ORDER
JAMES MOODY JR., District Judge
THIS CAUSE comes before the Court upon Specially Appearing Defendants Clark A. Marcus, Giuseppe Crisafi, and Guy Norberg's Motion to Dismiss for Plaintiffs' Failure to Serve Process and Incorporated Memorandum of Law (Dkt. 102), Plaintiffs' Opposition to Same (Dkt. 110), and Defendant Guy Norberg's Motion to Quash Service of Process (Dkt. 116). The Court, having reviewed the motions, response, and being otherwise advised in the premises, concludes that the motion to dismiss for failure to serve process and the motion to quash service of process should be denied.
This case has been nothing short of litigious. The parties have filed numerous motions which have caused delays in the proceeding of this case on the merits. Now, the parties are again bickering about whether Defendants Clark A. Marcus ("Marcus"), Giuseppe Crisafi ("Crisafi"), and Guy Norberg ("Norberg") (collectively, "Defendants"), were ever properly served in compliance with Rule 4 of the Federal Rules of Civil Procedure.
Defendants argue that they were never served with the complaint or summons, which were filed on June 8, 2009, more than one year ago. Plaintiffs counter that they were under the impression that Angelina M. Whittington ("Whittington"), counsel for Defendants The Amacore Group, Inc., Jay Shafer, and Jerry Katzman (collectively, the "Served Defendants"), voluntarily agreed to represent Marcus, Crisafi, and Norberg.
Subsequent to the filing of the motion to dismiss for failure to effect service, Norberg was served on July 27, 2010, which is the subject of his motion to quash.
Rather than discuss the correspondence between counsel for Plaintiffs and Whittington and make any findings as to the representations contained therein, the Court concludes that there will be no prejudice to the parties if the time is extended to allow Plaintiffs to attempt service on Defendants. Although the complaint was filed more than one year ago, the motion practice between the parties and their numerous disagreements have delayed this case to the point that the Served Defendants' answer was just filed on August 18, 2010. Thus, this case is still in its infancy.
The Court now turns to a few arguments made by the parties. As to Plaintiffs' argument that it should be able to serve Marcus by publication due to their belief that he is residing in Italy, Florida law does not permit service by publication for the claims asserted against Marcus. See Zieman v. Cosio, 578 So. 2d 332, 332-33 (Fla. 3d DCA 1991) (noting that Florida's publication statute does not cover an action for money damages); New England Rare Coin Galleries, Inc. v. Robertson, 506 So. 2d 1161, 1162 (Fla. 3d DCA 1987) (noting that Florida's publication statute does not cover claims for breach of contract, fraud, and negligent misrepresentation).
The Court notes that it would behoove Whittington, counsel for the Served Defendants, to accept service on behalf of Defendants, as any delay in service will ultimately delay this case.
Lastly, Norberg argues in his motion to quash that the recent service attempted on him on July 27, 2010, should be quashed, because the service was ineffective. Specifically, Norberg points out that the summons was incorrectly issued from the District of New Jersey and improperly attached the New Jersey complaint. Although the Court agrees that this is technically incorrect, because the summons and complaint should have been issued by the Middle District of Florida, Norberg has not shown how he is prejudiced by this noncompliance. And dismissal based on technical errors in the summons and/or complaint is generally not warranted unless the moving party shows some form of prejudice. Sanderford v. Prudential Ins. Co. of Am., 902 F.2d 897, 900-01 (11th Cir. 1990).
This case originated in New Jersey, so, presumably, Plaintiffs incorrectly served the original summons and complaint filed before that court.
In Sanderford, the Eleventh Circuit affirmed the judgment of the district court finding that the court had personal jurisdiction over the defendant although the summons served had a technical error. Id. at 901. The summons in that case did not contain the return date for the responsive pleading. Id. at 900. However, the defendant was aware of the claim against him and received notice of a possible default judgment. Id. at 901. The Eleventh Circuit held that the defendant in that case did not meet its burden of proving prejudice based on the defect in the process. Id.; see also Brown v. Hillsborough Area Regional Transit, 2010 WL 455310, at *3 (M.D. Fla. Feb. 3, 2010).
The correspondence between the parties indicates that Norberg knew by December 2009, at the latest, that this case was pending in the Middle District of Florida and that Plaintiffs requested Whittington to accept service on his behalf. Thus, any technical errors in the summons and/or complaint did not prejudice him. Moreover, as set forth herein, the delay of more than one year since the filing of the complaint does not prejudice Norberg because the case is still in its infancy.
