JAMES LAWRENCE KING, District Judge.
THIS CAUSE comes before the Court upon Defendants' Motion for Entry of Final Judgment (DE # 62), filed June 30, 2009. Plaintiff filed a Response in Opposition to Defendants' Motion for Entry of Judgment and an Alternative Motion for New Trial (DE # 69) on June 14, 2010.
Defendants Replied (DE # 71) to their Motion for Final Judgment on June 21, 2010. Plaintiff's Motion for a New Trial was re-filed as an Alternative Motion for New Trial (DE # 73). Defendants filed a Response in Opposition to Plaintiff's Motion for New Trial (DE # 77) on July 1, 2010 and Plaintiff filed a Reply (DE # 79) on July 12, 2010. On July 19, 2010, Defendants filed a Motion for Leave to File a Sur-Reply (DE # 80), Plaintiff filed a Response in Opposition (DE # 81) on July 22, 2010 and on July 26, 2010 Defendants Replied (DE # 82).
This matter arises under the Fair Labor Standards Act ("FLSA"). Plaintiff, employed as a secretary/receptionist at Defendant Hi-Tech Autobody, Inc., filed a Complaint (DE # 1) on May 29, 2009 alleging that she regularly worked in excess of forty hours per week, but was not paid for those hours. On May 13, 2010, the Court conducted a two-day jury trial on Plaintiff's claim for overtime wages. Upon the conclusion of the trial and deliberation of the jury, the jury returned its verdict. The Jury answered the verdict form as follows:
1. Do you find from a preponderance of the evidence that the Plaintiff worked more than Forty (40) hours in any single work week during the limitations period for HI TECH AUTOBODY, INC.?
YES
If you answered "No" to this question, then your verdict is for the Defendants and you should sign and date this verdict form and return it to the bailiff.
If you answered "Yes" to this question, then you must next proceed to question # 2.
2. Do you find from a preponderance of the evidence that the Plaintiff is owed overtime wages for any work week in which she worked more than Forty (40) hours in a week during the limitations period while employed by HI TECH AUTOBODY INC.?
NO
If you answered "No" to this question, your verdict is for the Defendants and you should sign and date this verdict form and return it to the bailiff.
If you answered "Yes" to this question, you must proceed to question # 3.
(Jury Verdict Form, DE # 61.)
In this Motion, Defendants contend that since the jury answered "no" to the second question and did not find that the Plaintiff was owed any overtime wages, the Court should enter final judgment on the Defendants' behalf. Plaintiff responds that these verdicts are inconsistent and asks the Court to either enter judgment for Plaintiff or grant a new trial on the issue of damages alone.
A verdict contains an inconsistency if the verdict does not represent a logical decision on the issues as submitted to the jury. Wilbur v. Youth Services, Int'l, Inc., 393 F.3d 1192, 1200 (11th Cir. 2004) (citing Aquachem Co. v. Olin Corp., 699 F.2d 516, 521 (11th Cir. 1983)). To determine if a verdict is inconsistent, the court considers the case-pleadings, evidence, argument, jury instructions, and the jury's answers themselves. Id. (citing Royal Cup, Inc. v. Jenkins Coffee Serv., Inc., 898 F.2d 1514, 1521 (11th Cir. 1190). The court must "make all reasonable efforts to reconcile the [inconsistency]." Id. (citing Boczar v. Manatee Hosps. Health Sys., Inc., 993 F.2d 1514, 1516 n5 (11th Cir. 1993) (quoting Burger King v. Mason, 710 F.2d 1480, 1489 (11th Cir. 1983)). In other words, "if there is a view of the case which makes the jury's answers consistent, the court must adopt that view and enter judgment accordingly." Id. (quoting Griffin v. Matherne, 471 F.2d 911, 915 (5th Cir. 1973)). The court, however, cannot "strain to reconcile an inconsistency when it is not reasonable to do so." Id. (citing Burger King, 710 F.2d at 1489).
