou Dossett, Appellant, v. Lauritzen Corporation, doing business as Financial Services Company, Appellee.

No. 03-2624.

United States Court of Appeals, Eighth Circuit.

Submitted: June 16, 2004.

Filed: February 28, 2005.

COPYRIGHT MATERIAL OMITTED

Robert P. Chaloupka, argued, Scottsbluff, NE (Maren Lynn Chaloupka, on the brief), for appellant.

Roger L. Shiffermiller, argued, Omaha, NE (Robert F. Rossiter, Jr., Timothy J. Thalken, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, RILEY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Betty Lou Dossett brought this action pursuant to 42 U.S.C. § 1983 against her former employer, First State Bank of Loomis, Nebraska, ("Bank") and the Lauritzen Corporation ("Lauritzen"). Dossett claimed that the defendants conspired with the Loomis School District ("School District") to terminate her employment at the Bank in retaliation for her exercising the constitutional right to freedom of speech at a public school board meeting. Dossett appeals several decisions made by the district court in the trial and re-trial of her case. We affirm in part, reverse in part, and remand for a new trial.

I.

Dossett is a resident of Holdredge in Phelps County, Nebraska. In February 1994, she began working at the Bank, where she "did a little bit of everything," including serving as a teller and bookkeeper. On January 15, 1998, Dossett attended a public meeting held by the Phelps County R-6 School District where the issue of merging with the Loomis School District was discussed. At the meeting, she inquired why no one from the Loomis School District had informed the public about potential tax consequences of the proposed merger.

The Loomis School District was one of the Bank's largest deposit accounts. After the meeting, the Loomis School District superintendent and two members of the Loomis school board spoke about the meeting with employees of the Bank, including the president of the Bank, John Nelsen. The superintendent, Keith Fagot, who also had his personal bank accounts at the Bank, informed Nelsen that he felt Dossett inappropriately had questioned his integrity and the integrity of the Loomis school board members. As a result, Fagot said that he would wait for another teller when visiting the Bank in order to avoid contact with Dossett. Nelsen believed that as superintendent, Fagot had the power to direct the School District's funds elsewhere. Nelsen also heard that school board member Nancy Morse, who maintained a personal account at the Bank, was upset by Dossett's remarks at the meeting. School board member Mike Thorell, a prospective customer of the Bank, also informed Nelsen that he was offended by Dossett's comments and would not be comfortable with her waiting on him as a teller.

Nelsen reported the problem relating to Dossett to Dan O'Neill, the executive vice president of Lauritzen and president of Financial Services Company, a division of Lauritzen. O'Neill testified that Nelsen told him that several customers had threatened to change banks or sever their relationships with the Bank because of Dossett's remarks. Nelsen denied that any of the school board members or the superintendent threatened to remove funds from the Bank or demanded that Dossett be fired. Ultimately, on January 29, 1998 — two weeks after the public meeting regarding the merger — Nelsen terminated Dossett's employment. At the termination meeting, Nelsen informed Dossett that as a result of her comments, the Bank was on the verge of losing two large depositors and loan customers. In a letter, Nelsen further advised Dossett that her employment was terminated because of "comments made by [her] during a meeting on January 15, 1998, which were negative about our local school board and superintendent, thereby reflecting poorly on our community and placing at risk substantial customers of the Bank."

At the end of a first jury trial, the jury returned a verdict in favor of Dossett in the amount of $1,555,678.76. The day after the verdict, the district court sua sponte notified the parties that it was considering the grant of a new trial on both liability and damages, because the court tentatively believed the verdict was excessive and the product of passion and prejudice. After briefing and argument, the court ordered a new trial. With regard to the first trial, Dossett appeals the district court's decisions granting a new trial, granting defendant Lauritzen's motion for judgment as a matter of law, and denying Dossett's request for a punitive damages instruction.

After a second trial, the jury returned a verdict in favor of the Bank. Dossett claims that one of the key jury instructions was erroneous. She complains about an instruction that required her to prove in her First Amendment retaliation claim that the School District superintendent and board members, who allegedly conspired with the Bank, had "actual authority" or "apparent authority" as agents of the School District to enter into an agreement with the Bank to discharge Dossett in retaliation for the comments she made at the school board meeting. Moreover, Dossett claims that she was entitled to further discovery on this element of actual or apparent authority, and that the district court erred in conditioning further discovery on her payment of the Bank's costs in preparing for trial. In addition, Dossett contends that the district judge erred in denying her motion for recusal, a request for a punitive damages instruction, and a motion for a new trial.

