Hipp v. Liberty Nat. Life Ins. Co.

Decision Date15 August 1999
Docket NumberNo. 95-1332-CIV-T-17A.,95-1332-CIV-T-17A.
Citation65 F.Supp.2d 1314
PartiesDavid HIPP, Brad Stein, Mike Stell, and All Others Similarly Situated, Plaintiffs, v. LIBERTY NATIONAL LIFE INSURANCE COMPANY, Defendant.
CourtU.S. District Court — Middle District of Florida

Ross Mathew Goodman, Robert Douglas Permenter, Troy Alan Rafferty, Mary E. Pilcher, Levin, Middlebrooks, Thomas, Mitchell, Green, Eschner, Proctor & Papantonio, Pensacola, FL, for David Hipp, Brad Stein, plaintiffs.

Ross Mathew Goodman, Levin, Middlebrooks, Thomas, Mitchell, Green, Eschner, Proctor & Papantonio, Pensacola, FL, for Mike Stell.

Ross Mathew Goodman, Troy Alan Rafferty, Levin, Middlebrooks, Thomas, Mitchell, Green, Eschner, Proctor & Papantonio, Pensacola, FL, for James W. Lee, Peter Swanson,

Ross Mathew Goodman, Troy Alan Rafferty, Mary E. Pilcher, Levin, Middlebrooks, Thomas, Mitchell, Green, Eschner, Proctor & Papantonio, Pensacola, FL, for Kenneth Blake Tuggle, Sr., Dwayne E. Sentell, Harold Dee Carter, James Donald Ganus, Carl Anthony Agee.

Peter W. Zinober, D. Michael Pointer, II, Zinober & McCrea, P.A., Tampa, FL, Martha C. Perrin, Gregory J. Hare, Ogletree, Deakins, Nash, Smoak & Stewart, Atlanta, GA, William J. Baxley, Joel E. Dillard, Baxley, Dillard, Dauphin & McKnight, P.A., Birmingham, FL, Margaret H. Campbell, Atlanta, GA, for Liberty National Life Insurance Co., defendant.

ORDER

KOVACHEVICH, Chief Judge.

This cause comes before the Court on the following:

1. Plaintiffs' motion for attorneys' fees and supporting memorandum (Docket Nos. 391-392), filed March 29, 1999; and Defendant's response (Docket No. 401), filed April 12, 1999;

2. Defendant's motion for remittitur or for a new trial on the issue of damages and supporting memorandum (Docket No. 392-393), filed March 31, 1999; and Plaintiffs' response (Docket No. 406), filed May 4, 1999; and

3. Defendant's motion for judgment as a matter of law or for a new trial and supporting memorandum (Docket No. 394-395), filed March 31, 1999; and Plaintiffs' response (Docket No. 407), filed May 4, 1999.

1. Motion for Costs and Attorneys' Fees (Docket No. 391)

Plaintiffs move for an award of their costs and attorneys' fees, pursuant to 29 U.S.C. Sections 216(b) and 626(b) and, with respect to the Florida Plaintiffs, Section 760.11(5), Florida Statutes. However, in the time since Plaintiff's motion for costs and attorneys' fees was filed, the Defendant has filed multiple post-trial motions, as well as a notice of appeal. Responding to the post-trial motions has obviously entailed the expenditure of a great deal of attorney time, and, most likely, the incurrence of further costs as well. Responding to the appeal will add further to this total. Moreover, the outcome of the appeal could affect whether some or all of the Plaintiffs are entitled to an award of costs and attorneys' fees. In the interests of judicial economy, the Court will therefore defer ruling on costs and attorneys' fees until all appeals have been resolved.

II. Motion for Judgment as a Matter of Law, or, Alternatively, for a New Trial on Liability (Docket No. 395)

The Defendant argues that it is entitled to judgment as a matter of law or a new trial on several grounds:

(1) judgment as a matter of law with respect to the claims of Plaintiffs Lee, Agee, Carter, and Tuggle on the grounds that a collective action was improper in this case, and that those Plaintiffs' claims arose outside of the appropriate temporal and subject matter scope for inclusion in this case; and, on that basis, a new trial with respect to the claims of Plaintiffs Hipp, Stein, and Stell, because the inclusion of evidence on the claims of the improperly included Plaintiffs prejudiced the Defendant with regard to the claims of the properly included Plaintiffs;

(2) judgment as a matter of law with regard to the Plaintiffs' pattern and practice claims, because the testimony presented was not sufficient to establish a pattern and practice of discrimination, and because the Plaintiffs did not provide statistical evidence in support of that claim;

(3) judgment as a matter of law on each of the Plaintiffs' claims, because, assuming that Plaintiffs did not establish that there was a pattern and practice of discrimination, each Plaintiff did not present sufficient evidence individually to support his claim;

(4) a new trial on each of the Plaintiffs' claims because the Court refused to give certain jury instructions;

(5) a new trial on each of the Plaintiffs' claims, because the jury heard evidence that was time-barred, evidence of discrimination against others, and evidence of stray remarks;

(6) judgment as a matter of law on the jury's liquidated damages, punitive damages, and pain and suffering verdicts, because those verdicts were not supported by substantial evidence;

(7) a new trial or remittitur on the award of backpay, because the reports prepared by Plaintiffs' expert witness were unreliable.