The central purpose of service of process is "to supply notice of the pendency of a legal action, in a manner and at a time that affords the defendant a fair opportunity to answer the complaint and present defenses and objections." Henderson v. United States, 517 U.S. 654, 672, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996). Given the history of this case, this central purpose has been met despite the deficiencies in the summons and complaint. Accordingly, Norberg's motion to quash will be denied.
It is therefore ORDERED AND ADJUDGED that:
1. Specially Appearing Defendants Clark A. Marcus, Giuseppe Crisafi, and Guy Norberg's Motion to Dismiss for Plaintiffs' Failure to Serve Process and Incorporated Memorandum of Law (Dkt. 102) is hereby DENIED.
2. Plaintiffs are granted sixty (60) days from the date of this Order to attempt service on Marcus and Crisafi, assuming counsel for the Served Defendants does not agree to accept service on their behalf.
3. Defendant Guy Norberg's Motion to Quash Service of Process (Dkt. 116) is hereby DENIED. Norberg has twenty (20) days from the date of this Order to file a response to the complaint.
DONE and
ORDERED in Tampa, Florida.
k and intimidate her.
For these reasons the district did not err by denying Midwest's post trial motion for judgment as a matter of law.
III.
Midwest contends that the $100,000 compensatory damage award is excessive and against the weight of the evidence. The district court rejected that argument when it denied Midwest's motion for a new trial or for remittitur. Remittitur is appropriate "only when the verdict is so grossly excessive as to shock the conscience of the court." Eich v. Bd. of Regents for Cent. Mo. State Univ., 350 F.3d 752, 763 (8th Cir. 2003) (citation omitted). We review for a manifest abuse of discretion, Taylor v. Otter Tail Corp., 484 F.3d 1016, 1019 (8th Cir. 2007), and "will reverse a denial of remittitur only when in rare circumstances we are pressed to conclude that the verdict represents a monstrous or shocking injustice." Benny M. Estes Assocs., Inc. v. Time Ins. Co., 980 F.2d 1228, 1235 (8th Cir. 1992) (citation omitted).
The damage award which the jury found supported by the evidence is not shocking, monstrous, or plainly unjust. Cf. Eich, 350 F.3d at 754 (reinstating award of $200,000 in noneconomic damages for hostile work environment claim). Sheriff testified that Meyer's conduct and Midwest's response to it caused her significant emotional trauma. She received counseling and treatment for increased anxiety, stress, depression, shortness of breath, and migraine headaches. She described how the migraine headaches caused her severe stomach aches and vomiting, inhibiting her work performance and forcing her to miss work. Both she and her husband testified about the deleterious effects of the harassment on their family life. "This court has consistently held that `awards for pain and suffering are highly subjective and should be committed to the sound discretion of the jury, especially when the jury is being asked to determine injuries not easily calculated in economic terms.'" Id. at 763 (citations omitted).
Midwest objects that Sheriff failed to prove that she had obtained mental health counseling or that she was forced to increase her antianxiety medication. Sheriff testified, however, that the pastor with whom she underwent counseling was also a licensed psychologist and that a Midwest nurse temporarily increased her antianxiety medication. Midwest's objection that Sheriffs emotional distress was not supported by expert testimony is unavailing, however, for `"[a] plaintiffs own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiffs burden [to prove emotional damages].'" Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997) (citation omitted).
The dissent asserts that Sheriff should be limited to $50,000 in noneconomic damages under 42 U.S.C. § 1981a(b)(3). Midwest has not pursued this argument either in the district court or on appeal. Section 1981a(b)(3) permits an award of noneconomic damages for intentional discrimination in employment but sets limits on their amount corresponding to the size of a defendant business. Fifty thousand dollars is the maximum possible award of noneconomic damages attainable from businesses with 14 to 100 employees, § 1981a(b)(3)(A); $100,000 is the limit for companies with 101 to 200 employees, (b)(3)(B); $200,000 is the maximum where there are 201 to 500 employees, (b)(3)(C); and $300,000 is the limit for companies with more than 500 employees, (b)(3)(D).
In her complaint in the district court Sheriff alleged that Midwest had "fifteen or more employees." (Emphasis added). In its answer to the complaint Midwest admitted that allegation, and the pretrial order includes that statement as an uncontroverted fact. Sheriffs prayer for relief included "compensatory damages for . . . mental pain and suffering." Midwest was thus aware before trial that Sheriff had the recovery of noneconomic damages in mind, in the amount of $50,000 or more.
In its post trial motions in the district court and in its appellate arguments Mid-west attacked the damage award on the ground that Sheriffs emotional distress evidence was insufficient to support the jury award. It has not relied on § 1981a(b)(3) or sought to limit Sheriffs noneconomic damages under it, nor has it submitted any evidence that it has fewer than 101 employees.
