Case: 17-13740 Date Filed: 05/14/2018 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13740
Non-Argument Calendar
________________________
D.C. Docket No. 9:16-cv-81696-DMM
PATRICIA GONZALEZ,
Plaintiff-Counter Defendant-
Appellee,
LESHA ROSARIO,
Plaintiff-Appellee,
versus
JAMES BATMASIAN,
individually,
d.b.a. Investments Limited,
MARTA BATMASIAN,
individually,
d.b.a. Investments Limited,
Defendants-Counter Claimants-
Appellants.
Case: 17-13740 Date Filed: 05/14/2018 Page: 2 of 19
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 14, 2018)
Before WILLIAM PRYOR, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Defendants James Batmasian and Marta Batmasian appeal from the district
court’s denial of their motion for a new trial, after a jury returned a verdict in favor
of plaintiff Patricia Gonzalez in Gonzalez’s action for unpaid overtime under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. The defendants
argue that the district court should have ordered a new trial because the verdict was
(1) contrary to the great weight of the evidence, and (2) influenced by improper
and prejudicial statements from the plaintiffs’ attorney. After review, we conclude
that (1) the evidence adequately supported the verdict, and (2) as to the improper
statements, the district court gave curative instructions and did not abuse its
discretion in denying the defendants’ motion for a new trial. We affirm.
I. BACKGROUND
A. The FLSA Action
In October 2016, plaintiff Patricia Gonzalez and co-plaintiff Lesha Rosario
filed this FLSA action against defendants James and Marta Batmasian. The
2
Case: 17-13740 Date Filed: 05/14/2018 Page: 3 of 19
complaint alleged that Gonzalez and Rosario worked as a property manager and a
legal assistant, respectively, for the defendants’ real estate business, elsewhere
identified as Investments Limited. The plaintiffs alleged that they were not paid
overtime wages to which they were entitled, and that they were regularly instructed
to work “off of the clock”—that is, without recording their hours—so that the
defendants could avoid paying overtime.
The complaint asserted one claim for recovery of lost overtime wages,
liquidated damages, compensatory damages, and attorney’s fees. As litigation
progressed, it became clear that the key issues were (1) whether plaintiff Gonzalez,
a property manager, was exempt from overtime pay under the administrative or
executive exemptions of the FLSA, and (2) whether co-plaintiff Rosario, a legal
assistant, had actually worked the “off of the clock” hours she claimed to have
worked.
B. Trial, Verdict, and Motion for New Trial
The three-day jury trial took place on May 1–3, 2017. On the third trial day,
the jury returned a verdict in favor of plaintiff Gonzalez and awarded Gonzalez
$36,939 in unpaid overtime. 1 The jury also found that the defendants “knew or
showed reckless disregard for whether the FLSA prohibited their conduct.”
1
Co-plaintiff Rosario never attended the trial. After the close of evidence, the district
court granted the defendants’ motion for a directed verdict as to Rosario’s claim. Rosario
appealed that decision separately. On February 23, 2018, this Court affirmed the district court’s
3
Case: 17-13740 Date Filed: 05/14/2018 Page: 4 of 19
Subsequently, the district court granted plaintiff Gonzalez’s motion for
liquidated damages, based on the jury’s finding of willful conduct. On May 17,
2017, the district court entered judgment for Gonzalez in the amount of $73,878,
consisting of the jury’s award of $36,939 in unpaid overtime wages plus another
$36,939 in liquidated damages.
The defendants timely moved for a new trial pursuant to Federal Rule of
Civil Procedure 59. The defendants argued that (1) the jury’s verdict was “against
the great weight of the evidence,” and that (2) the “egregious” conduct of the
plaintiffs’ attorney, Chris Kleppin, made it “reasonably probable that the verdict
was influenced by [attorney Kleppin’s] prejudicial statements.”
The district court denied the defendants’ motion for a new trial. This is the
defendants’ appeal.2
II. STANDARD OF REVIEW
We review for abuse of discretion a district court’s denial of a motion for a
new trial under Rule 59. Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1419
(11th Cir. 1986).
directed verdict against Rosario. See Gonzalez v. Batmasian, __ F. App’x __, No. 17-12751
(11th Cir. Feb. 23, 2018). Nothing herein relates to co-plaintiff Rosario’s separate appeal.
