“[A] Rule 50(a) motion is a prerequisite to a Rule 50(b) motion because the [moving party] must apprise the district court of the alleged insufficiency of [the non-moving party’s] suit before the case is submitted to the jury.”
How later courts described this case
- “[A] Rule 50(a) motion is a prerequisite to a Rule 50(b) motion because the [moving party] must apprise the district court of the alleged insufficiency of [the non-moving party’s] suit before the case is submitted to the jury.”
- “Generally, a plaintiff cannot renew a Rule 50 motion that was never made.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:14-cv-00193-MR-DLH
TERESA ANN HENSLEY, Administrator )
of the Estate of David Lee Hensley, )
HAILEY HENSLEY, and RACHELLE )
FERGUSON, )
)
Plaintiffs, )
)
vs. ) O R D E R
)
SARALYNN PRICE, Administrator of the )
Estate of MICHAEL SCOTT PRICE, and )
KEITH ALLEN BEASLEY, individually, )
)
Defendants. )
____________________________________ )
THIS MATTER is before the Court on the Plaintiffs’ “Motion Pursuant
to Rule 59 of the Federal Rules of Civil Procedure for a Judgment Not
Withstanding the Verdict or in the Alternitive [sic] for a New Trial, Rule 50(b)”
[Doc. 110].
I. BACKGROUND
Deputies Michael Price and Keith Beasley (collectively, the
“Defendants”1), both employees of the Haywood County, North Carolina,
1 Michael Price died during the pendency of this action. Saralynn Price, the administrator
of his estate, was substituted as a party defendant. For ease of reference, the Court will
refer to Deputy Price as one of the Defendants.
Sheriff’s Department, shot and killed David Hensley (“the decedent”) outside
his home on the morning of August 9, 2012. The Plaintiffs – the decedent’s
widow and his two daughters -- brought suit against the Defendants in both
their individual and official capacities under 42 U.S.C. § 1983 and North
Carolina law. After the Defendants’ motion for qualified immunity was denied
[see Doc. 57], this case proceeded to a jury trial. On September 20, 2018,
the jury returned a special verdict, finding that the Defendants’ actions were
objectively reasonable. [Doc. 107]. Based on the jury’s factual findings, the
Court entered a Judgment in favor of the Defendants with respect to all the
Plaintiffs’ claims. [Doc. 108].
The Plaintiffs now move for a judgment notwithstanding the verdict or,
alternatively, for a new trial. [Doc. 110]. The Defendants oppose the
Plaintiffs’ motion. [Doc. 112].
II. DISCUSSION
A. Motion for Judgment as a Matter of Law
Rule 50 of the Federal Rules of Civil Procedure provides that a party
may move for judgment as a matter of law if the non-moving party “has been
fully heard on an issue during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary basis to find for the [non-
moving] party on that issue….” Fed. R. Civ. P. 50(a)(1). A motion for
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judgment as a matter of law may be made at any time prior to the submission
of the case to the jury. Fed. R. Civ. P. 50(a)(2). A party may file a renewed
motion for judgment as a matter of law within 28 days after the entry of
judgment. Fed. R. Civ. P. 50(b).
A party’s failure to move for judgment as a matter of law at trial
generally precludes any post-verdict motion under Rule 50(b). See Price v.
City of Charlotte, 93 F.3d 1241, 1249 (4th Cir. 1996) (“[A] Rule 50(a) motion
is a prerequisite to a Rule 50(b) motion because the [moving party] must
apprise the district court of the alleged insufficiency of [the non-moving
party’s] suit before the case is submitted to the jury.”); Gilreath v.
Cumberland Cty. Bd. of Educ., 304 F.R.D. 481, 483 (E.D.N.C. 2015)
(“Generally, a plaintiff cannot renew a Rule 50 motion that was never
made.”), aff'd, 627 F. App’x 271 (4th Cir. 2016). Absent a showing of plain
error or manifest injustice, the Court will not review the sufficiency of the
evidence under Rule 50(b) “because implicit in the [Plaintiffs’] failure to move
for judgment as a matter of law is the belief that the evidence created a jury
issue, and the [Plaintiffs] should not be permitted on appeal to impute error
to the trial judge for sharing that view.” Price, 93 F.3d at 1249 (citation and
internal quotation marks omitted).