After a careful review of the pleadings, the evidence, the arguments made at trial, the jury instructions, and the jury's answers on the special verdict, the Court finds that the jury verdict is consistent. The jury found that Plaintiff worked overtime, but based on the evidence presented at trial, Plaintiff failed to carry her burden of proving any damages. The testimony of Mrs. Ronquillo and the Plaintiff, Mrs. Beltran Moya, was not in conflict in that although Plaintiff had worked some days overtime, she had been given time to go to the doctor for medical appointments during her pregnancy, time to go home to care for her child during work hours and paid in excess of her normal due amounts. The two women testified to a friendly cooperative relationship where the two cooperated completely to help each other "get the work done and help each other during their mutual pregnancies." Both were honest, believable, likeable witnesses. The verdict reflects this belief by finding Plaintiff did work overtime but had been compensated with kindness and fairly treated by her employer. The jury obviously believed the testimony of both parties and came to a good, Solomonesque decision. The jury found that Plaintiff had failed to satisfy her burden of proof on damages and was not owed any overtime.
This finding is not inconsistent; rather, it is a verdict for the Defendants. Answering "yes" to Question # 1 does not indicate a verdict for the Plaintiff, it simply refers the jury to Question #2. However, answering "no" to Question # 2 does indicate a verdict for the Defendants. The jury form explicitly states that "if you answered `No' to this question, your verdict is for the Defendants." The jury's answers therefore are not inconsistent.
Finally, the jury questions, drafted by Plaintiff, explicitly allowed for this outcome. After the jury made a determination that Plaintiff worked more than 40 hours in a single work week, the jury was not asked to determine how much was owed to Plaintiff for this work; rather, the jury was then asked whether Plaintiff was entitled to damages at all. Plaintiff therefore understood that a jury could reach this verdict; answer "yes" to Question # 1 and "no" to Question # 2. It belies logic for Plaintiff to include a question and then assert that the only acceptable answer to that question is "yes." Thus, the Court finds the jury's verdict logical and not inconsistent.
Accordingly, the Court having carefully considered the parties' motions and legal authorities and being otherwise fully advised, it is ORDERED, ADJUDGED, and DECREED as follows:
1. Defendants' Motion for Entry of Final Judgment (DE # 62) be, and the same is hereby, GRANTED by separate Order.
2. Plaintiff's Alternative Motion for New Trial (DE # 73) be, and the same is hereby, DENIED.
Rigoberto Cordero, Appellant, v. The State of Florida, Appellee.
No. 3D10-1523.
District Court of Appeal of Florida, Third District.
Opinion filed July 28, 2010.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge. Lower Tribunal No. 94-30156.
Rigoberto Cordero, in proper person.
Bill McCollum, Attorney General, for appellee.
Before WELLS, SHEPHERD, and SUAREZ, JJ.
PER CURIAM.
Affirmed.
Not final until disposition of timely filed motion for rehearing.
p193313 F.3d 184, 193 (4th Cir. 2002). "[T]he decision whether to grant leave rests within the sound discretion of the district court, the federal rules strongly favor granting leave to amend[,]" however. Medigen of Kentucky, Inc. v. Public Service Com'n of West Virginia, 985 F.2d 164, 167-68 (4th Cir. 1993) (internal citation omitted).
Felman argues the motion to amend should be denied as futile. Specifically, Felman claims amendment would be fruitless because: (1) Defendants cannot establish justifiable reliance or actual damages, and (2) the proposed counterclaims replicate an existing defense.
The Court will not deny amendment on these grounds. Essentially, Felman's futility argument asks the Court to delve into the merits of Defendants' fraud-based counterclaims. Felman asks the Court to weigh the evidence. It requests the Court consider metadata and the English proficiency of Yuriy Petrenko and Dolzhkov Denys. It asks the Court to conclude that neither the $5,000,000 advanced payment, nor the costs, fees and inconvenience associated with this litigation constitute actual damages. Further, the company asks the Court to find that Defendants' alleged reliance on Felman's purported misrepresentations is unjustifiable. These are questions for a jury, not for the Court.