2
Plaintiff Gonzalez cross-appealed from the judgment. However, Gonzalez was the
prevailing party in the district court, and stated in her notice of appeal that the cross-appeal was
“just being filed in an abundance of caution.” On December 14, 2017, this Court dismissed the
cross-appeal for lack of standing. See Picard v. Credit Sols., Inc., 564 F.3d 1249, 1255–56 (11th
Cir. 2009) (concluding that a prevailing party lacks standing to bring a “contingent cross-
appeal”).
4
Case: 17-13740 Date Filed: 05/14/2018 Page: 5 of 19
Here, in reviewing the district court’s denial of the defendants’ motion for a
new trial, we will consider both the reasonableness of the jury’s verdict in light of
the evidence and the allegedly prejudicial remarks made by plaintiffs’ attorney
Kleppin. We start with the verdict.
III. REASONABLENESS OF THE VERDICT
A district court should deny a new trial “when, after weighing the evidence,
the trial court cannot find that the verdict is contrary to the great weight of the
evidence.” Id. at 1419. A district court should grant a new trial “only if the verdict
is against the great, not just the greater, weight of the evidence.” Ard v. Sw. Forest
Indus., 849 F.2d 517, 520 (11th Cir. 1988).
In determining whether a verdict is contrary to the great weight of the
evidence, a district court may not substitute its judgment for that of the jury on
questions of fact. Id. A district court “must defer to the jury’s determination when
issues of credibility are involved or the facts are in sharp conflict.” Id. at 522.
A. FLSA and Overtime Exemptions
Plaintiff Gonzalez’s claim was for unpaid overtime under the FLSA. The
FLSA requires employers to pay covered employees for hours worked in excess of
40 hours per week at one and one half times the employees’ regular pay rate. 29
U.S.C. § 207(a)(1). Ordinarily, an employee bringing a private action for unpaid
overtime must establish two elements: (1) that she worked unpaid overtime; and
5
Case: 17-13740 Date Filed: 05/14/2018 Page: 6 of 19
(2) that the employer knew or should have known of the overtime work. Bailey v.
TitleMax of Ga., Inc., 776 F.3d 797, 801 (11th Cir. 2015).
But there are exemptions to the FLSA’s overtime requirement. The two
exemptions at issue here, the administrative and executive exemptions, provide
that the FLSA’s requirements “shall not apply with respect to . . . any employee
employed in a bona fide executive, administrative, or professional capacity.” 29
U.S.C. § 213(a)(1).
Regulations of the U.S. Department of Labor (“DOL”) interpret these
exemptions. Under the DOL regulations, an employee is employed in a bona fide
executive capacity, and is thus exempt from overtime requirements, if she: (1) is
compensated on a salary basis above a certain amount; (2) has as a primary duty
the “management of the enterprise in which the employee is employed or of a
customarily recognized department or subdivision thereof”; (3) customarily and
regularly directs the work of two or more other employees; and (4) has the
authority to hire or fire other employees or recommend a change in employment
status for other employees. 29 C.F.R. § 541.100(a). Likewise, an employee is
employed in a bona fide administrative capacity, and is thus exempt from overtime
requirements, if she: (1) is compensated on a salary basis above a certain amount;
(2) has as a primary duty the performance or office or non-manual work “directly
related to the management or general business operations of the employer or the
6
Case: 17-13740 Date Filed: 05/14/2018 Page: 7 of 19
employer’s customers”; and (3) has as a primary duty “the exercise of discretion
and independent judgment with respect to matters of significance.” 29 C.F.R.
§ 541.200.
Thus, in order to prevail on her FLSA claim, Gonzalez must show that
(1) she was eligible for overtime pay, because she did not fall within the FLSA’s
executive or administrative exemptions, (2) she worked overtime hours for which
she was not paid, and (3) the defendants knew or should have known about the
unpaid overtime. As to eligibility for overtime and the FLSA’s exemptions,
Gonzalez could establish that she was eligible for overtime by showing she did not
meet one of the required multiple elements for both of the two exemptions. 29
C.F.R. §§ 541.100, 200.
B. Evidence Supporting the Verdict in Favor of Plaintiff Gonzalez
Gonzalez introduced evidence to support each element of her claim.