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Here, the Plaintiffs never moved for relief under Rule 50(a) prior to
submission of the case to the jury. Thus, they are precluded from asserting
a Rule 50(b) motion at this stage of the proceedings unless they can
demonstrate that plain error or manifest injustice would result if the
sufficiency of the evidence were not reviewed. The Plaintiffs’ argument fails
in both respects. The Plaintiffs concede that both Defendants testified that
the decedent pointed a gun at Deputy Beasley at the time of the shooting.
That evidence alone is sufficient to support the jury’s verdict and to defeat
the Plaintiffs’ motion for judgment as a matter of law. In the broader context
of all the evidence, the decedent first pointed his gun at Deputy Beasley
when the decedent initially exited the home; the decedent then hit his
daughter Rachelle in the head with the gun when his daughters tried to take
the gun away from him; thereafter the decedent pointed his long-nose
revolver at Beasley a second time from a close distance, which resulted in
the decedent being shot. In short, there was ample evidence presented to
support the jury’s conclusion that the Defendants’ use of deadly force was
objectively reasonable under the totality of the circumstances.2
2 In their argument, the Plaintiffs seem to conflate the Rule 59 standard for a new trial
(contrary to the weight of the evidence) with the Rule 50 standard of insufficiency of the
evidence to sustain the verdict. The Plaintiffs’ burden with respect to a Rule 50 motion is
particularly difficult in light of the fact that the Plaintiffs had the burden of proof at trial.
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For all these reasons, the Plaintiffs’ motion for a judgment as a matter
of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure is
denied.
B. Rule 59 Motion
Under Rule 59 of the Federal Rules of Civil Procedure, the Court may
set aside a verdict and grant a new trial if the Court is of the opinion that the
verdict (1) “is against the clear weight of the evidence”; (2) “is based upon
evidence which is false”; or (3) “will result in a miscarriage of justice, even
though there may be substantial evidence which would prevent the direction
of a verdict.” Atlas Food Sys. and Servs., Inc. v. Crane Nat’l Vendors, Inc.,
99 F.3d 587, 594 (4th Cir. 1996) (quoting Aetna Cas. & Sur. Co. v. Yeatts,
122 F.2d 350, 352-53 (4th Cir. 1941)); Fed. R. Civ. P. 59(a)(1) (stating that
court may set aside jury verdict “for any reason for which a new trial has
heretofore been granted in an action at law in federal court”). In reviewing a
motion for new trial, the Court is permitted to weigh the evidence and
consider the credibility of the witnesses. Cline v. Wal-Mart Stores, Inc., 144
F.3d 294, 301 (4th Cir. 1998). The decision to grant or deny a new trial is a
matter within the Court’s sound discretion. See id.
The jury could have found for the Defendants simply because they didn’t believe the
Plaintiffs’ evidence.
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While the Plaintiffs’ Motion is not a model of clarity, the Plaintiffs appear
to contend that a new trial is warranted because the jury’s verdict was against
the clear weight of the evidence and was based upon false evidence. The
Court addresses each of these arguments in turn.
The Plaintiffs first contend that “the clear weight of the evidence
supports [a finding] that the decedent did not have the firearm in his right
hand extended as claimed by the Defendants” and that “[t]he facts clearly
support the Plaintiffs[’] contention that the gun was to the [decedent’s] left
side pointed down” at the time that the Defendants began firing at the
decedent. [Doc. 111 at 4]. Indeed, the Plaintiffs go so far as to argue that
the location of the gun in the decedent’s left hand was “uncontroverted.” [Id.
at 2-3].
It appears that, in the Plaintiffs’ view, if the gun was in the decedent’s
left hand, then he could not have posed an imminent risk of serious harm to
anyone and, thus, the use of deadly force was unreasonable. However, even
if the decedent had the gun in his left hand, the jury could still have
reasonably found that he posed an imminent threat to the officers. A gun
pointed with the left hand poses as great a threat as one pointed with the
right. The more relevant inquiry is whether there was evidence showing that
the decedent was pointing the gun at the officers as he approached rather
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than pointing the barrel of the gun down at the ground. The Plaintiffs appear
to argue in their brief that it is established that the gun was pointed down.
