GARY FEINERMAN, District Judge.
Priscilla Rainey brought this diversity suit against Jayceon Terrell Taylor, alleging sexual battery. Doc. 1. After a one-week trial, the jury returned a verdict in Rainey's favor in the amount of $7,130,100.00, and judgment was entered. Docs. 139-140. Taylor moves under Civil Rule 59 for a new trial or a remittitur. Docs. 151, 158. The motion is denied.
The complaint, filed in early August 2015, alleged the following. Rainey was cast as one of several female contestants on a VH1 reality television show called She's Got Game, a production essentially patterned on The Bachelor, with Taylor, a rap artist who performs under the stage name "The Game," as the male lead. Doc. 1 at ¶¶ 6-7. In May 2015, while the show was filming in the Chicago area, Taylor took Rainey on an off-camera date to Adrianna's Sportsbar in Markham, Illinois. Id. at ¶¶ 8-9. Taylor sexually battered Rainey that night, including by reaching his hand inside her dress to rub her bare vagina and buttocks in front of a crowded room of onlookers. Id. at ¶ 9.
At status hearings in early October 2015 and early November 2015, Rainey's attorney reported on his unsuccessful efforts to serve Taylor. Docs. 10-11. In December 2015, Rainey moved to approve alternative service after five process servers in three States—one of whom tried forty-one times to personally serve Taylor at his home—could not effectuate service. Doc. 17 at ¶¶ 6, 14. The court granted the motion, ruling that if Taylor "does not answer or otherwise plead to the complaint within the required time frame, the court will enter a default under Civil Rule 55(a) and will proceed to a prove-up hearing under Civil Rule 55(b)." Doc. 19. Taylor did not answer or otherwise plead during the required time frame, and so the court entered a Rule 55(a) default on February 1, 2016, stating:
Doc. 24.
Taylor's counsel, Andrew Williams of Florida, appeared ten days later, Doc. 26, and shortly thereafter moved to quash service and set aside the default, Doc. 37. On February 24, 2016, the court denied the motion to quash, reasoning that the record "paint[s] a very clear and unmistakable picture of the plaintiff's dogged efforts at service and how she was foiled at effecting service"; but the court vacated the default and set trial for November 14, 2016. Doc. 44. After Taylor answered, the case was referred to the Magistrate Judge, Docs. 48-49, who set a settlement conference for June 16, Doc. 56 ("The parties and their counsel must personally appear for the settlement conference.").
On June 2, Taylor moved to reset the settlement conference. As one ground for the continuance, Taylor stated:
Doc. 60 at ¶¶ 4-5. The next day, the Magistrate Judge cancelled the settlement conference, but cautioned the parties "that their trial date on 11/14/2016 is a firm date that will not be extended." Doc. 62; see also Doc. 63 (Magistrate Judge advising the parties "that the Court previously granted the unopposed motion to reset the settlement conference only because the parties were in agreement that `a more meaningful and productive Settlement Conference will be possible' if they delay the conference until after certain depositions take place"). At the next status hearing before the District Judge, Doc. 64, the court expressed to Williams great skepticism regarding Taylor's motion:
On July 5, Taylor moved under 28 U.S.C. § 1404(a) to transfer the case to the Central District of California or the Southern District of Florida. Doc. 67. The court denied the motion for several reasons, including that a transfer would delay trial. Doc. 81. On September 22, Williams orally moved to continue the trial; the court denied the motion "without prejudice to the ... defendant making a more persuasive and compelling showing in writing." Doc. 82. More than three weeks later, on October 14, Taylor renewed his motion to continue the trial. Doc. 88. In denying that motion, Doc. 95, the court stated:
The jury trial began, as scheduled, on Monday, November 14. Doc. 130. Taylor was not present that day, but Williams informed the court that although Taylor would not be present for jury selection, he "will be here tomorrow." As Williams explained days later, Taylor did not believe it necessary to appear for the first day of trial because professional basketball star Derrick Rose, as a defendant in his own civil sexual assault case in the Central District of California, did not appear for the first day of his trial. The difference between Rose's and Taylor's circumstances—apart from the fact that Rose had a preplanned obligation the first day of trial, the preseason opener in Houston—is that Rose sought and obtained in advance the judge's permission for missing the first day of trial. See Transcript of Telephonic Status Conference at 20-23, Doe v. Rose, No. 2:15-cv-07503-MWF-JC (C.D. Cal. Oct. 3, 2016) (Dkt. 412) (noting that the conflict was "not a surprise" to the court or plaintiff's counsel and declining to "force [Rose] to miss the game"); Michael McCann, Legal Strategies for Derrick Rose, Accuser Ahead of Rape Civil Trial, Sports Illustrated (Oct. 4, 2016), https://www.si.com /nba/2016/10/04/derrick-rose-rape-trial-civil-lawsuit-knicks-adidas-analysis. By contrast to Rose, Taylor had no professional obligation the first day of trial and, making matters worse, simply took it upon himself to be absent.
