Appendix — Central Florida Investments, Inc. v. Myers

APPENDIX TABLE OF CONTENTS

Order of

The United States Court of Appeals

For the Eleventh Circuit

Page

Re: Affirming Judgment of the District Court

entered January 6, 2010.........

Order of

The United States Court of Appeals

For the Eleventh Circuit

Re: Denying Petition for Rehearing

Petition for Rehearing En Banc

entered April 19, 2010............

Order of

The United States Court of Appeals

For the Eleventh Circuit

eels Wadena App. ]

and

Seah Vaeesveves App. 54

Re: Denying Petition for Rehearing and

Petition for Rehearing En Banc

entered April 19, 2010................

Judgment of

The United States Court of Appeals

For the Eleventh Circuit

entered January 6, 2010.........

iintskinens aes OG

Favaseckesees .. App. 58

App. 1

[NTERED: JANUARY 6, 2010]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 08-16291

D. C. Docket No. 04-01542-CV-ORL-2Z8-DAB

DAWN GEORGETTE MYERS,

Plaint iff-Appellee

Cross-Appellant,

versus

CENTRAL FLORIDA INVESTMENTS, INC.,

DAVID SIEGEL, et al.,

Defendants-Appellants

Cross-Appellees

Appeals from the United States District Court

for the Middle District of Florida

(January 6, 2010)

\pp

Before MARCUS, FAY and ANDERSON

Circuit Judges

MARCUS, Circuit Judge

Defendants Central Florida Investments, Ini

Westgate Resorts, Inc., Westgate Resorts, Ltd., CFI

Sales and Marketing, Ltd., and David Siegel appeal

and plaintiff Dawn Georgette Myers cross-appeals

the judgment of the district court, after a jury trial

in favor of Myers 1a the amount of $610,469.84.

Myers recovered $103,622.09 in compensatory

damages and $506,847.75 in punitive damage

arising from her claim of state law battery, but took

nothing on her claims of sexual harassment under

state and federal civil rights acts. Defendants

challenge the awards under state and federal law

asserting that the evidence can support neither the

compensatory award nor the punitive award. Myer

in turn, asserts that the district court improperly

limited punitive damages, harred evidence of

harassment, denied her fees, and dismissed her state

law claims. Because the district court correctly

answered the many questions raised in these

appeals, we affirm its judgment in all respects

I. Background

\ Fact

The essential facts adduced at trial] are these

Central Flonda Investments, Inc. (“CFI”), is the

parent company for a number of associated entities

Westgate Resorts, Inc., Westgate Kesorts, Ltd.,

Westgate Lakes, Inc., Westgate Lakes, Ltd., and

\pp 3

CFT Sales and Marketing, Ltd which collectively

comprise a real estate company whose primary

business 1s the development and sale of time-share

resorts throughout the United States. Siegel is the

chairman of the board, president, chief executive

officer and soli sLO kholdes of CFI CFI w hie h i; Lhe

largest privately held tume-share company in the

world, 1s valued at approximately $471,000,000

while Siegel himself has a net worth of some

$324,000,000

Dawn Myers testified that she first came to

work at CFI as a salesperson in 1986. She had a real

estate license, and her job required her to sell time

hares Myers Was also an award Winninr

cosmetologist who was licensed to do hair, nails, spa

treatments, and skin care. Cosmetology was _ her

professional passion, and she hoped one day to

develop a spa at one of CFI's resort

In 1994, Myers called the CF] corporate office

in order to request an appointment with Siegel so

that she could make her pitch. Siege!

thoughts, encouraged her to pursue the project, and

on hearing her

us Myers develop d the concept the two went on to

communicate about it every week for about a Year’r

Minally, Siegel authorized the creation of the spa

During the ensuing penod, Myers claims that

she split her tume at CFI, working in the morniny in

sales and working in the afternoon on the spa. She

began to draw a regular salary, rather than work on

straight commission. She also spent a lot of time

dealing with Siegel, and the two developed a

friendship. Myers would later testify, “what he told

App. 4

me that we had in common was the fact that we’re

both ambitious, we both are hard workers, [and] we

both, if we believe in something, you know, we go for

i.”

Siegel was interested in Myers romantically,

and their friendship began to change as Siegel made

that increasingly clear. According to Myers, it was at

the CFI Christmas dance in 1995 where Siegel made

his first unwanted advance. Siegel had asked Myers

to dance, and as they danced he kissed her. Myers

was shocked. Siegel’s overtures towards Myers

continued. He twice offered, at CFI functions and in

Myers’ presence, $1,000,000 to Myers’ boyfriend for

one night with Myers. Myers considered the offers to

be disrespectful and inappropriate. On several

occasions, Siegel made marriage proposals to Myers,

some more serious than others, some on company

property, and at least one in the presence of other

CFI employees. He offered to buy Myers lavish gifts,

including a Porsche, if she agreed to date him. And

once, unsolicited, he even gave her a $10,000 check.

Myers was devastated: “I started crying and I said,

you know, how could you do this? ... 1 said I don’t

need your help. Our friendship does not. have a price

tag on it. How many times do I have to tell you? I

don’t want your money. I don’t need your help.”

Siegel’s pursuit of Myers also began to color

their interactions in the workplace. Myers testified

that he transferred her to a new office, and informed

her that he had done it so that she would be closer to

him. He began to visit her in the office nearly every

day at 11 a.m., even asking for her if he could not

find her himself. When he did find her, she testified

App. 5

at trial, he would give her a hug and sometimes let

his hands slip down to her behind, in full view of her

coworkers. Sometimes he slapped her behind at

work in front of her staff. During lunches at CFI,

Siegel would fondle Myers’ legs for everyone to see;

he touched her legs at the company restaurant at

least twenty times, and probably many more. Siegel

also made inappropriate comments to Myers at

work. IIe talked about her weight, and at the

company gym, he told her that “your ass is getting

fat,” but that it was “okay, because [your] boobs are

big.” And, at a company awards dinner onc night,

Siegel told the CFI crowd that he had asked Myers

to come as his date, but that she had refused him.

She testified that the incident made her terribly

embarrassed.

Myers and Siegel frequently traveled together,

and these trips generally fueled the tension between

them. Thus, for example, Siegel and Myers traveled

together for business to the Bahamas, where, she

testified, he propositioned her. Simuarly, in 1997,

Myers agreed to travel to New York with Siegel on

business. Myers, who was first told that they would

have separate hotel rooms, and who was later told

that they would have separate bedrooms in the same

suite, said that she grew “absolutely furious” upon

discovering that their hotel room had only bedroom.

She went to the bathroom and ericd, but resolved

nevertheless to go about her business in New York

as planned. Myers also agreed to accompany Siegel --

as his friend -- to attend the bar mitzvah of the son

of a CFI executive in Miami. She became “very

angry,” however, when Siegel invited her on a

romantic walk on the beach.

App. 6

On multiple occasions, Myers asked Siegel to

stop his inappropriate behavior. Myers testified that,

“every time I went to him and sincerely asked him,

please, David, stop,” he told her that he would not do

it again. “He seemed extremely sincere that he

would stop, with the exception of the times that he

would make a joke and say | want people to think

that, you know, we're together or youre my

girlfriend.” Myers testified that Siegel in fact wanted

people to think that they were together.

Yet Myers and Siegel continued to work

closely together, and continued to be friends. Myers

testified, “it never crossed my mind at that time to

sever my friendship with him,” because “he’ was my

friend and he was important to me and he... had

fiven me this opportunity and I was extremely

erateful, extremely grateful.” Myers saw Siegel as a

mentor: “how many people get an opportunity to

have someone lke Mr. Siegel who's brilliant in

business in so many ways to, you know, be their

friend, to coach them, to anytime if I need to talk to

him and | picked up the phone, he would take my

call. I mean it meant everything to me.”

Myers considered taking a harder line with

Siegel, but she said that she feared losing her job:

“number one, he’s my boss.” She thought that,

because she did not have a college degree, she might

flounder professionally outside of CFI. She also

testified that she could not simply quit: “I have a

home.... I had bills to pay. I was taking care of my

mom. | can't just quit my job. I'm the only one that

pays my bills. I couldn’t do it. And I really thought

that some day it would stop.”

App. 7

Work on the spa continued. Construction

began in 1997 or 1998, Myers was named the

executive director of the spa, and she stopped

working in sales in order to devote her full attention

to development of the spa. She was given control

over management of the facility, including design

and staffing, subject to approval from the front

office.

According to Myers, once the spa opened in

November of 1999, it became a frequent site of

Siegel’s unwelcome advances. On eight to ten

occasions, Siegel came to the spa _ looking for

treatments from Myers. Towards the end of these

sessions, Siegel would, Myers testified, “let his hands

wander and wander up the back of my legs and on to

my butt.” She asked him to stop, and pushed his

hands away, but he persisted. Furthermore, on

several occasions, towards the end of the treatments,

Siegel would expose himself unnecessarily to Myers;

he would do so with “a big old smile on his face..., so

I would think he knew he was doing it.”

Several times Jackie Siegel, who was Siegel’s

third wife, joined Siegel and Myers in the spa. One

time, while Jackie was present, Siegel told Myers

that “I wanted to have the two of you together and,

you know, well, at least I have the two of you

together now.”