As to her eligibility for overtime, plaintiff Gonzalez testified that for most of
her employment with the defendants’ company Investments Limited, she worked
as a commercial leasing agent. In that post, Gonzalez showed office spaces to
prospective tenants on behalf of the company. Gonzalez testified that she lacked
authority to sign leases, set or negotiate lease prices, approve construction changes
that tenants might request, approve major repairs or renovations, or handle invoices
for maintenance work done on the properties. According to Gonzalez, she did not
7
Case: 17-13740 Date Filed: 05/14/2018 Page: 8 of 19
direct other employees how to do their job, apportion work among employees,
maintain production or sales records for use in supervision or control, appraise
employees’ productivity and efficiency, promote, demote, or transfer any
employee, or provide for the safety and security of employees. Gonzalez further
testified that she did not have the authority to hire or fire employees and did not
have a management or administrative position.
James Baker, the comptroller of Investments Limited, testified that Gonzalez
did not supervise anyone and did not have the authority to hire or fire employees.
Witness Baker also testified that Gonzalez was not involved in budgeting or
financial planning for Investments Limited, had no say in how property was
purchased or leased, had no authority to negotiate on behalf of the company, and
took no part in formulating or implementing management policies.
Several lower-level employees testified that Gonzalez did not have the
authority to set or raise employee wages, discipline employees, or interview or
select employees.
As to working unpaid overtime hours, Gonzalez testified that when she
started working for Investments Limited, she was told she would work 40 hours
per week and her schedule would be from 8:00 a.m. until 6:00 p.m., with a 1-hour
break for lunch. She was paid an hourly wage for this schedule. However, soon
after Gonzalez started at the company, defendant James Batmasian told her she
8
Case: 17-13740 Date Filed: 05/14/2018 Page: 9 of 19
was required to work on Saturdays as well. She regularly worked several hours on
Saturdays, in addition to coming in early or staying late on weekdays. Gonzalez
estimated that she worked an average of 14 overtime hours per week, for which she
was not paid.
As to the defendants’ knowledge, Gonzalez introduced an email sent by
defendant James Batmasian to comptroller James Baker and three other employees,
asking them to “confirm that we didn’t pay out any overtime this payroll period,
nor will we pay any overtime going forward, either.” Witness Baker also testified
that defendant James Batmasian “did not want to pay overtime.” And Gonzalez
testified that Batmasian told her to work on Saturdays.
C. Analysis of Evidence
As noted above, in order for the jury to find for Gonzalez, it had to find that
(1) Gonzalez was eligible for overtime pay, because she did not fall within the
FLSA’s executive or administrative exemptions, (2) Gonzalez worked overtime
hours for which she was not paid, and (3) the defendants knew or should have
known about the unpaid overtime.
Here, Gonzalez testified that she worked an average of 14 hours of overtime
each week and was not paid for this overtime. She testified that defendant
Batmasian directed her to work on Saturdays, which was outside her scheduled
hours. An email introduced as a trial exhibit revealed that Batmasian asked his
9
Case: 17-13740 Date Filed: 05/14/2018 Page: 10 of 19
payroll employees to ensure the company did not pay overtime. And Gonzalez
testified that she did not direct other employees how to do their job, apportion
work among employees, maintain production or sales records for use in
supervision or control, appraise employees’ productivity and efficiency, promote,
demote, or transfer any employee, or provide for the safety and security of
employees. Likewise, witness Baker testified that Gonzalez did not supervise
anyone, did not have the power to hire or fire employees, was not authorized to
negotiate on behalf of the company, and took no part in formulating or
implementing management policies.
The defendants’ witnesses testified to the contrary, and there was a
significant amount of evidence for the defendants too. But, as the defendants point
out in their brief on appeal, this case was “largely a ‘he said, she said’ trial.” If the
jury credited the testimonies of plaintiff Gonzalez and witness Baker, the jury
could reasonably find that Gonzalez was not a manager or administrator, that she
worked overtime hours for which she was not paid, and that the defendants knew
about the unpaid overtime. See 29 U.S.C. § 207(a)(1); 29 C.F.R. §§ 541.100, 200;
Bailey, 776 F.3d at 801. The district court properly deferred to the jury’s
credibility determination. Ard, 849 F.2d at 522. Therefore, the district court
properly concluded that the verdict was reasonable and not contrary to the great
weight of the evidence. Iervolino, 796 F.2d at 1419.