Felman is correct that futility can be an appropriate basis upon which to deny a motion to amend. See Franks, 313 F.3d at 193 (A motion to amend "should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.") (emphasis in original). "Leave to amend, however, should only be denied on the ground of futility when the proposed amendment in clearly insufficient or frivolous on its face." Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986). Defendants' fraud claims are not frivolous on their face. To the contrary, Felman's detailed argument of the facts and evidence demonstrates a lack of frivolity or clear insufficience and the application of these purported facts to the law of this case is a job for the jury. See West Virginia Hous. Dev. Fund, 200 F.R.D. at 567 n. 3. Accordingly, the Court will not deny Defendants' motion on the grounds of futility.
The Court also rejects Felman's futility argument on the grounds of duplication with Defendants' Sixteenth Affirmative Defense. The affirmative defense alleges fraud in the application for insurance; whereas, the counterclaims allege fraud during the claims process. The Court therefore finds the counterclaims sufficiently distinct to allow amendment.
ConclusionDefendants motion is GRANTED and the Clerk is DIRECTED to FILE the Amended Answer and Counterclaim (Doc. # 265-1) and attached exhibits (Docs. #265-2 through #265-25), with an effective filing date of July 28, 2010.
The Court DIRECTS the Clerk to send a copy of this Opinion and Order to counsel of record and any unrepresented parties.
h The reporting of trace data by the ATF has been partially restricted by the Tiahrt Amendments to federal appropriations bills, Pub.L. No. 111-8, 123 Stat. 524, 575 (2009) (codified as Note to 18 U.S.C. § 923). Currently, the restriction prevents the ATF from publicly disclosing trace data, and precludes the data from being disclosed or used in any civil action. Id. It does not restrict the reporting of this data to law enforcement agencies. Id.
See Following the Gun, supra note 17, at 41-44.
Section 922(k) must also be narrowly tailored to serve that interest. Narrow tailoring requires that the regulation actually advance the compelling interest it is designed to serve. See Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 226, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). The law must be the least-restrictive method of serving that interest, and the burdening of a significant amount of protected conduct not implicating the interest is evidence the regulation is insufficiently tailored. See Ashcroft v. ACLU, 542 U.S. 656, 666, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). Section 922(k) restricts possession only of weapons which have been made less susceptible to tracing. Because it does not limit the possession of any otherwise lawful firearm, it does not burden more possession than necessary to protect the interest in serial number tracing.
Marzzarella argues § 922(k) is overinclusive and, therefore, fails narrow tailoring. Because in certain cases — such as Marzzarella's — it is possible through laboratory procedures to discern the original serial number of a firearm despite efforts to remove, obliterate, or alter it, he contends § 922(k) goes further than is required. Presumably, Marzzarella believes the overinclusiveness could be cured by applying § 922(k) only where, upon recovery of the firearm and subsequent laboratory testing, the serial number still cannot be read. But we do not think the fact that, in some cases, ex post circumstances can allow for the deciphering of a serial number renders § 922(k) insufficiently tailored. The statute protects the compelling interest of tracing firearms by discouraging the possession and use of firearms that are harder or impossible to trace. It does this by criminalizing the possession of firearms which have been altered to make them harder or impossible to trace. That these actions sometimes fail does not make the statute any less properly designed to remedy the problem of untraceable firearms. Accordingly, we find § 922(k) is narrowly tailored.
We have our doubts about the administrability of such a standard. For starters, how much effort by law enforcement agencies would be required before courts could determine the serial number was unreadable? Moreover, the standard would provide uneven deterrence because persons would be unaware at the time of commission whether their conduct would lead to criminal liability or not. Section 922(k), read in this manner, would likely be difficult to apply.
III.
Second Amendment doctrine remains in its nascency, and lower courts must proceed deliberately when addressing regulations unmentioned by Heller. Accordingly, we hesitate to say Marzzarella's possession of an unmarked firearm in his home is unprotected conduct. But because § 922(k) would pass muster under either intermediate scrutiny or strict scrutiny, Marzzarella's conviction must stand.
For the foregoing reasons, we will affirm the District Court's denial of Marzzarella's motion to dismiss the indictment and affirm his judgment of conviction and sentence.
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