When trial resumed on Tuesday, November 15, Williams notified the court that Taylor would not be present that day and made an oral motion for a continuance. Williams represented that Taylor had called an "emergency dental hotline" at approximately 6:00 p.m. on Sunday, November 13 and had undergone emergency "dental surgery" in Los Angeles on November 14. Williams invited the court to call the dental professional who performed Taylor's procedures. During that call, the professional (assuming that is who was on the line, as no one was under oath) stated that he performed "basically more or less a root canal procedure, two of them" on November 14, and that he typically follows up with patients "in a couple of weeks." He also stated that he "wouldn't have recommended" that Taylor fly on the day of his procedure because altitude change can cause pain. No affidavit or declaration from Taylor or the dental professional was presented.
To assist in evaluating the veracity of Taylor's story, Rainey's counsel presented the court with screenshots from Taylor's Snapchat account. The account has a post showing Taylor smoking (something) in a dark room with flashing pink lights at 2:44 a.m. Pacific time the morning of Monday, November 14.
The court denied Taylor's motion for a continuance and stated its reasons on the record. Doc. 132. Those reasons included:
The next day, Wednesday, November 16, Taylor's attorney presented the court with printed copies of airline and hotel reservations, and renewed the motion for a continuance. The court denied the motion on the record:
As to the flight and hotel reservations, which were shown to the court but which Williams did not make part of the record, the court stated:
Later that day, Williams raised the issue of Taylor's travel reservations again:
The trial progressed, and nothing further—no declaration or affidavit from Taylor or the dental professional, no further evidence of plane or hotel reservations—was presented on Wednesday or Thursday. After Rainey rested, Williams presented witnesses as part of Taylor's case; his witness, Chris Collins, testified remotely by videoconference from Los Angeles. At no point during the trial did Williams ask if Taylor could appear remotely by videoconference from Los Angeles, a locale where the necessary equipment was readily available.
The issue of Taylor's absence arose once more on Friday, November 18. After both sides rested, Williams showed the court a reservation for an additional two hotel rooms and airline reservations for Taylor's security personnel; again, Williams did not make those reservations part of the record. The court stated:
In light of Taylor's absence, the court gave the following jury instruction: "Defendant Jayceon Terrell Taylor was mentioned at trial but did not testify in person in court. You may, but are not required to, assume that Mr. Taylor's testimony would have been unfavorable to Mr. Taylor." Doc. 142 at 18.
On November 18, the jury returned a verdict for Rainey in the amount of $7,130,100— $1,130,100 in compensatory damages, and $6,000,000 in punitive damages. Doc. 139. Judgment was entered on November 21. Doc. 140. On December 14, Taylor filed a notice of appeal. Doc. 144. On December 16, Taylor filed a motion for an extension of time to file post-trial motions. Doc. 149. Later that day, Taylor filed a "Motion for Elimination and/or Reduction (Remittitur) of Damages and Motion for New Trial ... Pursuant to Rule 59." Doc. 151.
On December 20, the court denied Taylor's motion for an extension of time to file post-trial motions and denied Taylor's Rule 59 motion without prejudice for failure to comply with Local Rule 5.3(b). Doc. 153. Taylor then filed a supplemented Rule 59 motion, Doc. 158, and moved for reconsideration of the court's denial of his initial Rule 59 motion, Doc. 166. The court granted Taylor's motion for reconsideration; in doing so, the court reinstated Taylor's initial Rule 59 motion, Doc. 151, and explained that the second Rule 59 motion, Doc. 158, would be construed as amending the motion that Taylor timely filed on December 16, Doc. 170. Accordingly, Taylor's post-trial motion is now before the court.
Months after briefing concluded, Taylor submitted two supplemental filings without leave of court. Docs. 186-187. Those materials accordingly will not be considered. That said, the court notes that the first filing, a declaration from Taylor, purports to explain his absence and avers that he did not use his dental issue to avoid trial. Doc. 186. If Taylor (via Williams) had presented that declaration on the first day of trial, or even the second, the court would have considered whether it was truthful and whether it warranted a continuance. Given all the circumstances set forth above, the court likely would have found the declaration untruthful and proceeded with the trial. But even if the declaration had a grain of truth, it was far too little and far too late. The time to prepare and present the declaration was on the first day of trial, and certainly no later than the second, for if a continuance had been granted, the court could have saved the time and effort expended by the jurors, by Rainey and her counsel, by the court and its staff, and by the witnesses over the rest of the week. By waiting until months after the trial, with its highly unfavorable result, to present the declaration, Taylor forfeited whatever argument he could have made based on the declaration.
Rainey argues that Taylor divested this court of jurisdiction when he filed his notice of appeal on December 14, 2016, before filing his post-trial motion, thereby leaving the court with no authority to resolve the motion. Doc. 168 at 1. Rainey is incorrect.