Myers’ said that her most public humiliation

occurred at a CFI charity event in 2000. There were

hundreds of employees at the event, some of whom

had dressed as celebrities. At one point Myers, who

was dressed as Marilyn Monroe, was summoned to

App. 8

the stage by Sicgel, the master of ceremonies, to sing

Happy Birthday. Though Myers did not want to

serenade him, Siegel played to a crowd that was

increasingly egging her on, and she felt that she had

no choice.

Myers took the stage, where Siegel beckoned

her to sit on his lap. Though nervous, and completely

shocked, Myers tried “to be a good sport.” She placed

a napkin on his lap, intending to sit on it. She

testified, “as soon as | put it on his lap, he took his

hand underneath the napkin and you know, like

made it go up like that.” He was feigning an erection.

But she sat down, sang the song -- at the end of

which he kissed her -- and rushed off the stage: “I

just knew i needed to get out of there. | just needed

to get out of there.” Her face had turned red, she felt

the onset of a migraine headache, and as soon as she

left the stage, she began to cry; she felt humiliated.

Myers said she was “dying and mortified.”

Rumors inevitably began to spread

throughout CFI about Siegel and Myers. Myers

claimed that rumors of a relationship between her

and Siegel were ruining her reputation. “[T]here

were rumors flying all around the resort that I was

having this wild affair with Mr. Siegel and no one

would believe me that we were friends.” Indeed, she

said, there were hundreds of rumors about Siegel

and Myers, and it was well-known that Siegel was in

love with Myers. Myers testified that the gossip was

“horrible” and “vicious,” and caused her: to lose

friendships. She added that, during the celebrity

waiter event, she could hear the crowd snickering:

“the people ... would always gossip and say such

App. 9

hateful, ... mean things.” This atmosphere made it

difficult for Myers to go to work: “the whole company

was gossiping about me. Executives were gossiping

about me. Things were getting back to me that

executive's wives were saying, people that didn’t

even know me. I didn’t want to go to work.” Myers

testified that, ultimately, some CFI employees just

thought of her as “a dumb blonde bimbo with big

boobs.”

When Myers began dating a new man in May

of 2000, her already rocky relationship with Sicgel

took a turn for the worse. She testified: “His attitude

just completely changed. Ile was angry, he was just,

when you were around him he tried to just talk down

to you and degrading and humiliating.” He began to

behave differently towards Myers: “it was very, just

aggressive and mean and just demeaning and not

like how it was before .... It was a completcly

different tone.”

This new attitude manifested itself on several

ugly occasions. Once, Siegel pinned Myers against

the wall right in front of the reception desk at the

spa, and in front of the three staff members who

were working the desk. Myers testified, “Georgette,

he said, your breasts look great in that sweater

you're wearing.” He had his hand on her shoulder

and was leaning into her. Myers attempted to

maintain her composure, signaling to Siegel with her

hands to back off, and looked to be relieved once it

was over. Another time, after Siegel and Jackie each

had treatments, and again in the presence of spa

staff, Siegel approached Myers and pinned her

against a wall, suggesting that Myers “come home

App. 10

and lay around with” him and Jackie. He was

reaching out and touching Myers. Myers told him to

stop and tried to push him away. After Myers

extricated herself from the situation, and while she

was walking back towards her office, Siegel further

commented that he wished Myers “would crawl all

over’ him.

In 2000, Myers brought her concerns to a

number of company executives, but she said that

they were of little help. She spoke with Mark

Waltrip, CFI’s chief operating officer, who told her

that for her to date another man was “like waving a

red flag in front of a bull. You know how he feels

about you.” She also spoke with Paul Bosch, director

of resort operations at CFI, who told her that she

“should think about leaving the company.” Finally,

she complained to Sandy Jones, CFI’s director of

human resources, who once told Myers, “what are

you going to do, he’s the president of the company,”

and another time explained, “that’s David.” Jones

was not the only one who believed that the rules did

not apply to the president; Siegel himself testified

that, even if there were corporate rules binding him,

he could change them at his will.

Some CFI employees, including executives,

either played an active role in Siegel’s pursuit of

Myers or were asked to. Jim Gissy, executive vice

president of sales and marketing, called Myers into

his office to tell her that he thought she and Siegel

would be great together. Michael Marder, CFI’s

general counsel, told Myers at his son’s bar mitzvah

that he was “really glad.to see that you’re here with

David.” Siegel approached Roger Behrmann, a

App. 11

manager at CFI, on numerous occasions, Gail Muller,

a manager in sales, and Mary Fetzner, a server at

the CFI restaurant, to ask them to put in a good

word for Siegel to Myers; they all complied.

Ultimately, the environment at CFI took its

toll on Myers. She testified that she was “torn.” On

one hand, she had been “given this amazing

opportunity,” but on the other hand, she felt

“deflated” and “didn’t want to go to work.” She

testified that she felt as if she were “on an emotional

roller coaster all the time.” And Siegel’s change in

behavior only made matters worse: “I was hurt. I

was sad. I didn’t understand.”

Myers was suspended in December of 2000,

and her employment with CFI was terminated later

that month. In that final year at CFI, she earned

$102,223.14.

On September 14, 2001, Myers filed a

complaint with the Equal Employment Opportunity

Commission (“EEOC”).

Bb. Procedural History

On April 5, 2004, CFI sued Myers in the

County Court of the Ninth Judicial Circuit in

Orange County, Florida, seeking to recover $6,230

on the theories of a promissory note, money lent, and

unjust enrichment. On May 19,2004, Myers

answered the suit and counterclaimed against CFI

and Siegel, alleging disparate treatment and hostile

work environment, in violation of both the Florida

Civil Rights Act (“FCRA”), Fla. Stat. § 760, and Title

App. 12

VII of the federal Civil Rights Act, 42 U.S.C. § 2000e,

et_seq., abuse of process, battery, assault, conspiracy,

and contractual attorney’s fees.

The case was then removed to the United

States District Court for the Middle District of

Florida, remanded to county court, and transferred

to the Circuit Court for the Ninth Judicial Circuit.

The circuit court dismissed CFI’s claim for the

$6,230, without prejudice, and ordered Myers to

submit a new complaint. On October 1, 2004, Myers

filed a new complaint. This one included the same

allegations contained in the May 19 counterclaim,

but added counts for slander and malicious

prosecution. On October 20, 2004, the defendants

removed the action to federal court in the Middle

District of Florida.

On April 20, 2005, the district court dismissed

some of the claims, including several of the state law

claims -- abuse of process, slander, malicious

prosecution, conspiracy and attorney’s fees -- over

which the court had _ declined to _ exercise

supplemental jurisdiction. Myers amended her

complaint again. The Second Amended Complaint

contained nine counts. Against Siegel and CFI,

Myers alleged false imprisonment and battery,

common law claims in Florida, and inducement to

prostitution, in violation of Florida Statute § 796.09.

Against CFI alone, she alleged sex discrimination

under Title VII and the FCRA, retahation under

Title VII, the FCRA, and the Florida Private

Whistleblower Act (“Whistleblower Act”), Fla. Stat. §

448.101-105, and negligent retention and

supervision, a common law claim. Thereafter, the

App. 13

district court dismissed the Whistleblower Act claim,

as well as the inducement to prostitution and

neghgent retention and supervision claims. The two

sexual harassment claims, the two retaliation

claims, the battery claim, and the false

imprisonment claim remained.

On April 24, 2006, the district court granted

summary judgment to CFI on the sexual harassment

and retaliation claims, and remanded the two

remaining state law claims to state court. But,

thereafter, a per curiam panel of this Court reversed

in part the grant of summary judgment, finding that

Myers had presented sufficient evidence to support

her Title VII and FCRA hostile work environment

claims. The state law claims that had _ been

remanded were reinstated. See Myers v. Cent. Fla.

Invs.. Inc., 237 F. Appx. 452 (11th Cir. 2007).

After six days of trial,! the jury. found that

Siegel had “subjected the Plaintiff to a hostile or

abusive work environment because of her sex or

gender,’ but that none of the acts of sexual

harassment took place on or after September 15,

2000, the point at which the statute of limitations

1 The jury heard evidence on only battery and sexual

harassment, as Myers had by that time withdrawn her claim

for false imprisonment.

App. 14

barred recovery.? The jury also found that Siegel had

committed battery against Myers, and that it had

occurred on or after May 21, 2000, the relevant date

under the statute of limitations.

Because recovery was barred by the statute of

limitations under Title VII and the FCRA, the jury

did not reach the issue of damages on the sexual

harassment claims. As for the battery claim,

however, the jury awarded Myers $102,223.14 in

compensatory damages and $5,276,640.00 in

punitive damages. These damages were leveled

against both Siegel and CFI. Final judgment wa:

entered for Myers in the amount of $5,378,863.14 on

the battery claim.

Thereafter, the district court denied several

post-trial motions; it did, however, grant the defense

motion that the judgment reflect that CFI had

prevailed on the sexual harassment claim. The

district court also determined that the jury had not

made the findings required under state law to

2 A litigant under the FCRA must file a complaint with

the state of Florida or the EEOC within 365 days-of the

purported violation. Fla. Stat. § 760.11(a). Because Myers had

filed a complaint with the EEOC on September 14, 2001, the

defendants could only be held liable under the FCRA for sexual

harassment occurring on or after September 15, 2000

Moreover, under Title VII, the EEOC complaint must be filed

within 300 days of any violation, 42 U.S.C. 2000e5(e); see also

City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1101 (11th Cir.

2002), meaning that defendants could only be liable under Title

VII for conduct occurring on or after November 19, 2000

3 The statute of limitations for battery is four years in

Florida. See Fla. Stat. § 95.11(3)(0). Myers first asserted

battery in her counterclaim filed May 19, 2004.