However, the Plaintiffs offered no evidence at trial to support such a finding.
The Defendants, on the other hand, testified that the gun was pointed at
Deputy Beasley.
Once again, an examination of the broader record show that it does
not support the Plaintiffs’ argument. The decedent’s daughters testified that
after the Defendants arrived on the scene, the decedent came out of the
house onto the porch holding a gun. The daughters tried unsuccessfully to
wrestle the gun away from the decedent. The decedent ended up striking
his daughter Rachelle in the head with the gun. At that time, the gun was in
his right hand. The decedent then walked down off the porch and started
walking toward the driveway. The decedent’s daughters were unable to see
what was in his left hand, but they both testified that he had nothing in his
right hand as he approached Deputy Beasley. The Defendants, however,
both testified that as the decedent approached, he was holding the gun in
his right hand and that with his left hand he was “manipulating, cocking,
fanning the hammer” [Beasley Trial Testimony, Doc. 109 at 29] or “doing
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something” with the top of the gun [Price Dep. at 71].3 As such, the verdict
was not contrary to the greater weight of the evidence.
The Plaintiffs next argue that the Defendants’ testimony should be
discounted because it was refuted by the photographic evidence. There
was, however, no photograph of Hensley at the time of the shooting. The
photographs introduced at trial show that when the decedent fell, the gun
ended up underneath him. Based on these photographs, the Plaintiffs
argued a rather tenuous inference to the jury that the gun was not in the
decedent’s right hand when he was shot. Photographs showing where the
gun was found, however, shed little (if any) light on the issue of what hand
the gun was in before it was dropped. The photographs are certainly not
conclusive as to this point. There was conflicting evidence on this issue, and
the jury was well within its province to find as it did and to conclude that the
Defendants had probable cause to believe that the decedent presented an
imminent risk of serious physical harm. The Court cannot say that the jury’s
determination in this regard was against the great weight of the evidence.
3 The parties did not order a full transcript of the trial proceedings. Only Defendant
Beasley’s testimony was transcribed. [See Doc. 109]. However, Defendant Price’s
testimony was presented by way of deposition, and thus the Court is able to cite directly
to that transcript as well.
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As a second grounds for a new trial, the Plaintiffs argue that the
testimony regarding the proper use of deadly force provided by the
Defendants’ expert, Chad Thompson, was contrary to the holding of
Tennessee v. Garner, 471 U.S. 1 (1985), and its progeny and therefore
constituted false evidence that misled the jury. In so arguing, the Plaintiffs
rely on a series of answers given by Thompson in response to questioning
by the Plaintiffs’ counsel during cross-examination. The Plaintiffs’ counsel,
having elicited this testimony, did not object to it. Neither did he move to
strike any of Thompson’s answers or seek a curative instruction to be given
to the jury. The Plaintiffs cannot now seek a new trial based upon testimony
put before the jury by their own counsel. See Davis v. MPW Indus. Servs.,
Inc., 535 F. App’x 220, 222 (4th Cir. 2013).
Even if the Plaintiffs had not waived this argument, the Court finds it to
be without merit. In order to receive a new trial based on allegedly false
testimony, a party must show that without the false testimony, the jury “might
have reached a different conclusion.” Musick v. Dorel Juvenile Group, Inc.,
847 F. Supp. 2d 887, 895 (W.D. Va. 2012), aff’d, 514 F. App’x 389 (2013).
Here, the Plaintiffs complain that the Defendants’ expert was incorrect in his
explanation of the applicable legal standard. Any such error in this regard,
however, was harmless, as the Court correctly instructed the jury on the
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applicable law regarding the use of deadly force at the conclusion of the
case.
For all these reasons, the Court concludes that the Plaintiffs’ request
for a judgment notwithstanding the verdict or, alternatively, for a new trial
should be denied.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiffs’ “Motion Pursuant
to Rule 59 of the Federal Rules of Civil Procedure for a Judgment Not
Withstanding the Verdict or in the Alternitive [sic] for a New Trial, Rule 50(b)”
[Doc. 110] is DENIED.
IT IS SO ORDERED. Signed: June 24, 2019
a Reidinger ie ae
United States District Judge Aa
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