Appellate Rule 4(a)(4)(B)(i) states:
Fed. R. App. P. 4(a)(4)(B)(i). Rule 4(a)(4)(A) encompasses Taylor's Rule 59 motion. See Fed. R. App. P. 4(a)(4)(A)(iv), (v). The Advisory Committee Note to the 1993 Amendment of Rule 4(a)(4) states:
Fed. R. App. P. 4(a)(4) advisory committee's note to 1993 amendment (emphasis added).
The Note precisely describes Taylor's situation. Thus, Taylor's notice of appeal was "suspended" when he later filed his Rule 59 motion, and this court retains jurisdiction to consider the motion. Ibid.; see Sultan v. Fenoglio, 775 F.3d 888, 889 (7th Cir. 2015) (citing Rule 4(a)(4)(B)(i) for the proposition that the district court "mistakenly asserted that it could not rule on [the plaintiff's Rule 59] motion because he already had filed a notice of appeal from the dismissal"); Ross v. Marshall, 426 F.3d 745, 751-52 & n.13 (5th Cir. 2005) ("[T]he timely filing of a motion listed in Rule 4(a)(4)(A) suspends or renders dormant a notice of appeal until all such motions are disposed of by the trial court. This holds true regardless of whether the motion was filed before or after the notice of appeal."); United States v. Silvers, 90 F.3d 95, 98 (4th Cir. 1996) ("Under the 1993 amendments to the Federal Rules of Appellate Procedure, when a party files a timely notice of appeal followed by a timely Rule 59 motion, the notice of appeal is tolled and does not become effective to confer jurisdiction on the court of appeals until the entry of an order disposing of the Rule 59 motion. We agree with Silvers that, based on the language of Rule 4, the district court erroneously concluded that it could not exercise jurisdiction over his Rule 59 motion.") (citation omitted).
Taylor's post-trial motions seek a new trial and, in the alternative, a remittitur. In resolving a Rule 59(a) new trial motion, "federal law requires a district court to determine whether the verdict is against the weight of the evidence[,] ... the damages are excessive, or ... for other reasons, the trial was not fair to the party moving." Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004) (second and third alterations in original) (internal quotation marks omitted); see also Pickett v. Sheridan Health Care Ctr., 610 F.3d 434, 440 (7th Cir. 2010) (same). Taylor's motion for remittitur arises under Rule 59(e). See Cooper Indus., Inc. v. Leatherman Tool Grp., 532 U.S. 424, 433 (2001) ("[T]he role of the trial judge is to determine whether the jury's verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether ... remittitur should be ordered.") (internal quotation marks omitted); Stragapede v. City of Evanston, 865 F.3d 861, 865 (7th Cir. 2017). "Altering or amending a judgment under Rule 59(e) is permissible when ... there has been a manifest error of law or fact." Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir. 2006).
Taylor seeks a new trial on the ground that the jury's liability verdict was against the weight of the evidence. Doc. 158 at 9. "A plaintiff challenging a jury verdict faces a particularly heavy burden because a court will set aside a verdict ... only if no rational jury could have rendered the verdict." Moriconi v. Koester, 659 F. App'x 892, 895 (7th Cir. 2016) (internal quotation marks omitted); see also Latino v. Kaizer, 58 F.3d 310, 315 (7th Cir. 1995) ("[N]ew trials granted because the verdict is against the weight of the evidence are proper only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience."). "When considering whether the jury's verdict goes against the manifest weight of the evidence, a court analyzes the general sense of the evidence, assessing the credibility of the witnesses and the comparative strength of the facts put forth at trial." Willis v. Lepine, 687 F.3d 826, 836 (7th Cir. 2012) (internal quotation marks omitted); see also Mejia v. Cook Cnty., 650 F.3d 631, 633 (7th Cir. 2011) (same). "Jury verdicts deserve particular deference in cases with simple issues but highly disputed facts." Moore ex rel. Estate of Grady v. Tuleja, 546 F.3d 423, 427 (7th Cir. 2008) (internal quotation marks omitted); see also Galvan v. Norberg, 678 F.3d 581, 588 (7th Cir. 2012) ("The district court also has less freedom to overturn a jury verdict in cases involving issues that are easily understood by laypeople.").
The jury's liability verdict here is well-supported by the evidence. Along with twelve other women, Rainey was a contestant on She's Got Game. The show followed the contestants as they traveled around the country with Taylor, competing for his affection during group outings and one-on-one dates. As the show progressed, Taylor gradually eliminated contestants, as in The Bachelor.
On the evening of May 15, 2015, while She's Got Game was filming in Chicago, Rainey and Taylor went on an off-camera outing to a nightclub called Adrianna's Sportsbar. Rainey testified that at the nightclub, when the pair were on a stage in full view of the crowd:
Paul Smith, a security guard working on She's Got Game, testified that he encountered Rainey crying in the hallway of her hotel in the early morning hours of May 16, soon after she returned from Adrianna's.
