Filed: Feb. 28, 2006
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 05-12288 February 28, 2006 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 02-61791-CV-JAL EVERETT BROWN, Plaintiff-Appellant, versus BOSTON MARKET CORPORATION, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (February 28, 2006) Before TJOFLAT, MARCUS and PRYOR, Circuit Judges. PER CURIAM: Plaint
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 05-12288 February 28, 2006 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 02-61791-CV-JAL EVERETT BROWN, Plaintiff-Appellant, versus BOSTON MARKET CORPORATION, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (February 28, 2006) Before TJOFLAT, MARCUS and PRYOR, Circuit Judges. PER CURIAM: Plainti..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12288 February 28, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-61791-CV-JAL
EVERETT BROWN,
Plaintiff-Appellant,
versus
BOSTON MARKET CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 28, 2006)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Plaintiff Everett Brown appeals the district court’s order denying his verified
motion for new trial, which he filed after the jury returned a verdict in favor of his
former employer, Boston Market Corporation (“Boston Market”), on Brown’s claims
alleging violations of the Florida Civil Rights Act of 1992, Fla. Stat. § 760.91 et seq.,
based on race (black) and national origin (Jamaican) discrimination. On appeal,
Brown argues the district court erred by denying his motion for new trial based on (1)
Boston’s Market’s references, during opening statement and closing argument, to
Brown’s prior lawsuits and claims against other former employers; (2) Boston
Market’s cross-examination of Brown concerning a prior complaint against his
former employer, Premier Cruise Lines, and the submission of the prior complaint,
as Exhibit 31, to the jury despite that it was not offered into evidence; and (3) the
introduction into evidence of Brown’s prior claim for worker’s compensation benefits
against another former employer, Golden Corral. After careful review, we affirm.1
We review a district court’s decision on a motion for new trial for abuse of
discretion. See Lambert v. Fulton County, Ga., 253 F.3d 588, 595 (11th Cir. 2001).
1
In his notice of appeal, Brown enumerated only the order denying his verified motion for
new trial. Accordingly, we lack jurisdiction to consider his other arguments, which concern the
district court’s adoption of the magistrate judge’s recommendation on Boston Market’s motion for
sanctions. See Whetstone Candy Co., Inc. v. Kraft Foods, Inc., 351 F.3d 1067, 1079-80 (11th Cir.
2003) (“ Where an appellant notices the appeal of a specified judgment only . . . this court has no
jurisdiction to review other judgments or issues which are not expressly referred to and which are
not impliedly intended for appeal.” (internal citations and quotation marks omitted)); see also Fed.
R. App. P. 3(c)(B) (requiring that the notice of appeal “designate the judgment, order, or part thereof
being appealed”).
2
We accord significant weight to a district court’s exercise of its broad discretion in
determining whether to set aside a jury verdict and grant a post-verdict new trial:
[t]he standard for determining whether a jury verdict should be set aside
as a result of misconduct of counsel is whether the conduct was such as
to impair gravely the calm and dispassionate consideration of the case
by the jury. The trial judge is given broad discretion in controlling
counsel’s arguments. Absent an abuse of discretion, the decision of the
trial court, which has had the opportunity to hear the offensive remarks
within the context of the argument and to view their effect on the jury,
should not be disturbed.
BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1474 (11th Cir.
1992) (internal quotation marks and citations omitted). In addition to the high
standard of review otherwise applicable here, Brown’s failure to raise his present
arguments in a timely manner in the district court further limits the extent of our
review. See generally Access Now, Inc. v. Southwest Airlines Co.,
385 F.3d 1324,
1331-33 (11th Cir. 2004).
From our review of the record, Brown had numerous opportunities in the
district court to contemporaneously raise the objections and arguments he now
2
forwards here. He repeatedly failed to do so. Under similar procedural
2
For example, after the district court directed the parties to review all exhibits before they
were submitted to the jury, Brown raised no objections to Boston Market’s proposed exhibits. One
of the exhibits, Exhibit 31, was a copy of the complaint Brown filed against his prior employer,
Premier Cruise Lines. The prior complaint, although itself not introduced into evidence, was
referenced during Brown’s own testimony, as well as during his opening statement and closing
argument, all without objection. Moreover, when Boston Market cross-examined Brown on the prior
complaint to impeach his credibility, there was no objection. Finally, when Boston Market discussed
3
circumstances, we have held that we simply cannot, and will not, address such
improperly preserved arguments for this first time on appeal:
This Court has repeatedly held that an issue not raised in the
district court and raised for the first time in an appeal will not be
considered by this court. The reason for this prohibition is plain: as a
court of appeals, we review claims of judicial error in the trial courts. If
we were to regularly address questions -- particularly fact-bound issues
-- that districts court never had a chance to examine, we would not only
waste our resources, but also deviate from the essential nature, purpose,
and competence of an appellate court.
In Irving v. Mazda Motor Corp., 136 F.3d 764 (11th Cir. 1998),
we expressed our concern that “[t]oo often our colleagues on the district
courts complain that the appellate cases about which they read were not
the cases argued before them. We cannot allow Plaintiff to argue a
different case from the case she presented to the district court.” Id. at
769. We share that concern. Plainly, as an appellate court with no fact
finding mechanism, and, indeed, without any factual averments made in
the trial court, we are naturally hesitant to consider this claim. We also
observe that the plaintiffs had every opportunity to raise the new theory
in district court, whether in their initial complaint or in an effort to
amend their complaint.
Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(citations, internal quotation marks, and footnote omitted).3
the prior complaint during its closing argument, Brown did not object. It was only after the case was
submitted to the jury that Brown objected to the inclusion of Exhibit 31 in the jury’s materials (and
simultaneously moved for a new trial). The district court highlighted Brown’s failure to raise this
issue in a timely manner, despite that he had the opportunity to do so. The court, nevertheless,
issued a curative instruction, directing the jury to remove Exhibit 31 from the package of materials
and not to consider it in the deliberations.
3
None of the “exceptional conditions” that constitute exceptions to this rule apply here. See
Access Now, 385 F.3d at 1332-33 (discussing five “exceptional conditions” in which the Court will
4
On this record, we will not address the litany of arguments Brown asserts, for
the first time here, relating to Exhibit 31 and Boston Market’s arguments concerning
his prior lawsuit against Premier Cruise Lines and prior worker’s compensation claim
against Golden Corral.4 Accordingly, we affirm the final judgment in favor of Boston
Market.
AFFIRMED.
consider issues raised for the first time on appeal).
4
We observe that the district court found that Brown suffered no prejudice from the erroneous
submission of Exhibit 31 to the jury. In light of Brown’s testimony, his own counsel’s argument
referencing the prior lawsuit, his failure to object to Boston Market’s cross-examination of him on
the subject, and Boston Market’s unobjected-to opening statement and closing argument referencing
the prior lawsuit, even if we reached the merits of Brown’s claim that a new trial was warranted, we
would be hard-pressed to find an abuse of discretion on the district court’s part in denying his motion
for new trial.
5