Most of these issues have already been addressed by the Court at least once, if not several times, making the Defendant's motion on those issues essentially motions to reconsider. A motion for reconsideration must demonstrate why the court should reconsider its prior decision and "set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294, 294 (M.D.Fla.1993). As such, a motion to reconsider should raise new issues, not merely readdress issues previously litigated. Courts have recognized three (3) grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981). This Court will not reconsider a previous ruling when the party's motion fails to raise new issues and, instead, only relitigates what has already been found lacking. See Government Personnel Serv., Inc. v. Government Personnel Mut. Life Ins. Co., 759 F.Supp. 792, 793 (M.D.Fla.1991), aff'd, 986 F.2d 506 (11th Cir.1993).

Here, the Defendant has presented neither new argument nor new authority on these issues, and has not persuaded the Court that either clear error or manifest injustice exists. The Court will discuss each of the arguments raised by the Defendant in its motion in order to ensure the clarity of the record. However, the Court will not retread ground it has already covered.

In considering a motion for judgment as a matter of law, a district court must consider the evidence "in the light most favorable to, and with all reasonable inferences drawn in favor of, the non-moving party." Montgomery v. Noga, 168 F.3d 1282, 1289 (11th Cir.1999) (quoting Walker v. NationsBank of Florida, N.A., 53 F.3d 1548, 1555 (11th Cir.1995)); see also, General American Life Ins. Co. v. AmSouth Bank, 100 F.3d 893, 899 (11th Cir.1996); Harris v. Chapman, 97 F.3d 499, 505 (11th Cir.1996). "A party is entitled to judgment as a matter of law only if the evidence and inferences derived from the evidence are so strong that reasonable persons in the exercise of impartial judgment could not arrive at a contrary verdict." General American, 100 F.3d at 899. In deciding such a motion, "the court cannot reweigh the evidence or assess credibility." Popham v. City of Kennesaw, 820 F.2d 1570, 1576 (11th Cir.1987); see also Norton v. Snapper Power Equipment, 806 F.2d 1545, 1548 (11th Cir.1987). "If reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions based on the evidence presented, the motion should be denied." Montgomery, 168 F.3d at 1289; see also, Harris, 97 F.3d at 505.

A motion for a new trial may only be granted "when the jury's verdict is against the great—not merely the greater —weight of the evidence." Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1514-15 (11th Cir.1993) (quoting Fondren v. Allstate Ins. Co., 790 F.2d 1533, 1534 (11th Cir.1986)); see also, Redd v. City of Phenix City, 934 F.2d 1211, 1214 (11th Cir.1991). "This standard is intended to preserve litigants' right to a jury trial and to ensure that judges will not substitute their own judgment for that of the jury with respect to disputed issues of fact." Haygood, 995 F.2d at 1515. "[T]he district judge should not substitute his own credibility choices and inferences for the reasonable credibility choices and inferences made by the jury." Redd, 934 F.2d at 1215 (quoting Rosenfield v. Wellington Leisure Products, Inc., 827 F.2d 1493, 1498 (11th Cir.1987)) (alteration in original). "When there is some support for a jury's verdict, it is irrelevant what ... the district judge would have concluded." Redd, 934 F.2d at 1215.

A. Collective Action

The Defendant argues that a collective action was improper in this case because the Plaintiffs were not "similarly situated." The Court addressed this issue prior to trial in response to the Defendant's motion to sever. (See Order of November 4, 1997, at 5-6.) In the Order of November 4, 1997, the Court discussed Supreme Court and Eleventh Circuit case-law holding that ADEA plaintiffs have a right to proceed collectively. (See id.) (discussing Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989); Grayson v. K Mart Corp., 79 F.3d 1086 (11th Cir.1996); Flavel v. Svedala Indus. Inc., 875 F.Supp. 550 (E.D.Wis.1994); and Glass v. IDS Financial Services Inc., 778 F.Supp. 1029 (D.Minn.1991)). The Court reiterated its holding that "where there is an ongoing continuous series of discriminatory acts, they may be challenged in their entirety as long as one of the discriminatory acts falls within the limitations period." (Order of November 4, 1997, at...

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