As shown on video footage from May 18, Rainey confronted Taylor on the show's tour bus about what happened at Adrianna's:
Exh. 3 at 12, 16-23 (transcript of the video). In his videotaped deposition, Taylor denied that he had touched Rainey's private areas, and also denied (though it is very hard to understand how he possibly could have) that Rainey had confronted him on the tour bus.
The only other testifying witness who was at Adrianna's on May 15 was Danny Surrillo, the nightclub's former general manager. Surrillo testified that he remembered seeing Rainey that night and that he did not see Taylor reach his hand under her skirt. On cross-examination, Surrillo stated that he had not been served with a subpoena by Rainey's lawyers prior to trial. Immediately thereafter, Gary Olson, the process server hired by Rainey in 2015 and, coincidentally, by Taylor in 2016, testified that Surrillo had recently "confirmed that [he] was the same person that I delivered the subpoena to produce documents [to] back in August of 2015."
By agreement, the jury was instructed:
Doc. 142 at 24.
Whether the jury's verdict was against the weight of the evidence is not a close question. Rainey's testimony alone would have formed a sufficient basis for the verdict. Smith's testimony regarding Rainey's demeanor immediately following the incident, coupled with the video showing Taylor's failure to deny her allegations when she confronted him on the bus, served as unnecessary icing on the cake. Taylor frivolously asserts that Rainey "did not produce a single eye-witness of her own, nor did she produce any witness to controvert Surrillo's testimony." Doc. 172 at 5; see also Doc. 158 at 9 (arguing that Surrillo's testimony requires a defense verdict). Rainey's eyewitness was Rainey herself, and the jury was entitled to find that her testimony was credible and that Surrillo's credibility was damaged by the process server's testimony, which plainly revealed that he had lied under oath about the subpoena. On this record, the liability verdict will not be set aside. See Moriconi, 659 F. App'x at 895 (affirming the denial of a new trial motion, reasoning that the appellant "cannot establish that the jury's verdict was against the manifest weight of the evidence"); Moore, 546 F.3d at 427 (same).
Because the jury awarded damages on a state law claim, "[t]he question whether the ... award was excessive is controlled by Illinois law." Smart Mktg. Grp. v. Pubs. Int'l Ltd., 624 F.3d 824, 832 (7th Cir. 2010). An award is excessive under Illinois law "if it falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience." Ibid. (quoting Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1079 (Ill. 1997)). The jury's verdict must be given "great deference." Naeem v. McKesson Drug Co., 444 F.3d 593, 612 (7th Cir. 2006). "The amount of a verdict is generally at the discretion of the jury," Baumrucker v. Express Cab Dispatch, Inc., 84 N.E.3d 482, 501 (Ill. App. 2017), so long as the jury "has a reasonable basis for its award," Lee v. Chi. Transit Auth., 605 N.E.2d 493, 510 (Ill. 1992). See Am. Nat'l Bank & Tr. Co. of Chi. v. Reg'l Transp. Auth., 125 F.3d 420, 437 (7th Cir. 1997) (same). Accordingly, "a damages award will not be subject to remittitur where it falls within the flexible range of conclusions which can reasonably be supported by the facts ... ." Best, 689 N.E.2d at 1079 (internal quotation marks omitted).
Taylor contends that the $1,310,100 compensatory damages award was "monstrously excessive" and "had no rational connection" to the evidence. Doc. 158 at 4-6. He is wrong.
The award was based on Rainey's past and future medical expenses, loss of normal life, pain and suffering, and emotional distress. Rainey testified extensively about the emotional distress she experienced from the sexual battery, as well as the medical treatment she sought (and paid for) in its aftermath. Specifically, she testified that, after the assault:
Rainey began seeing a therapist to help her "cope with" the assault and "to try and find a way to be happy again." She described her course of treatment, consisting of therapy and prescribed medications, each with its own benefits and side-effects. Rainey testified that one medication for her depression and anxiety
At the time of trial, Rainey was taking three medications and attending therapy sessions, and she explained that she would continue treatment for "as long as it takes." Her medical records and medical bills were admitted into evidence. Exhs. 19-22. They showed diagnoses and treatment consistent with her testimony, Exhs. 19, 21, and that her therapy bills totaled $1,625.00 from July 1 to August 5, 2015, and $4,434.23 from August 24, 2015 to October 24, 2016, Exh. 22.
Rainey added that Taylor's violent response to her allegations on the tour bus made her feel "violated, degraded, [and] attacked." And after Rainey filed this suit, Taylor's "non-acceptance of or ownership of what he did" made her feel attacked once again. Rainey's testimony focused on one of Taylor's Instagram posts regarding the case. The post, which depicted Taylor wearing Louis Vuitton boxing gloves, stated in relevant part:
Exh. 88. Rainey further testified:
Shana Richardson, Rainey's former business partner, testified as to the changes in Rainey's personality and behavior following the battery. According to Richardson, before the battery, Rainey would
Rainey and Richardson had been developing a spa business called Luxe Spatique before Rainey left for the show. As Richardson recounted, after Rainey returned home:
Richardson added that Rainey's depression prevented them from proceeding with their business. "[W]ithout Priscilla, there's no Luxe Spatique."