App. 15

support a punitive award greater than $500,000.

Accordingly, the Amended Judgment noted that

Myers “shall take nothing’ on the ‘Title VII and

FCRA claims, and reflected that the district court

had reduced the punitive damage award by

$4,776,640. Adjusted for interest, the compensatory

damages were listed as $103,622.09 and the punitive

damages as $506,847.75 for a total award of

$610,469.84. There was no award of attorneys’ fees.

This timely appeal and cross-appeal followed

The statute of lmmitations for battery ts four

years in Florida. See Fla. Stat. § 95.11(3)(O). Myers

first asserted battery in her counterclaim filed May

19, 2004.

lI. Standard of Review

First, the defendants argue that Flonda law

cannot support a compensatory award of this size on

this record. They also challenge the punitive award

under state law, asserting first that punitive

damages are not permitted, and, in the alternative,

that the punitive damages were too great. They also

maintain that the punitive damage award violates

the federal Constitution

Myers claims, in turn, first that the district

court ymproperly applied Florida’s statutory cap on

punitive damages, thereby wrongfully reducing the

pumitive award to $500,000 when the evidence could

support greater damages. Second, she says that the

defendants had the burden of showing that their

unlawful behavior occurred before September

App. 16

15,2000, the relevant date under the tatute of

limitations. ‘‘hird, she states that the district court

during rebuttal, improperly prevented her from

putting on evidence that the defendants sexually

harassed her on or after September 15, 2000; this

evidence, she claims, would prove that her suit wa

timely. Fourth, she asserts that she should be

considered a prevailing party under Title VII, und 1

therefore entitled to attorneys fees under the

statute. Fifth, and finally, she argues that it wa

reversible error for the district court to dismiss

rather than remand a number of state law claim

over which the court had declined to exercisi

ipplemental jurisdiction

A number of standards govern review of the

questions raised in this case. We review for abuse of

discretion the propriety of the compensatory award

under Florida law, see Bogle v. McClure, 332 F.3d

1347, 1359 (llth Cur. 2003) (citation omitted), the

district court’s application of state statutory law to a

jury award, Browning-Ferris Indus. of Vt., Inc. vy

Kelco Disposal., Inc., 492 U.S. 257, 280 (1989)

Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320

1334 n.28 (llth Cur. 1999): see also Engle v. Liggett

Group, Inc., 945 So.2d 1246, 1263 (Fla. 2006), the

district court’s limitation of rebuttal, Conroy _\y

Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228,

1232 (Lith Cir. 2004), and the district court’s refusal

to exercise supplemental jurisdiction over state law

claims. Raney v. Allstate Ins. Co., 370 F.3d 1086

1088-89 (11th Cir. 2004) (citation omitted)

We revicw for clear ecrror, however thi

district court’s findings of fact, Johansen, 170 F.3d

1334; Ilead v. Medford, 62 F.3d 351, 354 (11th Cu

1995), and the district court’s determination that

parties have met the pleading requirement

concerning the fulfillment of conditions precedent

under Rule 9 of the Federal Rules of Civil Procedure

Fitz-Patrick v Commonwealth Oil Ce BE 2d 72

730 (Sth Cur. 1960).4

Finally, we review de novo the propricty |

punitive damages, Goldsmith v. Bagby, 513 F.3d

1262, 1275 (llth Cir. 2008) (citation omitted), the

constitutionality of a punitive award, Johansen, 170

esd ul 1334 eoalso id, at D381 CTA] court has a

mandatory dut LO oOrrect an unconstitutionalls

excessive verdict Oo that 1t contorm to the

requirements of the due process clause.”) (citation

omitted), and whether a party has prevailed unde:

federal law. He id v Medford, 62 F.3d 35] 44 (11th

(fir. 1995

The yuury mwarded S102,223.14 mn

compensatory damag to Myers on her battery

count, and the district court accordingly entered

judgment for Myers in that amount. CFI and Siepel

challenge this award under Florida law, asserting

both that the ize of the uwurd is too yroat for what

they claim 1s an ordinary battery, and that th

specific amount, which 1s equal to Myers’ earning

during the year of her discharve, demonstrat that

busine yo September 30, 1981, are binding on this Court

Bonner v. City of Pochurd. Alu... 661 F.2d 1206, 1209 (11th

1981)

App. 18

the jury inappropriately considered her termination

during deliberations. We are unpersuaded.

A federal court reviewing a compensatory

award on a state law claim must evaluate the

propriety of the award under state law. See

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415,

435 (1996) (citation omitted); Johansen, 170 F.3d at

1331. Under Florida law, jury awards are evaluated

under a five-factor test:

In determining whether an award is excessive

or inadequate in light of the facts and

circumstances presented to the trier of fact

and in determining the amount, if any, that

such award exceeds a reasonable range of

damages or is inadequate, the court shall

consider the following criteria:

(a) Whether the amount awarded is indicative

of prejudice, passion, or corruption on the part

of the trier of fact:

(b) Whether it appears that the trier of fact

ignored the evidence in reaching a verdict or

misconceived the merits of the case relating to

the amounts of damages recoverable;

(c) Whether the trier of fact took improper

elements of damages into account or arrived

at the amount of damages by speculation and

conjecture:

App. 19

(d) Whether the amount awarded bears a

reasonable relation to the amount of damages

proved and the injury suffered; and

(e) Whether the amount awarded is supported

by the evidence and is such that it could be

adduced in a logical manner by reasonable

persons.

Fla. Stat. § 768.74(5). Taking each factor in turn, we

hold that the district court did not abuse its

discretion in upholding the jury's award of

compensatory damages

The first factor asks whether the award

evinces passion or prejudice. The district court cited

Goldsmith v. Bagby, 513 F.3d 1262, 1275 (11th Cur.

2008), to show the validity of an emotional damages

award equal to a claimant’s salary. See Myers v.

Cent. Fla. Invs., Inc., No. 6:04-cv-1542-Orl-28DAB,

2008 WL 4710898, at *15 0.138 (M.D. Fla. Oct. 23,

2008). But the validity of the compensatory award

was not at issue in Goldsmith, see 513 F.3d at 1267-

68, 1276-77, and, as the defendants argue, its

relevance to our inquiry is therefore limited. Uf.

Bravo v. United States, 532 F.3d 1154, 1166-67 (Ith

Cir. 2008) (holding that damages are to be compared

only against awurds tested for size in reported

appellate decisions), reh’g denied, 583 F.3d 1294

(2009)

Defendants are also correct to note that the

jury was prohibited from awarding Myers money for

her termination. See Myers, 237 F. Appx. at 457

(“Myers caunot sustain a viable retaliation claim.”).

App. 20

Indeed, the district court expressly gave the jury

instructions to this effect. Nevertheless, CFI and

Siegel have failed to convince us that the

compensatory award for emotional damages equal to

a claimant’s annual income evinces prejudice,

passion or corruption on the part of the jury.

A jury instructed to consider compensatory

damages for emotional harm is asked to place a

dollar amount on one person’s suffering. The inquiry

is inherently subjective, see Ferrill v. Parker Group.

Inc., 168 F.3d 468, 476 (11th Cir. 1999), as jurors

bring their. own experiences to bear on another

person's humiliation, discomfort, and shame. ‘The

objective -- to make a plaintiff whole, see Sheely v.

MRI Radiation Network, P.A., 505 F.3d 1173, 1199-

1200 (11th Cir. 2007) — plainly is a difficult one, ef.

Williams v._ Trans World Airlines. Inc., 660 F.2d

1267, 1273 (6th Cir. 1981) ({[l]t is admittedly

difficult to place a value upon the resulting

emotional injury from the deprivation of a

constitutional right.”), and the means employed are

far from perfect. Cf. Consorti_v. Armstrong World

Indus.. Inc., 72 F.3d 1003, 1009 (2d Cir. 19985)

(“[(Clompensation for suffering can be accomplished

only in a symbolic and arbitrary fashion.”). But we

will not prohibit jurors from considering a legitimate

measure as they go about their task.

A plaintiffs income is relevant insofar as it

affords some indication, however imprecise, of the

costs tmposed on an employee whose time in the

workplace is inundated and spoiled by a defendant's

behavior. Many of the touchings described by Myers,

particularly the two incidents during which Siegel .

App. 2]

pinned her against the wall in the spa, occurred in

2000, the year in which Myers earned $102,223.14

from CFI. She testified that Siegel's behavior during

this period humiliated her in front of her coworkers

and drained her of her desire to go to work. In

attempting to set a dollar amount that would

properly compensate her for emotional suffering, the

jury was permitted to consider, among other things,

her salary for the time in which she was subjected to

the unlawful behavior. Her salary at the very least

gives some indication to the jury as to how Myers

valued her time at work, from which they may

properly infer the amount of emotional suffering that

flowed from those workplace batteries. To hold

otherwise, and deprive juries of resort to income,

would make the jury’s difficult task that much more

improbable.

The second statutory factor asks whether the

jury ignored evidence or misconceived the merits of

the case. As we have noted, the jury was permitted

to conclude that several instances of battery

occurred on or after May 21, 2000, the statutory

cutoff. There is no reason to believe that a jury

which has discounted the testimony of defense

witnesses and the explanations of defense counsel

has misapprehended a case. Cf. Bogle, 332 F.3d at

1359 (The standard of review for awards of

compensatory damages for intangible, emotional

harm is deferential to the fact finder because the

harm is subjective and evaluating it depends

considerably on the demeanor of the witnesses.”)