At oral argument on appeal counsel for Midwest was asked, "how 42 U.S.C. § 1981a [(b)](3)(A) got lost in the shuffle?" Counsel for Midwest responded that it was "a statute that we don't claim applies here." Midwest's basic damages position has always been that Sheriff did not provide sufficient evidence to justify her award for emotional distress damages.
For these reasons we conclude that the district court did not abuse its discretion by denying Midwest's motion for new trial or remittitur.
IV
The jury reasonably found from the evidence produced that Sheriff was subjected to a sexually hostile work environment that affected a term, condition, or privilege of her employment and for which Midwest failed to take prompt and effective remedial action. The district court also did not abuse its discretion in concluding that the jury's damage award was not excessive or against the weight of the evidence.
Accordingly, the judgment of the district court is affirmed.
BEAM, Circuit Judge, concurring and dissenting.
I concur in the court's opinion except for its conclusion that the damages limitation found in 42 U.S.C. § 1981a(b)(3)(A) should be disregarded in this action. At the outset, I note that the two cases cited by the court, American General Finance Corp. v. Parkway Bank Trust Co., 520 F.2d 607, 608 (8th Cir. 1975) and Cole v. International Union, United Automobile Aerospace Agricultural Implement Workers, 533 F.3d 932, 936 (8th Cir. 2008), are almost wholly inapposite to a fair determination of this phase of the dispute
It was not until 1991 that Congress made damages available under Title VII and even then, Congress carefully limited the amount recoverable in an individual case, calibrating the maximum recovery to the size of the employer. Gebser v. Logo Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). For purposes of this case, this calibration appears in 42 U.S.C. § 1981a(b)(3)(A) and (B) which state:
(3) Limitations
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party —
(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000;
and in § 1981a(c)(2) which states
(2) the court shall not inform the jury of the limitations described in subsection (b)(3) of this section.
Because of the limitations in subsection (b)(3) and the evidentiary restriction in subsection (c)(2), the ultimate quantity determination of compensatory damages, the only damages in play in this case, is a matter for the court, after verdict, rather than a matter for the jury. See MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 927 (8th Cir. 2004); Mendez v. Perla Dental, No. 04 C 4159, 2008 WL 821882, at *3 (N.D.IU. Mar.26, 2008). As an element of the cause of action authorized by Title VII, Sheriff had the burden of proof on all issues relating to her damages. MacGregor, 373 F.3d at 934. And, no plaintiff claiming damages under Title VII can complain of unfair surprise, prejudice or lack of opportunity to respond when confronted with these damages limitations because they are part of the same statutory scheme a plaintiff uses to bring his or her claim. Oliver v. Cole Gift Ctrs., Inc., 85 F.Supp.2d 109, 112 (D.Conn. 2000).
While most courts decline to strike damage prayers that exceed statutory limitations, Beam v. Concord Hospitality, Inc., No. 93-4188, 1996 WL 455020, at *6 (D.Kan. July 8, 1996), there is no statutory or precedential reason that the burden of proof of the employee-numerosity requirements of § 1981a do not remain with the plaintiff at all times. Oliver, 85 F.Supp.2d at 111 (holding that plaintiff cites no case law holding that statutory limitations must be pled as an affirmative defense).
The closest we come to a procedure for proof of the employee numbers variously specified in Title VII is found in Arbaugh v. Y H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). In Title VII, Congress limited the definition of "employer" to include only those having fifteen or more employees. 42 U.S.C. § 2000e; Arbaugh, 546 U.S. at 503, 126 S.Ct. 1235. Y H argued that proof of a defendant's "employer" status was jurisdictional and the issue could be raised at any time, even after trial. In answering, in the negative, the question of whether this requirement was a matter of subject matter jurisdiction, or not, the Court stated "[w]e reject that categorization and hold that the numerical threshold does not circumscribe federal-court subject-matter jurisdiction." Arbaugh, 546 U.S. at 504, 126 S.Ct. 1235. Instead, the Court stated "the employee-numerosity requirement relates to the substantive adequacy of Arbaugh's Title VII claim" and, thus, could not be raised defensively after the close of trial on the merits. Id. The Supreme Court did not, however, relieve a plaintiff of the responsibility of establishing her Title VII claims and damages, including those associated with employee numerosity. The most that can be gleaned from Arbaugh on the question of employee numbers is that any proof that is the burden of the defendant must relate to "employer" status and be raised by a defendant in a pleading, in a motion for judgment or otherwise asserted at the trial on the merits. Id. at 507, 126 S.Ct. 1235.