The jury could reasonably have determined that $1,130,100 would fairly compensate Rainey for her past and future medical expenses, loss of normal life, pain and suffering, and emotional distress. The jurors "apparently found [Rainey's] testimony to be sincere and sufficient to convince them that she merited the award they gave her." Gracia v. SigmaTron Int'l, Inc., 842 F.3d 1010, 1022 (7th Cir. 2016). The jury could have relied on Rainey's testimony alone to reach this result. See ibid. ("An award for nonpecuniary loss can be supported, in certain circumstances, solely by a plaintiff's testimony about his or her emotional distress. Juries are responsible for evaluating the credibility of witnesses who testify to emotional distress ... .") (internal quotation marks and citation omitted); cf. Thornton v. Garcini, 928 N.E.2d 804, 809-10 (Ill. 2010) ("Based on personal experience alone, the jury could reasonably find that the circumstances of this case caused plaintiff emotional distress."). The jury also could have relied on the documentary evidence, including her medical history and therapy bills. Similarly, Taylor's reaction to Rainey's accusations—both during their in-person confrontation on the tour bus and months later on Instagram—give rise to the reasonable inference that Rainey experienced further emotional distress following the battery. Finally, Richardson's testimony reinforced Rainey's account of her trauma and its impact on her mental and emotional health and on her career, and the jury was entitled to rely on that as well. Cf. Mejia, 650 F.3d at 633 n.1 (observing that courts applying the "manifest weight" standard owe "a decent respect for the collective wisdom of the jury" and "a certain deference to the jury's conclusions") (internal quotation marks omitted).
Taylor further argues that the compensatory damages award is out of line with awards made in similar cases. It is unclear whether the court must or even can consider such comparisons when evaluating a damages award under Illinois law. Compare Naeem, 444 F.3d at 611-12 ("Although making such comparisons is the federal standard for review of compensatory damages, it is not the established methodology employed by Illinois courts. By using such a standard, a district court may allow a larger recovery than would be allowable under Illinois law, or, conversely, it may preclude an award that would be allowable under Illinois law. ... Therefore, ... in employing this methodology, the district court committed error."); with Arpin v. United States, 521 F.3d 769, 776-77 (7th Cir. 2008) (holding that the district court erred by awarding damages in a bench trial without considering awards in similar cases, even though Illinois law "does not require or even encourage such comparisons," because "whether or not to permit comparison evidence in determining the amount of damages to award in a particular case is a matter of procedure rather than of substance, as it has no inherent tendency ... either to increase or decrease the average damages award" rather than "merely to reduce variance," and characterizing Naeem's contrary Erie analysis as dicta), and Jutzi-Johnson v. United States, 263 F.3d 753, 759-60 (7th Cir. 2001) (observing in dicta that a district court awarding damages in a bench trial "should be required" to consider comparable cases because the federal practice of doing so is procedural under Erie); and Fox v. Hayes, 600 F.3d 819, 845-46 (7th Cir. 2010) (considering comparable cases in determining whether a jury's compensatory damages award on Illinois law claims was excessive, without addressing whether such comparisons are appropriate or required). To the extent the court is permitted or required to consider comparable awards in a case arising under Illinois law, those awards provide additional support for the jury's verdict.
In determining whether the award of compensatory damages was "roughly comparable to awards made in similar cases," EEOC v. AutoZone, Inc., 707 F.3d 824, 833 (7th Cir. 2013) (applying federal law), courts need not "completely analogize the damage award in this case to an identical case with either a similar or dissimilar verdict," Gracia, 842 F.3d at 1023 (internal quotation marks omitted). Rather, "[a]wards in other cases provide a reference point that assists the court in assessing reasonableness; they do not establish a range beyond which awards are necessarily excessive." Gracia, 842 F.3d at 1023 (internal quotation marks omitted).
Taylor's argument on this point consists solely of the perfunctory assertion that "the typical damages award for similar claims is between $200,000 and $499,999" and three case citations that do not come close to supporting the assertion. Doc. 158 at 6 & n.1. Taylor thus has forfeited the point. See Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) ("[P]erfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived.") (internal quotation marks omitted).
For her part, Rainey cites several sexual harassment and assault cases in which plaintiffs were awarded compensatory damages greater than $1,130,100. Doc. 168 at 11-12. So even if Taylor had not forfeited the point, and if Seventh Circuit precedent required or allowed the comparison in cases governed by Illinois law, the court would conclude that Rainey's compensatory damages award is roughly comparable to awards made in similar cases. See, e.g., Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 77-78 (1st Cir. 2007) (noting that the jury awarded $1,205,000 in compensatory damages to a sexual harassment victim); Doe v. Celebrity Cruises, Inc., 394 F.3d 891, 896, 918 (11th Cir. 2004) (noting that the jury awarded $1 million in compensatory damages to a sexual battery victim); Pecsi v. Cross, 2016 WL 3456454, at *1-2 (W.D. Mich. June 2, 2016) (awarding $1,742,448 in compensatory damages in a sexual assault case), report and recommendation adopted, 2016 WL 3405871 (W.D. Mich. June 21, 2016).