(quotation marks and citations omitted).

Oo

App. 22

Florida’s third statutory factor asks whether

improper elements were considered, or if the verdict

was based on conjecture. Defendants argue that

emotional damages were never proven by medical

testimony. But emotional damages need not be

supported by medical testimony in Florida. See

Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234

(Fla. 2001). Defendants also say that no reasonable

jury could award $100,000 for a single battery, and

that the award, therefore, took into account

incidents unrelated to the battery, including time-

barred material. Even if we were to assume that the

jury did consider material external to the battery

itself, we conclude that the award may stall stand.

Under Florida law, a tortfeasor is liable for the

“entire unapportionable injuries’ sustained by a

plaintiff, even if those injuries were heightened by

prior incidents for which the defendant cannot be

held lable. Cf. Gross v. Lyons, 763 So.2d 276,279

(Fla. 2Z00U) (noting that “subsequent tortfeasors have

been liable for entire unapportionable injuries”); C.F.

Hamblen. Inc. v. Qwens, 172 So. 694, 696 (Fla. 1937)

(“It is settled law that where injuries aggravate an

existing ailment or develop a latent one the person

whose negligence caused the injury is required to

respond in damages for the results of the disease as

well as the original iwyury.”). The jury was

permitted to consider the role the sexual harassment

and prior batteries played in heightening the

damages flowing from this battery, even if that

behavior was itself time-barred. Cf. Stockett v. Tolin,

791 F. Supp. 1536, 1556-57 (S.D. Fla. 1992) (stating

that a plaintiffs “pre-existing” vulnerability, or

“greater sensitivity, ... does not warrant any

App. 23

reduction in her recovery. The Defendants must take

the plaintiff as they find her”) (citations omitted).

The fourth statutory factor asks whether. the

award is reasonably related to the damages suffered.

This compensatory award of a little over $100,000 is

not so great as to bear no reasonable relation to the

damages she suffered. See Baldwin v. McConnell,

643 S.E.2d 703, 705-06 (Va. 2007) (approving a

$100,000 compensatory award for assault and

battery); Nash v. Sue Har Equities, LLC, 846

N.Y.S.2d 215, 216 (N.Y. App. Div. 2007) (awarding

$100,000 for assault). Furthermore, since this

battery involved a boss plainly taking advantage of

his employee over an extended time frame, we can

tolerate damages which may be higher than normal.

Cf. Stockett v. Tolin, 791 F. Supp. 1536, 1555 n.4

(S.D. Fla. 1992) (“[C]ases in which a supervisor has

conducted a continued course of sexual advances and

harassment, followed by refusals by the employee,

and retaliation by the supervisor in the form of

denying promotions or making the atmosphere of the

work place oppressive, involved conduct that is

outrageous.”) (quoting Fawcett v. IDS Financial

Svcs” Inc., No. 85-853,1986 WL 9877, at *5 (W.D. Pa.

Jan. 7, 1986)); Hughston v. New Home Media, 552 F.

Supp.2d 559,567 (E.D. Va. 2008) (“There can be few

more insulting injuries than being subjected to

unwelcome sexual touchings by a_- supervisor,

accompanied by lewd solicitations for sex, in the

workplace.”).

The fifth and final statutory factor asks

whether the award is supported by evidence and can

be logically adduced by reasonable people. For all the

App. 24

reasons outlined above -- the existence of the

battery, the existence of prior harassment and

touchings that might have heightened damage

flowing from the battery, and. the _ superior-

subordinate relationship of Siegel and Myers -- this

award is supported by the evidence and appears to

be the result of a logical process conducted by

reasonable people.

Since the compensatory award falls within a

range of damages reasonable under Florida law, it

does not constitute a clear abuse of discretion for the

district court to let it stand. Cf. Fla. Stat. § 768.74(6)

(‘The Legislature recognizes that the reasonable

actions of a jury are a fundamental precept of

American jurisprudence and that such actions

should be disturbed or modified with caution and

discretion.”). Defendants are correct that a smaller

award would have been reasonable, too, but this

award is entitled to a presumption of validity, see

Bogle, 332 F.3d at 1359, and they have failed to

overcome that presumption.

IV. Punitive Damages

la]

The jury awarded $5,276,640 to Myers in

punitive damages flowing from the battery count,

but the district court, relying on the Florida

statutory cap on punitive damages, reduced the

award to $500,000. This capped award was then

adjusted for interest, resulting in the $506,8%/.75

award.

Florida Law

The defendants challenge the punitive award

under Florida law, arguing that punitive damages

should not have been allowed at all, and, in the

alternative, that the award was excessive. Myers

contends that the district court was not empowered

to reduce the award absent a proper motion from

defendants, which she contends was not made.

Florida law provides that:

A defendant may be held hable for punitive

damages only if the trier of fact, based on

clear and convincing evidence, finds that the

defendant was personally guilty of intentional

misconduct or gross negligence. As used in

this section, the term:

(a) “Intentional misconduct” means that the

defendant had actual knowledge of the

wrongfulness of the conduct and the high

probability that injury or damage to the

claimant would result and, despite that

knowledge, intentionally pursued that course

of conduct, resulting in injury or damage.

Fla. Stat. § 768.72(2). Decades of Florida case law

have made it clear that a finding of battery is

sufficient to trigger punitive damages. See, e.g.,

Canseco v. Cheeks, 939 So.2d 1122, 1123 (Fla. Dist.

Ct. App. 2006) (“[I]ntentional battery supplies the

requisite proof of malice, justifying a punitive

damages award.”) (citations omitted); see also Joab,

Inc. v. Thrall, 245 So.2d 291, 293 (Fla. Dist. Ct. App.

App. 26

1971) (“In Florida it is clear that an act of

intentional assault and battery committed without

legal justification supplies proof of mialice.”),5

Inasmuch as the Florda courts have on this issue

been unequivocal, the district court did not err by

allowing punitive damages here.

The district court was empowered, however, to

remit the award if .it determined that it was

unreasonable. See id. § 768.73(1)(d). The factors the

trial court is obliged to consider when assessing the

excessiveness of a punitive award are the same

factors it must consider when assessing the amount

of a compensatory award. See id. § 768.74(5). In

Florida, the courts must conduct this review in order

“to make certain that the manifest weight of the

evidence does not render the amount of punitive

damages assessed out of all reasonable proportion to

the malice, outrage, or wantonness of the tortious

conduct.” Engle v. Liggett Group. Inc., 945 So. 2d

1246, 1263 (Fla. 2006)

“Under Florida law, the purpose of punitive

damages is not to further compensate the plaintiff,

but to punish the defendant for its wrongful conduct

and to deter similar misconduct by it and other

actors in the future.” Owens-Corning Fiberglas Corp,

v. Ballard, 749 So. 2d 483, 486 (Fla. 1999). The

Supreme Court of Florida, therefore, has determined

that the wealth of the defendant is a factor for

5 While the Supreme Court of Florida has never stated

this rule, we may rely on the interpretation of a state's

intermediate courts absent some indication from the state’s

highest court to the contrary. See Galindo v. ARI Mut. Ins. Co.,

203 F.3d 771, 775 (11th Cir. 2000)

App. 27

consideration in determining the reasonableness of a

punitive award: “an award must be reviewed to

ensure that it bears some relationship to the

defendant's ability to pay and does not result in

economic castigation or bankruptcy of the

defendant.” Engle, 945 So. 2d at 1263; see also

Rinaldi v. Aaron, 314 So. 2d 762, 764 (Fla. 1975); St.

John v. Coisman, 799 So. 2d 1110, 1115 (Fla. Dist.

Ct. App. 2001). While it is not “an accurate rule of

law that the greater a defendant's wealth, the

ereater must be punitive damages,” Bankers

Multiple Line Ins. Co. v. Farish, 464 So. 2d 530,533

(la. 1985), a “jury may properly punish each

wrongdoer by exacting from his pocketbook a sum of

money which, according to his financial ability, will

hurt, but not bankrupt.” Bould v. Touchette, 349 So.

2d 1181, 1186-87 (Fla. 1977).

This punitive award of $500,000 does not

offend Florida Statute § 768.74(5). Given the many

years during which Siegel touched and harassed

Myers in the workplace, his repeated and public

humiliations of her, and his refusal to desist despite

her repeated requests, the award can hardly be said

to evince passion, prejudice, or corruption. The

award does not reveal that the court ignored

evidence or considered improper elements, nor is the

award otherwise illogical: Simply stated, the trial

court could find that the $500,000 punitive award

bore a reasonable relation to the damage that would

flow from a battery preceded by so much sexual

misconduct in the workplace.

Furthermore, the punitive damage award

would not result in the economic castigation or

App. 28

bankruptcy of the defendants. The district court

heard testimony that CFI’s net worth exceeded

$471,000,000 and Siegel’s. $324,000,000. Since

defendants’ ability to pay the original $5,378,863.14

judgment is, by their own post-trial admission, plain,

the amended $500,000 punitive award cannot be

said to bear an unreasonable relationship to their

ability to pay.

Under Florida law, punitive damages also are

subject to a statutory cap, and Myers asserts that it

was improperly applied here. Section 768.73(1)(a) of

the Florida Statutes provides that “an award of

punitive damages may not exceed the greater of: 1.