Since the substantive adequacy of Sheriffs claim for damages in this litigation is governed by subsections 1981a(b)(3)(A) and (B), evidence on numerosity boundaries remain her burden. As earlier noted, the court, post verdict, enters the final judgment on damages upon consideration of the § 1981a limitations. Accordingly, if any information from the defendant is required, which is doubtful, direct or inferential notice of employee numerosity presented to the trial judge prior to completion of the trial on the merits is sufficient. Such notice was given in this case by Midwest through Midwest's July 6, 2009, Renewed Motion for Judgment as A Matter of Law (JAML) in which the clinic requested a judgment limited to $50,000 in damages. See Docket Entry 75. As required by § 1981a(c)(2), the case was submitted to the jury without evidence of employee numbers except, of course, for Sheriffs allegation that Midwest employed "15 or more" individuals, the number required to prove that Midwest was an "employer" as defined in Title VII. Midwest admitted this allegation in its answer. Thus, at that point, the only proof of Midwest's employment numbers was "fifteen," and it originated with Sheriff.
The jury returned its verdict at 4:55 p.m. on June 24, 2009. Judgment on the verdict was entered by the court on June 25, 2009. Midwest's motions for JAML, New Trial and to Alter or Amend Judgment were timely filed on July 6, 2009, stating, in part, that "damages, if any is (sic) proper at all, should not exceed $50,000, the sum set forth in Plaintiffs' (sic) damages evidence." This was sufficient notice to the trial judge that Midwest objected to the $100,000 verdict the court had entered on June 25 in violation of § 1981a(b)(3). Midwest's post verdict motions were denied on September 16, 2009, at which time the court entered judgment for Sheriffs attorney fees. Accordingly, trial on the merits of this case concluded on that date without any further action by the court on the matter of the amount of damages. At that point, the final decision of the district court became appealable under 28 U.S.C. § 1291.
The court apparently suggests that Midwest forfeited or waived the damages limitations issue by attacking the damages award "on the ground that Sheriff's emotional distress evidence was insufficient to support the jury award. It has not relied on § 1981a(b)(3) or sought to limit Sheriff's noneconomic damages under it, nor has [Midwest] submitted any evidence that it has fewer than 101 employees." Ante at 932. First, Midwest did not have the burden of presenting such evidence. Second, the court's statements are incorrect. Midwest's opening brief on appeal states,
Midwest suggests that the damages, if any are proper at all, should not exceed $50,000, the sum set forth in Sheriff's damages evidence reduced by savings admitted during her testimony at trial. (T 130:11-138:19; JA 308-314.);
see 42 USC § 1981a(b)(3)(D) (establishing a cap of $50,000 on emotional distress damages for respondents, such as Midwest, with fewer than 101 employees). This will reduce the judgment to a reasonable sum reflective of the evidence. This relief is authorized by
F R Civ. P 59e.
Appellants' Br. at 36. This, along with the various post verdict motions, is more than enough notice to the district court and this panel that neither forfeiture nor waiver, as defined by this court, United States v. McCoy, 496 F.3d 853, 856 (8th Cir. 2007), are applicable, or that an element of the statutory cause of action created by Congress may be ignored at trial on the merits or that a misstatement at oral argument of the issues framed on appeal should cost the defendant $50,000.
I concede that Midwest did not directly allude in its motion for JAML to the 42 U.S.C. § 1981a(b)(3) limitations. But, the district court was charged with applying applicable law to the case and specific reference to the statute was not required at that point. Huggins v. Fed.Ex Ground Package Sys., Inc., 592 F.3d 853, 863 (8th Cir. 2010); Hill v. N. Tex. State Hosp., No. 7:09-CV-158, 2010 WL 330209, at *2 (N.D.Tex. Jan. 26, 2010).
Even assuming that the court majority is correct that nothing in the record exists, directly or by reasonable inference, with regard to § 1981a(b)(3) employee numbers, substantial unfairness arises when Sheriff is allowed to avoid adducing easily discoverable evidence in support of the substantial adequacy of a statutory element of her damages claim but is permitted to retain an unsupported judgment because Midwest purportedly waived application of the limitation provisions by failing to rely on them below. This is especially true when a search of the record fails to disclose even a hint that Midwest has or ever had the 101 employees necessary to support the $100,000 award.
It seems totally incongruous that Sheriffs silence on employee numbers should carry the day in her quest for an unsupported judgment and Midwest's purported silence on evidence it had no duty to adduce should be viewed as a waiver of a statutorily imposed limitation. This incongruity is especially intense because a trial judge in this circuit is permitted to take judicial notice of employee numbers, post verdict, in a Title VII case, MacGregor, 373 F.3d at 933, and because there is no showing that Sheriff ever requested the trial judge to take such notice. At the very least, this case should be remanded to permit Midwest to offer evidence of employee numerosity. Affirming the $100,000 judgment is error. I dissent.