Taylor argues that the $6,000,000 punitive damages award violates due process. Doc. 159 at 6-9. Punitive damages awards challenged on due process grounds are reviewed under the framework set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).
AutoZone, 707 F.3d at 838 (internal citations, brackets, and quotation marks omitted).
The first Gore guidepost, the reprehensibility of the defendant's conduct, is "[p]erhaps the most important indicium of the reasonableness of a punitive damages award." Gore, 517 U.S. at 575. The Supreme Court has instructed district courts to analyze reprehensibility by
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). "[P]unitive damages should only be awarded if the defendant's culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence." Ibid.; see also Exxon Shipping Co. v. Baker, 554 U.S. 471, 492 (2008) ("[T]he consensus today is that punitives are aimed not at compensation but principally at retribution and deterring harmful conduct.").
The unauthorized touching of a woman's vagina and other intimate areas is a reprehensible act, particularly when done in front of a crowd of onlookers. Under the facts of this case, at least three of the State Farm reprehensibility factors are satisfied: the harm Taylor caused was physical; his tortious conduct evinced an indifference to or a reckless disregard of Rainey's well-being; and his behavior was intentional rather than a mere accident. See State Farm, 538 U.S. at 419. And although no further justification is necessary, the reprehensibility of Taylor's conduct following the battery further justifies the punitive damages award. The court has already reviewed Taylor's vile responses to Rainey's initial effort on the tour bus to discuss the battery ("What you can do is be a woman and shut up"; "Get off this bus before you get your ass strangled"; "I'll fucking choke your ass up"), and to her filing this lawsuit ("other `Tranny Panty' activity in her past that makes this false claim irrelevant"), which confirm that a punitive damages award is eminently reasonable. It is abundantly clear that Taylor's "culpability, after having paid compensatory damages, is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence." Ibid.
As to the second Gore guidepost, the ratio between the punitive damages and the actual harm inflicted on the plaintiff, the Supreme Court has declined to set a fixed ratio to limit punitive damages, see AutoZone, 707 F.3d at 839, instead observing that "few awards exceeding a single-digit ratio between punitive and compensatory damages ... will satisfy due process," State Farm, 538 U.S. at 424-25. The Court has implied that higher ratios are acceptable in cases involving physical injury. See State Farm, 538 U.S. at 426 (rejecting a 145:1 ratio in part because "[t]he harm arose from a transaction in the economic realm, not from some physical assault or trauma"); see also Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1272-73 (10th Cir. 2000) (noting that "a greater ratio may be appropriate" for a "primarily personal" injury, such as sexual harassment). In this case, the punitive damages award was approximately six times the compensatory damages award. That ratio is well within the range the Seventh Circuit has approved. See Gracia, 842 F.3d at 1025 (approving of a 5:1 ratio and citing cases); Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 676-78 (7th Cir. 2003) (affirming a 37:1 ratio); Lampley v. Onyx Acceptance Corp., 340 F.3d 478, 485-86 (7th Cir. 2003) (finding a 9:1 ratio acceptable). Because the court's function is to "police a range, not a point," it "cannot say that the punitive damages in this case are beyond the range of what is acceptable." Estate of Moreland v. Dieter, 395 F.3d 747, 757 (7th Cir. 2005) (internal quotation marks omitted).
The court "need not dwell long" on the third Gore guidepost, the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases, State Farm, 538 U.S. at 428, for Taylor fails to cite any legal authority regarding this factor and thus forfeits any argument he might have had. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) ("We apply [the forfeiture] rule where a party fails to develop arguments related to a discrete issue ... ."); Judge, 612 F.3d at 557 ("We have made clear in the past that it is not the obligation of this court to research and construct legal arguments open to parties, especially when they are represented by counsel, and we have warned that perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived.") (internal quotation marks and brackets omitted). And even if Taylor established that Rainey's award is out of step with civil penalties for analogous conduct, the point would be immaterial. See May v. Nationstar Mortg., LLC, 852 F.3d 806, 818 (8th Cir. 2017) ("[T]he absence of comparable civil penalties does not render the punitive damages award unconstitutionally excessive."); Willow Inn, Inc. v. Pub. Serv. Mut. Ins. Co., 399 F.3d 224, 237-38 (3d Cir. 2005) ("[W]e are reluctant to overturn the punitive damages award on [the] basis [of the third guidepost] alone."); Kemp v. AT&T Co., 393 F.3d 1354, 1364 (11th Cir. 2004) (noting that the third guidepost "is accorded less weight in the reasonableness analysis than the first two guideposts"); Bogle v. McClure, 332 F.3d 1347, 1362 (11th Cir. 2003) ("[A]lthough the punitive damages awarded here are more than the damages available under Title VII for analogous conduct, the difference is not enough, by itself, to suggest that the punitive damages award violates due process."); Swinton v. Potomac Corp., 270 F.3d 794, 820 (9th Cir. 2001) (affirming a punitive damages award where only the third guidepost "weigh[ed] in favor of a reduction").