Three times the amount of compensatory damages

awarded to -each claimant entitled’ thereto,

-consistent with the remaining provisions of this

section; or 2. The sum of $500,000.” But there are

statutory exceptions to this general rule, one of

which provides that, “[w]here the fact finder

determines that at the time of injury the defendant

had a specific intent to harm the claimant and

determines that the defendant's conduct did in fact

harm the claimant, there shall be no cap on punitive

damages.” Id. § 768.73(1)(c). In other words, in order

for a punitive award greater than $500,000 to stand,

a Florida jury must have found both specific intent

to harm and actual harm.

There is no question that the jury did not

make any such overt findings. The jury answered

App. 29

eight questions on the verdict form,® none of which

addressed specific intent to harm or actual harm

However, the inquiry does not end there. The jury

verdict is considered alongside the jury instructions,

and if the two can be read together to show that the

jury made the required findings, then a heightened

award may still stand. Cf. McNely v. Ocala Star-

Banner Corp., 99 F.3d 1068, 1072 (11th Cir. 1996)

(stating that the sufficiency of jury instructions

should be evaluated in hght of the jury verdict).

The district court’s instructions to the jury

regarding battery read this way:

1. That Plaintiff Georgette Myers was an

independent contractor? No ...

2. That Plaintiff Georgette Myers was an

employee of any of the following business

entities? ...

Central Florida Investments, Inc. Yes

CFI Sales and Marketing, Ltd Yes

Westgate Resorts, Inc. Yes

Westgate Resorts, Ltd Yes

3. That David Siegel subjected the Plaintiff to

a hostile or abusive work environment

because of her sex or gender”? Yes ...

6 The interrogatories answered by the jury were thes

Claim One

Do you find frum a preponderance of the evidenc

1. That at least one of the act ol sexual]

harussment took plac on or alter peptember

Ld. 2000? No

Claim ‘l'wo

7. Do you find trom u preponderance of the

evidence __ that Defendant David Siege]

committed battery avyuinst Plaintiff? Ye

8. Do you find from a preponderance of the

evidence that conduct constituting battery

occurred on or after May 21, 2000? Ye

9. Do you bind trom a preponderance of the

evidence that Plaintiff should be awarded

compensatory damages on the battery claim?

Yes. lf Yes, in what amount? $102,223.14

1O. Do you find by clear and convincing

evidence that punilive dumave nould be

awarded on the battery claim? Yes. If Yes, in

what amount, based on a preponderance of the

evidence? $5,276,640.00

The jury did not reach questions five and six, which

concerned damages for sexual harassment, hecausi

it answered question four in the negative

A battery i an intentional infliction of

harmful or offensive contact upon the person

of another LO prevaul On her battery claim

the Plaintiff must prove each of the following

ract by a preponderan e of the evidence

ir | ‘| hat David Si sc] intended to LOoOuen (by

Plaintulf’s person

mecond hat David Siegel actually touched th

Plaintiff against her will: and

Third That the contact Wa harmful (7

offensive to the Plaintiff

There 1s no natural readiny of the verdict ulonyside

the instructions that yields the conclusion that the

jury made the re Quist finding As the mstruction

make clear, a civil battery might be supported wher

a defendant had pecihe intent to offend, not harm

and where the defendant effected an offensive, but

not harmful, contact. See Paul v. Holbrook, 696 So

2d 1311, 1812 (Fla. Dist. Ct. App. 1997). Therefor

it can hardly be said that the findings of specifi

intent Lo harm and actua! harm nh ri 17) i jury

verdict olf civil battery

f { } ] } f

The dj Lricht court did mluke pu Lil} relere nce

to the twin requirements when issuing instruction

nm punitive damages, encouraging the jury to

consider whether, at the time of the injury or

damage, David Siegel had a specific intent to harm

the Plaintiff and the conduct of David Sirevel did in

fact harm the Plaintul Yet the court never

instructed the jury that it must find specific intent. to

harm or ae tual harm

kFurthermore. the district court was entitled to

apply the statutory cap of 1ts own volition: “where a

portion of a verdict is for an identifiable amount that

is not permitted by law, the court may simply modify

App. 32

the jury’s verdict to that extent and enter judgment

for the correct amount.” Johansen, 170 F.3d at 1330

(citing New York, L. E. & W. R. Co. v. Estill, 147

U.S. 591 (1893)); see also Browning-Ferms Indus. of

Vt. Inc. v. Kelco Disposal. Inc., 492 U.S. 257, 279

(1989). Because the Florida statute does not require

a motion by the aggrieved party, see Fla. Stat: §

768.73(1)(a), we need not consider whether the

defendants properly moved for application of the

statutory cap.

5. Constitutional Law

The defendants also challenge the

constitutionality of the $500,000 punitive award,

asserting that they did not have fair notice that they

might be hable to pay a punitive award so much

ereater than the compensatory award.

The foundation of the due process inquiry is

found in B.M,W. of North America, Inc. v. Gore, 517

U.S. 559 (1996). “Elementary notions of fairness

enshrined in our constitutional jurisprudence dictate

that a person receive fair notice not only of the

conduct that will subject him to punishment, but

also of the severity of the penalty that a State may

impose.” Id. at 574. While “[pJunitive damages may

properly be imposed to further a State's legitimate

interests in punishing unlawful conduct and

deterring its repetition,” id. at 568 (citations

omitted), and states “have considerable flexibility in

determining the level of punitive damages that they

will allow,” id., an award runs afoul of the due

process clause when it “can fairly be categorized as

‘erossly excessive’ in relation to these interests,” id.

App. 33

(quoting TXO. Prod. Corp. v. Alliance Resources

Corp., 509 U.S. 443,454 (1993)). To help determine

wheu an award is grossly excessive, the Supreme

Court has adopted three guideposts for a court's

consideration: “the degree of reprehensibility” of the

defendant's actions; “the disparity between the harm

or potential harm suffered by [the plaintiff] and his

punitive damages award; and the difference between

this remedy and the civil penalties authorized or

imposed in comparable cases.” Id. at 574-75

Proper due process analysis of a punitive

award in the Eleventh Circuit “requires first that we

identify the state's interest in deterring the relevant

conduct and the strength of that interest. Next, we

review the district court’s findings regarding the

three BMW eguideposts.” Johansen, 170 F.3d at 1335.

While we are “mindful of the difficulty of our task,”

id. at 1333 n.22 (citing Gore, 517 U.S. at 606 (Scahia,

J., dissenting)), we are guided by the understanding

that the constitutional question wtimately hinges on

whether a defendant “had adequate notice that its

conduct might subject it to this punitive damage

award.” Id. at 1335: see also Action Marine. Inc. vy.

Cont] Carbon. Inc., 481 F.3d 1302, 1318 (llth Cur.

2007) (We do not view these guideposts as an

analytical straitjacket, and we maintain as our

overarching aim eliminating the isk that a

defendant is punished arbitrarily or without fair

notice of the possible consequences of its actions.”)

(quotation marks and citations omitted).

The state's interest in deterring defendants

conduct is strong. As the Supreme Court of Florida

has stated:

App. 34

There can be no doubt at this point in time

that both the state of Florida and the federal

government have committed themselves

strongly to outlawing and eliminating sexual

discrimination in the workplace, including the

related evil of sexual harassment. The

statutes, case law, and administrative

regulations uniformly and without exception

condemn sexual harassment in the strongest

possible terms.

Byrd _v. Richardson Greenshields Sees.. Inc., 552 So.

2d 1099, 1102 (Fla. 1989). Furthermore, the state’s

interest in protecting workers from _— sexual

discrimination extends to both = statutory and

common law claims: “Public policy now requires that

employers be held accountable in tort for the

sexually harassing environments they permit to

exist, whether the tort claim is premised on a

remedial statute or on the common law.” Id. at 1104

There is no question that Florida has a

considerable interest in protecting workers from the

kind of sexual misconduct to which Myers was

subjected for so many years. The jury found a

battery by a superior on an employee in the

workplace. This battery followed a long period

during which Siegel and CFI subjected Myers to

sexual hurassment, but for which recovery was

barred by the statute of hmutations. Furthermore,

Myers’ repeated complaints, both to Siegel and other

CFI executives, were ignored and rebuffed. This

unchecked pattern of “antisocial behavior” from

Siegel and CFI underscores the need for punitive

>

App. 35

damages as a means “to correct evil-doing in areas

not covered by the criminal law.” See Campbell v.

Gov't Emplovees Ins. Co., 306 So. 2d 525, 531 (Fla.

1974).

With awareness of the powerful state interests

in play, we turn next to the Gore guideposts. The

first is the degree of reprehensibility, and it is “the

most important indicium.” State Farm Mut. Auto

Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003); see

also Goldsmith, 513 F.3d at 1283 (calling the first

prong the “dominant consideration”). The Supreme

Court. in State Farm, identified five sveeifie factors

for consideration:

We have instructed courts to determine the

reprehensibility of a defendant by considering

whether: the harm caused was physical as

opposed to economic; the tortious conduct

evinced ali indifference Lo Or a reckless

disregard of the health or safety of others: the

targct of the conduct had financial

vulnerability; the conduct involved repeated

actions or was an isolated incident: and the

harm was the result of intentional malice,

trickery, or deceit, or mere accident.

938 U.S. at 419; see also Goldsmith, 513 F.3d at

283 (citing EEOC v. W&O, Inc., 213 F.3d 600, 614-

8 (11th Cir. 2000)). While there is no requirement

hat a certain number of the five State Farm factors

be present in order to support a finding of

reprehensibility, reprehensibility grows more likely

as more factors are present. See State Farm, 538

TS. at 419

App. 36

The district court took each State Farm factor

in turn. On the first factor, the court noted that “the

harm here was emotional rather than economic.”