II.

At the conclusion of Dossett's case-in-chief in the first trial, on February 11, 2003, the district court entered judgment in favor of Lauritzen pursuant to Federal Rule of Civil Procedure 50(a). When the district court granted a new trial with respect to claims against the Bank on February 28, 2003, it stated that for purposes of Federal Rule of Civil Procedure 54(b), there was no just reason to delay entering a final judgment dismissing with prejudice all claims against Lauritzen. At that point, there was indisputably a final judgment subject to appeal, but Dossett did not file her notice of appeal in this case until June 6, 2003. As a result, Dossett's notice of appeal with respect to Lauritzen was untimely under Federal Rule of Appellate Procedure 4(a)(1)(A), because it was not filed within 30 days after the district court entered judgment in favor of Lauritzen. See Speer v. City of Wynne, 276 F.3d 980, 988 (8th Cir.2002). Accordingly, we lack jurisdiction to address Dossett's claim that the district court erred in granting judgment as a matter of law in favor of Lauritzen. See Browder v. Dir., Dep't of Corrs. of Ill., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (time limit set forth in Federal Rule of Appellate Procedure 4 regarding when to file a notice of appeal is "mandatory and jurisdictional").

III.

After the first trial, the district court advised the parties that the court was considering an order for a new trial on its own motion pursuant to Federal Rule of Civil Procedure 59(d). After consideration of the parties' briefs and oral arguments, the court ordered a new trial on Dossett's First Amendment claim. Relying on Sanford v. Crittenden Memorial Hospital, 141 F.3d 882, 884-86 (8th Cir.1998), the district court granted a new trial because the verdict of $1,555,678.76 was "excessive" and "the finding of liability and the award of damages was the product of passion and prejudice." (J.A. at 183). Under our precedents, review of the district court's decision to grant a new trial based on the size of the verdict is "extraordinarily deferential," in view of the opportunity of the district court to hear the testimony, observe the demeanor of the witnesses, and know the community and its standards. Sanford, 141 F.3d at 884; see also Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-48 (8th Cir.1961).

We cannot say that the district court abused its discretion in finding that the jury's verdict of over $1.5 million was excessive and a product of passion and prejudice. The jury was instructed to base any award only on actual damages, which in this case included lost wages and "emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and reputation damage." (J.A. at 155). The jury was not instructed to consider punitive damages. Because the parties stipulated that the amount of Dossett's lost wages was $55,678.76, (id. at 513), it follows that the jury awarded Dossett exactly $1.5 million for pain, suffering, and other non-economic damages. Even Dossett's attorney was not so bold as to argue for anything close to that sum. During closing arguments, he urged only a total of $500,000 in damages.

The first jury's award, as far as we can tell, would represent an unprecedented amount of damages in a First Amendment retaliation case. Dossett has not identified any comparable award, and our precedents generally involve damages well below the seven-figure sum at issue here. See, e.g., Naucke v. City of Park Hills, 284 F.3d 923, 926-27, 930 (8th Cir.2002) (upholding award of $8,542 in back pay, $50,000 for emotional distress, and $100,000 for punitive damages for a fired chief of the fire department, and $6,750 in back pay, $10,000 for emotional distress, and $30,000 in punitive damages for a fired part-time fireman); Campbell v. Ark. Dep't of Corr., 155 F.3d 950, 957 (8th Cir.1998) ($94,000 for back pay, mental and emotional distress, humiliation, and loss of reputation); Casey v. City of Cabool, 12 F.3d 799, 802 (8th Cir.1993) ($18,888 in damages); Trudeau v. Wyrick, 713 F.2d 1360, 1368 (8th Cir.1983) ($25,000 in actual damages was not excessive). Dossett argues that her case is comparable to Rustenhaven v. American Airlines, Inc., 320 F.3d 802 (8th Cir.2003), in which the jury awarded $4,242,000 to a plaintiff who survived a...