The analysis could very well end here, with the conclusion that consideration of the Gore guideposts demonstrates that the $6,000,000 punitive damages award "further[s] [the] State's legitimate interests in punishing unlawful conduct and deterring its repetition." Gore, 517 U.S. at 568; see also AutoZone, 707 F.3d at 840 (upholding a punitive damages award after considering the Gore guideposts); Estate of Moreland, 395 F.3d at 758 (same). But the court adds for good measure that two additional points make this an unusually strong case for a large punitive damages award. First, punitive damages are "particularly important in areas such as defamation and sexual assault, where the tortfeasor may, if the only price of the tort is having to compensate his victim, commit the tort because he derives greater pleasure from the act than the victim incurs pain." Kemezy v. Peters, 79 F.3d 33, 35 (7th Cir. 1996) (emphasis added). And second, the award is highly appropriate due to Taylor's substantial wealth. Doc. 142 at 32 (instructing the jury, pursuant to the Seventh Circuit pattern punitive damage instructions and without objection, to consider the "amount of money [that] is necessary to punish Defendant and discourage him and others from future wrongful conduct in light of his financial condition"); see also Gore, 517 U.S. at 591 (Breyer, J., concurring) ("Since a fixed dollar award will punish a poor person more than a wealthy one, one can understand the relevance of [the defendant's wealth] to the State's interest in retribution ... ."); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270 (1981) (observing that "evidence of a tortfeasor's wealth is traditionally admissible as a measure of the amount of punitive damages that should be awarded"); Kemezy, 79 F.3d at 35-36 ("The more wealth the defendant has, the smaller is the relative bite that an award of punitive damages not actually geared to that wealth will take out of his pocketbook, while if he has very little wealth the award of punitive damages may exceed his ability to pay and perhaps drive him into bankruptcy. ... [R]ich people are not famous for being indifferent to money, and if they are forced to pay not merely the cost of the harm to the victims of their torts but also some multiple of that cost they are likely to think twice before engaging in such expensive behavior again.").
During discovery, Taylor refused to provide substantive responses to Rainey's interrogatories regarding his net worth. Docs. 104-1, 104-4. Accordingly, the primary evidence of Taylor's financial condition at trial came from his social media accounts. Here are three examples of posts from his Instagram account, losangelesconfidential:
Exh. 66.
Exh. 72.
Exh. 69.
Taylor also posted on Snapchat this Halloween photo of himself sitting on a sofa next to a table covered in cash:
Exh. 82-83. Those images, like several others shown at trial, depict a tremendously wealthy defendant. Such a defendant—one who can afford a panoply of red sports cars and a blue one to "match the driveway"; to "drop[] a quarter mil" on yet another luxury car; and to celebrate Halloween accompanied by a table costumed in stacks of cash—is less likely than a defendant of ordinary means to be punished or deterred by a modest financial penalty. See Gore, 517 U.S. at 591 (Breyer, J., concurring); Kemezy, 79 F.3d at 35.
The jury reasonably concluded that a lesser financial penalty for Taylor would fail to serve the "legitimate interests" of punitive damages, and that an award of $6,000,000 would be necessary to make him "think twice before engaging in such expensive behavior again." Kemezy, 79 F.3d at 35-36. The punitive damages award was not "grossly excessive in relation to those interests," and therefore will not be remitted. Gore, 517 U.S. at 568 (internal quotation marks omitted).
Finally, without citing legal authority, Taylor contends that the trial was unfair to him because the court denied him a continuance and then instructed the jury that it could infer that his testimony would have been adverse to him. Doc. 158 at 10. Again, Taylor's slapdash briefing results in forfeiture of the argument. See Alioto, 651 F.3d at 721; Judge, 612 F.3d at 557; Lekas v. Briley, 405 F.3d 602, 614-15 (7th Cir. 2005) ("While Lekas alleged in his complaint that his segregation was in retaliation for his filing of grievances, he did not present legal arguments or cite relevant authority to substantiate that claim," and "[a]ccordingly, [his] ... retaliation claim has been waived.").
Even putting aside forfeiture, Taylor's arguments fail on the merits. The pertinent facts and circumstances, and the court's assessment of Taylor's excuse for missing trial, are set forth in detail in the Background section above. To summarize, the court found on multiple occasions that Taylor deliberately failed to appear at trial and then engaged in arguably sanctionable conduct in an effort to disguise that choice as a genuine medical emergency. Those rulings were informed by the totality of the court's experience with Taylor regularly attempting to subvert this litigation by any means at his disposal.