Myers, 2008 WL 4710898 at *17. As the jury heard

evidence that Myers felt upset, embarrassed,

humiliated, and degraded by Siegel’s actions at CFI,

this finding of fact does not constitute clear error.

On the second factor, the district court noted

that “there 1s some disregard of health at play

insofar as Plaintiffs emotional health was involved.”

Id. Since there was plenty of evidence here,

concerning both the hattery and the sexual

harassment, suggesting an indifference or reckless

disregard towards Myers’ health, whether physical

or emotional, it was not clear error for the district

court to so find.

On the third factor, the district court found

that the employment relationship mattered:

“financial vulnerability is implicated somewhat

because, although this battery claim did not involve

financial consequences for Plaintiff per se, the events

did occur in the workplace and Plaintiffs boss -- who

controlled Plaintiffs earnings -- was the one who

committed the acts.” Id. Myers presented evidence

that she feared making too big a deal of the

touchings and harassment because Siegel was her

boss and she did not want to lose her job. She

testified that she stayed at CFI in part because she

needed the money, and because she knew that her

chosen industry would not be as kind to a person

without a college degree as had been CFI. The

district court’s determination, therefore, that the

App. 37

superior subordinate relationship between Sicgel

and Myers injected a sense of financial vulnerability

into their interactions cannot constitute clear error.

Cf. Stockett _v. Tolin, 791 F. Supp. 1536, 1555 n.4

(S.D. Fla. 1992): Hughston v. New Home Media, 552

F. Supp.2d 559, 567 (E.D. Va. 2008).

On the fourth factor, the district court wrote,

“there is some evidence of repeated actions, though

only a six-month time period is at issue.” Myers,

2008 WL 4710898 at *17. We note, however, that a

jury may consider material external to the charge in

determining the reprehensibility of the charge itself

See Gore, 517 U.S. at 576-77 (Certainly, evidence

that a defendant has repeatedly engaged in

prohibited conduct while knowing or suspecting that

it was unlawful would provide relevant support for

an argument that strong medicine is required to cure

the defendant’s disrespect for the law.”) (citing TXO,

509 U.S. at 462 n.28); State Farm, 538 U.S. at 423

(noting the relevance to the reprehensibility inquiry

of similar “prior transgressions’) (citing TXO, 509

U.S. at 462 n.28): Johansen, 170 F.3d at 1333

(similar). Moreover, “evidence of other acts need not

be identical to have relevance in the calculation of

punitive damages.” State Farm, 538 U.S. at 423-24.

In this case, there was voluminous evidence of

repetition presented to the Jury. Myers described a

pattern of sexual touching from Siegel beginning in

1995 and ending in 2U0UU. He touched her in the

office, in the restaurant, in the spa, in the treatment

room, and on the dance floor. He touched her legs,

her behind, and her shoulders. He touched her when

they were alone and when other CFI employees were

App. 38

around. While these touchings were not all identical,

it did not constitute clear error for the district court

to determine that the battery for which defendants

were held liable “replicate[d] the _—i prior

transgressions.” Cf. id. at 423 (citing TXO, 509 U.S.

at 462 n.28). The district court’s only error was the

suggestion that the similar prior transgressions that

are time-harred are in no way relevant to the

reprehensibility inquiry; such a conclusion does not

flow from our precedents. See Gore, 517 U.S. at 576-

77; State Farm, 538 U.S. at 423 (citing TXO, 509

U.S. at 462 n.28); Johansen, 170 F.3d at 1333.

On the fifth and final factor, the district court

noted that “battery is an intentional tort, although

malice is not required for its commission.” Myers,

2008 WL 4710898 at *17. Inasmuch as battery in

Ilcrida can be sustained by an intent to do mere

offense, see Paul v. Holbrook, 696 So. 2d 1311, 1312

(Fla. Dist. Ct. App. 1997); the district court’s

determination that intentional malice was _ not

present is not clearly erroneous.

After the analysis of the State Farm factors,

the district court turned to Gore and concluded that

“Mr. Siegel's conduct is at the low to middle range of

the reprehensibility scale.” Id. This is a factual

finding, see Johansen, 170 F.3d at 1334, for which

the district court is allowed in its discretion to weigh

the severity of each factor, see State Farm, 538 U:S.

at 419. In lhght of the ample evidence that Myers

suffered emotional distress, that she decided to

stomach the objectionable conduct for fear of losing

her job and her income, that the behavior persisted

for years and over her frequent objections, and that

App. 39

no one at CFI seemed to care, we cannot say that the

district court’s conclusion regarding reprehensibility

is clearly erroneous.

The second Gore guidepost is the ratio of

punitive damages to actual harm inflicted on the

plaintiff. The “proper inquiry is whether there is a

reasonable relationship between the punitive

damages award and the harm likely to result from

the defendant's conduct as well as the harm that

actually has occurred.” Gore, 517 U.S. at 581 (citing

TXO, 509 U.S. at 460) (emphasis in original)

(quotation marks omitted) On _ this issue,

“comparison between the compensatory award and

the punitive award is significant.” Id. at 581 (citing

TXO, 509 U.S. at 459; Pacific Mut. Life Ins. Co. v.

Hashp; 499 U.S. 1, 23 (1991)). In particular, the ratio

of punitive to compensatory damages is instructive.

See State Farm, 538 U.S. at 425. Nevertheless, the

Supreme Court has “consistently rejected the notion

that the constitutional line is marked by a simple

mathematical formula, even one that compares

actual and potential damages to the punitive award.”

Gore, 517 U.S. at 582 (citing TXO, 509 U.S. at 458):

see also State Farm, 538 U.S. at 425; Goldsmith, 513

F.3d at 1283.

In this case, the amended judgment set

punitive damages at $506,847.78 and compensatory

damages at $103,622.09. Since this yields a ratio of

punitive to compensatory damages of approximately

4.89: 1, the district court’s finding that the ratio was

“less than 5 to 1,” Myers, 2008 WL 4710898 at *17, is

not clearly erroneous. Cf. Johansen, 170 F.3d at

1334 ([T]he ratic of the actual to the punitive

App. 40

damages is an historical fact. We accept that finding

unless it is clearly erroneous.”). The district court

then concluded that “[t]his ratio does not suggest an

excessive award.” Myers, 2008 WL 4710898 at *17.

Notably, this Court has approved of a number

of punitive awards where the ratio of punitive to

compensatory damages exceeded 4.89: 1. See

Johansen, 170 F.3d at 1327, 1339 (ratio of 100:1);

Goldsmith, 513 F.3d at 1283, 1285 (ratio of 9.2: 1);

U.S. EEOC v. W&0, Inc., 213 F 24 600, 616-17 (11th

Cir. 2000) (ratio of 8.3:1); Action Marine, Inc. v.

Cont’l Carbon. Inc., 481 F.3d 1302, 1321, 1323 (11th

Cir. 2007) (ratio of 5.5:1); see also Bogle v. McClure,

332 F.3d 1347, 1362 (11th Cir. 2003) (ratio of 3.8: 1).

Furthermore, on the one occasion where this Court

has struck down a punitive award for constitutional]

excess, it reduced an award with a ratio of 8,692: 1 to

an award with a ratio of 2,173: 1. See Kemp v. Am.

Tel. & Tel. Co., 393 F.3d 1354, 1365 (11th Cir. 2004)

(reducing the punitive award from $1,000,000 to

$250,000 when compensatory damages amounted to

$115.05). -Those cases, like this one, implicated

powerful state interests, from protection of the

environment, see Johansen, 170 F.3d at 1339; Action

Marine, 481 F.3d at 13819, to the elimination of

workplace discrimination, see Goldsmith, 513 F.3d

at 1267; EEOC v. W&O, 213 F.3d at 607; Bogle, 332

Kemp, 393 F.3d at. 1357

Again, the state interest in protecting

employees from repeated offensive sexual touchings

by the boss in the workplace is strong. Furthermore,

the $506,847.75 punitive award bears a reasonable

App. 41

relationship both to the harm Myers has suffered

and to the harm likely to result should CFI not be

penalized now. The district court, therefore, did not

err in determining that the punitive ratio of 4.89: 1

does not offend constitutional due process.

Defendants urge, nevertheless, that under

Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008),

any ratio greater than 1: 1 -is constitutionally

suspect. Their reliance on Exxon is misplaced. In

Exxon, the Supreme Court was quite explicit that it

was dealing with maritime law, and not due process

of law. See, e.g., id. at 2626 (“Today's enquiry differs

from due process review because the case arises

under federal maritime jurisdiction, and we are

reviewing a jury award for conformity with maritime

law, rather than the outer limit allowed by due

process ... .”); id. at 2626-27 (“Our review of

punitive damages today, then, considers not. their

intersection with the Constitution, but the

desirability of regulating them as a common law

remedy for which responsibility lies with this Court

as a source of judge-made law in the absence of

statute.”). Defendants’ suggestion that the punitive

award violates the Constitution of the United States

can therefore find no support in Exxon.

The third and final Gore guidepost is a

comparison between “the punitive damages award

and the civil or criminal penalties that could be

imposed for comparable misconduct.” 517 U.S. at

583. When considering criminal penalties, a

reviewing court considers both fines’ and

imprisonment. See Pacific Mut. Life Ins. Co. v.

Haslip, 499 U.S. 1, 23 (1991); see also Gore, 517 U.S.

App. 42

at 583 (citing Haslip, 499 U.S. at 23). These

peripheral sanctions are significant because they can

serve to give fair notice to potential tortfeasors of the

magnitude of sunctions they might face for their

actions. See Gore, 517 U.S. at 584; Johansen, 170

F.3d at 1337.

The third guidepost presents a mixed question

of law and fact:

[T]he selection of the most appropriate point

of comparison actual fine imposed, the

maximum possible penalty or penalties in

Similar cases -- 1s an issue of law. We

therefore, review the district court’

determination of the appropriate comparison

regarding this comparison, i.e., the disparity

between the amount of the punitive damages

award and the amount of the other civil or

criminal sanctions, is an historical fact which

we review for clear error.

334

The district court determined that Florida's

statutory cap on punitive damages was the most

appropriate comparison point. See Myers, 2008 WL

4710898 at *18. This was error. ‘l‘he fact that some

torts can be punished up to $500,000 does not put

people on notice that battery might be punished up

to $500,000. Rather, the district court should have

App. 43

compared the punitive award to the sanctions

available for a criminal battery.’

However, even after determining that the

district court applied the wrong comparison point

we still ultimately affirm its conclusion. We do so

because the proper comparison point did provid

unambiguous notice to the defendants of the

seriousness of their tort. Battery is a crime in

Florida punishable by up to a year 1n prison, see Fla

Stat. §§ 784.0301), 775.082(4)(a), 775.083(1)(d)

which is a serious criminal sanction. The due

process clause 1s violated when defendants do not

have fair notice of the magnitude of the punitive

sanctions they might face. Because battery can

carry a prison term of a year, residents of Florida

have fair notice that battery is an offense with

formidable consequences. A $500,000 punitive award

fits comfortably within thi arruy of potential

Sanctlons.

As a final matter, under controlling case law,

the courts of this Circuit are empowered to consider

the financial resources of the defendunt when

determining the constitutionality of an award. See

Johansen, 170 F.3d at 1238: W&O. 213 F.3d at 616

17 (similar); Kemp, 393 F.3d at 1364. Undeniably,

the $500,000 punitive award 1s a serious sanction

Under Florida law, the cmmunal “offen

occurs when a person: 1. Actually and intentionally

trikes another person against the will of the

Intentionally causes bodily harm to another per

» (B84 O3(1)(a)

43294 OOO OVO

App 14

and may not he taken hehtly lt will now, howe ver

bankrupt or cripple these wealthy defendant:

Moreover, the trial judge could readily find that ua

lesser award would not provide the same level of

deterrence

We can discern nothing to suggest that the

punitive award in this case 1s in any way violative of

the Constitution. Siege! cngaged in a pattern of

offensive sexual] touchings in the workplace, heaping

upon Myers, his subordinate, indignities both

private and public. CIT, alerted to Siegel’s abhorrent

behavior on numerous occasions by Myer did

nothing to stop. it, and even in some instance

encouraged it. It can hardly be said that the

defendants did not have fair notice that years of such

behavior culminating in the battery for which they

were found hable might expose them to a

ubstantial punitive damages award. The jury and

the distrmet court, after hearing extended testimony

plainly meant for the defendants to understand that

their conduct toward Myer was wholly

unacceptable and that 1t would be punished in a

substantial manner. Ultimately, the Constitution

permits the district court to fashion a punitive

remedy that will effectively deliver this messare

Because Myers filed her complaint with thi

KHOC on September 14, 2001, the defendants could

only be held lable for sexual hara ment that had

occurred on or after September 15,2000, under thi

KCRA ee Fla Stat. & 760. 11a) md on or afte,

\pp }!)

2000e-5(e); City of Hialeah. Fla. v. Rojas, 311 F.3d

1096, 1101 Q1th Cir. 2002). Neverthele Myer:

presented little testimony during her case-in-chief

concerning when the complained-of behavior

occurred. While her witnesses described much

harassing conduct, they did not state clearly when 1t

had occurred, orif any had occurred after September

15, 2000. Nor did the defendants put on evidence

r varding when the event deseribed by Myer

WI1LNeSSeS purnortedly occurred When, during

rebuttal, Myers attempted to develop testimony that

would show that ome harassment had indeed

occurred after September 15, 2000, the district court

did not allow it. Myers argues, neverthele Chiat her

failure to put on evidence of tameliness should not

preclude her from recovery under Title VIT and thi

KCRA. because it was the defendants who bore the

burden of proving that their conduct occurred before

the relevant dat Till eee ee they fioled to

discharge that burden

The filiny of a complaint with the EEOC 1s a

condition precedent to a sexual harassment suit. Se

Wilkerson v. Grinnell Corp 270 F.3d 1314. 131%

(llth Cir. 2001); see also 42 U.S.C. § 2000e-5(b). A

harassment ull may vo forward unde Corny

Ircumstances, however, 1f the plaintiff has failed to

10 0 because hling i timely charge of

discrimination with the EEOC is not a jurisdictional

prerequisite = to uit in federal court but

requirement that, lke a statute of Imitation

ubject to waiver, estoppel, and equitable tolling

Zipes v. ‘Trans World Airlines, In 165 U.S. 385, 395

(14382) eo ulso Weaver v. Casa Gallardo. [ne Vf

h.2d 15] 1521 (11th Cir. 1991])

App. 46

a

In pleading conditions precedent, it suffices

occurred or been performed. But when denving that

a condition precedent has occurred or been

performed, a party must do so with particularity.”

Fed. R Civ. P. 9(c). Should a defendant make that

denial, “[t]he plaintiff then bears the burden of

proving that the conditions precedent, which the

defendant has specifically joined in issue, have been

satished.” Jackson v. Seaboard Coast Line KR Co..,

678 F.2d 992, 1010 (11th Cir. 1982). Should a

defendant “not denv the satisfaction of the conditions

precedent specifically and with particularity,

however, the allegations are assumed admitted and

cannot later be attacked.” Id. at 1009.

In this case, the ninth paragraph of Myers’ Second

Amended Complaint addressed conditions precedent

It read: “Plaintiff received her Notice of Right to Sue

letter from the U.S. Equal Employment Opportunity

Commission within 90 days before filing this action,

and has otherwise fulfilled all conditions precedent

to institution of this action.” This general statement

from Myers was sufficient to discharge her duty

under Rule 9 of the Federal Rules of Civil Procedure

See EEOC vy. Times-Picayune Publ’g Corp., 500 F.2d

392, 392 (Sth Cir. 1974).9 We consider, then, the

sufficiency of any denials interposed by the

defendants.

® Opinions of the Fifth Cur

uit rendered before the closs

Boece ore S ty = 9 ) ; thic {" ;

of business on September 30, 1981, are binding on this Court

See Bonner v. City of Pmchard, Ala., 661 F.2d 1206, 1209 (11th

Cir. 1981)

App. 4

Defendants first denial consisted of the

following: “Defendants deny the allegations

contained in paragraph 9 of the Plaintiffs Second

Amended Complaint.” Defendants’ Answer and

Affirmative Defenses to Plaintiffs Second Amended

Complaint at 2, Myers v. Cent. Fla. Invs., Inc., No.

6:04-cv-1542-Orl-28DAB (M.D. Fla. Oct. 25, 30085).

This is as general as a denial can be, and therefore

cannot meet the particularity requirements of Rule 9

of the Federal Rules. See, e.g.. Wilshin v. Allstate

Ins. Co., 212 F.Supp.2d 1360, 1370 (M.D. Ga. 2002).

However, paragraph nine was not the only

place in the Answer where defendants addressed the

fulfillment of conditions precedent. In a_ section

concerning affirmative defenses appeared _ the

following:

38. Plaintiff failed to exhaust all

admunistrative remedies and thus

Ww

wi

cannot obtain relief pursuant to Title

VII or the Florida Civil Rights Act.

Chapter 760.

339. Plaintiff did not exercise her right to

sue or to file her EEOC Complaint

within the time prescribed by the

statute.

Defendants’ Answer and Affirmative Uelonaes to

Plaintiffs Second Amended Complaint at 32, Myers.

No. 6:04-ev-1542-0rl-28DAB (M.D. Fla. Oct. 25,

3005). These paragraphs state which particular

condition precedent they claim Myers failed to fulfill

(the EEOC complaint), and the reason for the failure

(untimeliness). The denial is sufficiently particular.

App. 48

While affirmative defenses are, of course,

distinct from denials, see, e.g., In re Rawson Food

Service. Inc., 846 F.2d 1343, 1349 (11th Cir. 1988),

and while Rule 9(c) calls for a denial, this Court nas

excused technical noncompliance with pleading

requirements where the substance of the pleading 1s

sufficient. See id. at 1348-49 n.9; EEOC v. Klingler

lec. Corp., 636 F.2d 104, 107 (Sth Cir. 1981).

Here, the Answer gave Mvers ample notice that

defendants believed that she had failed to timely file

a complaint with the EEOC. This notice served to

discharge defendants’ duty under Rule Qc) and

successfully shifted the burden of going forward back

to Myers to present evidence of timeliness. This she

did not do.

Moreover, the district court did not abuse its

considerable discretion in preventing Myers from

putting on evidence of timeliness during rebuttal.