That is not to say that Taylor's behavior before trial began would have prevented a true medical emergency from warranting a continuance. But if Taylor had experienced a true medical emergency on the eve of trial, he would have: (1) informed his attorney immediately, rather than two days after he (allegedly) called the emergency dental hotline; (2) quickly provided the court with flight and hotel records that credibly evinced an intention to attend trial for the entire week, and not just for two days; and (3) prepared and submitted a signed declaration on the first or second (or third) day of trial, supporting his version of the events and confirming his intention to have attended the trial. Taylor would not have: (1) spent the night and early morning partying, in a room with flashing lights, after having called the emergency dental hotline; and (2) used his phone to record and post his partying to social media rather than to notify his lawyer of his medical situation. Submitting a declaration months after trial, and even months after post-trial briefing had concluded, was merely the forfeited cherry atop an already iced cake. And the genuineness of the dental emergency is beside the point in light of the evidence, set forth in the Background section, showing that he never intended to attend the trial in the first place. Taylor did not even ask to appear remotely by videoconference, as one of his witnesses did. He has provided no basis to hold that the denial of his motion for a continuance deprived him of a fair trial.
It necessarily follows that the adverse inference instruction given the jury was warranted. As noted, the court instructed the jury with Seventh Circuit Pattern Instruction 1.19: "Defendant Jayceon Terrell Taylor was mentioned at trial but did not testify in person in court. You may, but are not required to, assume that Mr. Taylor's testimony would have been unfavorable to Mr. Taylor." Doc. 142 at 18. The Committee Comments note that the instruction
Those conditions were satisfied here because the missing witness, Taylor, was the party against whom the inference would be drawn. As the court explained when Taylor initially objected to the instruction:
Taylor neither acknowledges nor articulates a legal objection to the court's rationale for giving the adverse inference instruction. His motion simply states that "the jury received an adverse jury instruction despite the objections of Defendant's counsel." Doc. 158 at 10. That statement is correct as a factual matter, but it is not a legally cognizable ground for a new trial under Rule 59(a)—both because it is forfeited and for the same reasons the court stated on the record at trial. See Alioto, 651 F.3d at 721; Judge, 612 F.3d at 557; Lekas, 405 F.3d at 614-15.
One final observation before concluding. It would be natural to harbor some residual doubt that somebody in Taylor's position, with his abundant resources, would voluntarily absent himself from a trial with so much at stake in terms of fortune and reputation—and that doubt in turn might lead to the question whether Taylor actually intended to attend the trial and in fact was stymied by his dental issue. Taylor's conduct during the entire course of this litigation puts to rest those doubts. And even if doubt remained after that, it would be eliminated by Taylor's consistent history of defaults and failures to appear in court, and even for trial, in several other cases. See The Game: Punching a Cop Cost Me 10 Stacks, TMZ (Dec. 31, 2015), http://www.tmz.com/2015/12/31/the-game-cop-punch-lawsuit-basketball ("We've learned the rapper just lost a lawsuit filed by Onyebuchi Awaji, an off-duty cop he punched during a dispute on a basketball court in Hollywood in March. ... Turns out there was never a trial ... Game blew the whole thing off and never responded to the suit so a judge entered a default judgement in the cop's favor. ... The jury's out on whether or not Game learned a lesson.") (second ellipsis in the original); Dream Team Entm't, LLC v. Fifth Amendment Entm't, No. 3:14-cv-00692-CRS, slip op. at 1-3 (W.D. Ky. Dec. 18, 2015) (entering a $35,000 default judgment against Taylor because, eleven months after being served, he did not respond to a suit alleging that he backed out of a concert at the last minute); Laura Montenegro, The Game Ordered to Pay Former Nanny $200K in Instagram-Libel Case, ABC7 (June 29, 2015), https://abc7.com/815995 (reporting on a $200,000 default judgment entered against Taylor "after he failed to respond to the suit"); White v. Taylor, 2014 WL 4772247, at *1-2 (Cal. App. Sept. 25, 2014) (noting that Taylor defaulted by failing to appear, and then obtained vacatur of the default on the condition that he reimburse the plaintiff for attorney fees incurred in obtaining the default); Hien Nguyen v. Taylor, 723 S.E.2d 551, 556-61 (N.C. App. 2012) (affirming a $15 million damages award against Taylor, and noting that a liability judgment was entered, and jury trial on damages waived, because he did not appear for the first day of trial); Rapper The Game a No-Show in Court, UPI (Mar. 30, 2007), https://upi.com/3577811t (reporting that a New York state judge "issued a warrant for the arrest of rapper The Game after he failed to appear to face charges of impersonating a police officer").
Failing to appear in court, whether for a trial or hearing, whether in a civil or criminal proceeding, is just something Taylor does. And while the court ruled at trial, and reiterated its ruling above, on Taylor's request for a continuance based solely on his conduct in this case, his history of similar behavior in other cases provides confirmation, though none is necessary, that the court's ruling was and remains correct. In retrospect, what Taylor did here was neither an aberration nor a surprise. It was, rather, par for the course.
Taylor's post-trial motions are denied. The verdict and judgment shall stand.