“The trial judge has the authority, within hmits, to

control the scope of rebuttal testimony.” United

States v.. Renfro, 620 F.2d 497,502 (5th Cir. 1980)

(citing Geders v. United States, 425 U.S. 80, 86

(1976)). Here, Myers offered no evidence of timeliness

during her case-in-chief, and the defendants did not

mount evidence on the issue during their case. The

evidence of timeliness that Myers attempted to

introduce on rebuttal, therefore, could not “explain,

repel, counteract, [nJor disprove” the testimony

offered by defense witnesses, cf. United States v.

Mock, 523 F.3d 1299, 1303 (11th Cir. 2008) (quoting

United States v. Frazier, 387 F.3d 1244, 1269 (11th

Cir. 2004) (en banc)): there was no evidence to rebut.

App. 49

Vl. Prevailing Party Status

While under Florida law, attorney's fees were

not available to Myers on the state law battery

count, see United Svcs. Auto. Ass'n v. Kubler, 364

So. 2d 57, 58 (Fla. Dist. Ct. App. 1978), Title VT]

provides that “the court, in its discretion, may allow

the prevailing party ... a reasonable attorney's fee

.. 42 U.S.C. § 2000e-5(k); see also Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 414 (1978).

Determining when a party prevails is a

]

complex question:

It the plaintiff has succeeded on any

significant issue in litigation which achieve[d]

some of the benefit the parties sought in

bringing suit, the plaintiff has crossed the

threshold to a fee award of some kind... ‘The

touchstone of the prevailing party inquiry

must be the material alteration of the legal

relationship of the parties in a manner which

Congress sought to promote in the fee statute.

Walker v. Anderson Elec. Connectors, 944 F.2d

841.846 (llth Cir. 1991) (quoting Tex. Teachers

aed we

sn v. Garland Indep. Sch. Dist.. 489 U.S. 782.

791-93 (1989)) (alterations in original) (quotation

marks omitted). The “moral satisfaction” that

accompanies a judicial determination that one has

been aggrieved is insufficient to establish prevailing

party status. See Walker, 944 F.2d at 847 (quoting

Hewitt v. Helms, 482 U.S. 755, 762 (1987)). Rather,

the prevailing party must have settled “some dispute

which affects the behavior of the defendant towards

App. 50

the plaintiff,” Farrar v. Hobby, 506 U.S. 103, 110

(1992) (quoting Hewitt, 482 U.S. at 761) (quotation

marks omitted), and the judgment must be

“enforceable,” id. at 111. Ultimately, “a plaintiff

‘prevails when actual relef on the merits of his

claim materially alters the legal relationship

between the parties by modifying the defendant's

behavior in a way that directly benefits the

plaintiff.” Id. at 111-12; see also ‘laylor v. Sterrett,

640 F.2d 663,669 (5th Cir. 1981) (“[T]he proper focus

is whether the plaintiff has been successful on the

central issue as exhibited by the fact that he has

acquired the primary relief sought.”)

In Walker v. Anderson Electrical Connectors,

944 F.2d 841 (11th Cir. 1991), the plaintiff alleged a

violation of Title VII and two accompanying

violations of state tort law, namely invasion of

privacy and outrage. See id. at 842. The jury

determined that the defendant had sexually

harassed the plaintiff, and committed the state torts,

but awarded nothing in damages on either claim.

See id. at-843. The jury found that the harassment

had not resulted in damages. See id. We determined

that Walker was not a prevailing party under Title

VII, “hold{ing] that to be a prevailing party for

purposes of 42 U.S.C. § 2000e-5(k), requires the

attainment of something more tangible than a jury

finding of sexual harassment.” Id. at 847. Yet this

broad holding does not. reach this cause, where Myers

did attain something more tangible than a jury

finding of sexual harassment -- namely, a

$610,469.84 award on her battery claim.

App. 51

The Second Circuit, however, has encountered

a case that is squarely on point. In Bonner _v.

Guccione, 178 F.3d 581 (2d Cir. 1999), the plaintiff

asserted, among other things, sexual harassment

claims under Title VII and the New York Human

Rights Law. The jury found that the plaintiff had

been sexually harassed, that damage had occurred

within the applicable state time-frame, but that

none had occurred during the applicable federal

time-frame. Id. at 583. She therefore recovered

$90,000 on the state claim, but nothing on the

federal claim. Id. The court determined ultimatcly

that the plaintiff was not a prevailing party under

Title VII, reasoning that there was sunply nothing to

enforce: “Plaintiff here failed to obtain either an

enforceable judgment or settlement agreement

against the defendants on her Title VII cause of

action.” Id. at 594.

The analysis of the Second Circuit is

persuasive. The jury’s determination that CFI and

Siegel subjected Myers to sexual harassment, but

that recovery was time-barred, does nothing to

advance the legal rights asserted by Myers against

the defendants. Based on the judgment rendered, the

defendants need uvi curtail their behavior nor pay

Myers money, ct. Farrar, 506 U.S. at 111-12, and the

legal relationship between the parties has not been

altered. Cf. Walker, 944 F.2d at 846. Moreover, on

the Title VII count, judgment was even entered in

favor of the defendants. Cf. Bonner, 178 F.3d at 599

(“[T]he jury found that the Title VIl claim for

damages (the only relief sought) was time-barred. If

the jury had returned a special verdict containing

such an express finding, the defendants would have

App. 52

been entitled to the entry of a judgment in their

favor.”). In short, Myers is not a prevailing party on

the Title VII claim and is not entitled to attorney’s

fees.10

VII. Reinstatement of Other State Law Claims

As a final matter, Myers asks us to instruct

the district court to reinstate a variety of state law

claims that were dismissed in April of 2005. While

we agree that federal district courts in removal cases

must remand, rather than dismiss, state claims over

which they decline to exercise supplemental

jurisdiction, see Cook v. Sheriff of Monroe County,

402 F.3d 1092, 1123 (11th Cir. 2005); Lewis v. City

of St. Petersburg, 260 F.3d 1260, 1267 (11th Cir.

2001), Myers neglected to raise this issue when this

case first came before this Court. Nearly five years

have passed since these claims were dismissed, and

we decline now to upset the decision of a lower court

that should have been challenged before us more

than two and a half years ago. Cf. Nationalist

Movement. v. City of Cumming, Ga., 92 F.3d 1135,

1138-39 (llth Cir. 1996); Cabar-Wheeler v. Elsea,

71 F.3d 837, 842 (11th Cir. 1996); Martin v. Atlantic

Coast Line R.R. Co., 289 F.2d 414, 416 (5th Cir.

1961).

10 Victory on the battery charge played no causal role in

the decision of the district court not to award attorney’s fees on

the Title VI! charge. If, however, the trial court had declined to

award fees under Title VII on account of an award of fees on a

related matter, our analysis would be different. Cf. Bridges v.

Eastman Kodak Co., 102 F.3d 56, 58 (2d Cir. 1996); Hall v. W.

Prod. Co., 988 F.2d 1050 (10th Cir. 1993).

App. 53

Accordingly, the judgment of the district court

is AFFIRMED.

AFFIRMED.

App. 54

(ENTERED: APRIL 19, 2010]

IN THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

No: 08-16291-2J.J

DAWN GEORGETTE MYERS,

Plaintiff-Appellee-

Cross-Appellant,

versus

CENTRAL FLORIDA INVESTMENTS, INC.,

DAVID SIEGEL,

WESTGATE RESORTS, INC.,

WESTGATE RESORTS LTD,

CFI SALES AND MARKETING, LTD,

Defendants-Appellants-

Cross-Appellees,

WESTGATE LAKES, INC., et al.,

Defendants.

On Appeal from the United States District Court for

the Middle District of Florida

App. 55

BEFORE: MARCUS, FAY and ANDERSON, Circuit

Judges

PER CURIAM:

The petition(s) for rehearing filed’ by

Appellants is DENIED.

ENTERED FOR THE COURT:

/s/__ Stanley Marcus 7

UNITED STATES CIRCUIT JUDGE

App. 56

(ENTERED: APRIL 19, 2010]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 08-16291-dd

DAWN GEORGETTE MYERS

Plaintiff-Appellee

Cross-Appellant

versus

CENTRAL FLORIDA INVESTMENTS, INC

DAVID SIEGEL,

WESTGATE RESORTS, INC.,

WESTGATE RESORTS LTD,

CFI SALES AND MARKETING, LTD,

Defendants-Appellants-

Cross-Appellees.

On Appeal from the United States District Court for

the Middle District of Florida

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

Before: MARCUS. FAY and ANDERSO! Circuit

Judges

PER CURIAM

The Petition(s) for Rehearing are DENIED and no

Judge in regular uctive service on the Court having

requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate

Procedure), the Petition(s) for Kehearing En Banc

are DENIED

MENTE RED FOR THE COURT

/s/

UNITED STATES CIRCUIT JUDGE

(ENTERED: JANUARY 6, 2010]

| nited : tate (Court of Appeal

For the Eleventh Circus

District Court Docket No

04-01542-CV-ORL-28-DAB

DAWN GEORGETTE MYERS

Plaintiff-Appelle

Cross-Appellant

CENTRAL FLORIDA INVESTMENTS, IN

DAVID SIEGEL, et al.,

VDelendants-Appellant

Cro Appellee

Appeals from the United States District Court

for the Middle District of Florida

It is hereby ordered, adjudged, and decreed

that tne attached OpmMion included herein ry’

referenc is entered as the udyment of this Court

luntered: January 6, 2010

For the Court: John P. Ley. Acting Clerh

By: Patch, Jeffre'