10
Case: 17-13740 Date Filed: 05/14/2018 Page: 11 of 19
IV. ATTORNEY KLEPPIN’S STATEMENTS
When a motion for a new trial is based upon the misconduct of counsel, we
determine whether the misconduct was “such as to impair gravely the calm and
dispassionate consideration of the case by the jury.” Vineyard v. Cty. of Murray,
Ga., 990 F.2d 1207, 1213 (11th Cir. 1993) (quotation omitted). “[A]bsent an abuse
of discretion, the decision of the trial court, which has had the opportunity to hear
the offensive remarks within the context of the argument and to view their effect
on the jury, should not be disturbed.” Allstate Ins. Co. v. James, 845 F.2d 315, 318
(11th Cir. 1988).
In making this determination, we “look to the entire argument, the context of
the remarks, the objection raised, and the curative instruction.” Id. With respect to
curative instructions, we presume that a jury follows its instructions. Gowski v.
Peake, 682 F.3d 1299, 1315 (11th Cir. 2012). This is so because “the influence of
the trial judge is necessarily and properly of great weight and his lightest word or
intimation is received with deference, and may prove controlling.” Allstate Ins.
Co., 845 F.2d at 319 (quotations and alterations omitted).
The defendants identify multiple statements by either attorney Kleppin or
witness Baker that they contend prejudiced the jury. Before we discuss the
statements, they need to be placed in context.
A. James Batmasian’s Tax Conviction
11
Case: 17-13740 Date Filed: 05/14/2018 Page: 12 of 19
In 2008, defendant James Batmasian was sentenced to eight months in
federal prison after pleading guilty to willful failure to collect or pay over tax, in
violation of 26 U.S.C. § 7202.
In the instant litigation, the defendants moved in limine to exclude evidence
of Batmasian’s prior conviction. In an oral ruling before trial, the district court
ordered attorney Kleppin to “stay away from” the prior conviction in his opening
statement, but concluded the prior conviction was “probably fair game for
impeachment.” The district court further stated that the prior conviction “might
come in” in connection with the issue of whether the defendants made unreported
cash payments to the plaintiffs.
At trial, James Batmasian testified briefly. Although Batmasian was a
defendant, he was called as a witness by plaintiffs’ attorney, Kleppin. Early in the
direct examination, Kleppin asked Batmasian if it was true that he was convicted
of “a felony that deals with dishonesty” in the last ten years; Batmasian confirmed
that it was true. Defense counsel did not object, and the prior conviction was not
raised again during Batmasian’s own testimony.
However, as discussed further below, the defendants’ argument on appeal is
not that Basmasian’s prior conviction should not have been mentioned at all during
the trial. Rather, their argument is that throughout the trial attorney Kleppin made
allusions to the conviction that were outside the parameters of the district court’s in
12
Case: 17-13740 Date Filed: 05/14/2018 Page: 13 of 19
limine order, and that the cumulative effect of these allusions and other improper
statements prejudiced the jury and require a new trial.
B. Remarks and Curative Instructions
We thus turn to the specific remarks to which the defendants object. The
most significant specific remarks are as follows.
First, attorney Kleppin asked a witness about his first meeting with
defendant James Batmasian. When the witness said he did not remember the name
of the town where they met, Kleppin asked: “It wasn’t the Rock Hill Federal
Penitentiary?” The district court sustained defense counsel’s objection and
instructed the jury to disregard that question.
Second, in his closing argument, attorney Kleppin told the jury that James
Batmasian was “[c]onvicted of a felony with respect to a crime involving
dishonesty,” that the defendants disliked witness Baker because Baker “always
tried to keep the company doing things that were legal,” that the defendants were
engaged in “one, big scheme to evade payroll taxes on all of that overtime,” and
that the defendants were “[p]eople from Harvard who really know better, who have
been in a lot of trouble before, as you have heard, with this stuff and in other things
in their lives.”
Third, attorney Kleppin referred several times to an FLSA audit of the
defendants’ company, which supposedly concluded that plaintiff Gonzalez was not
13
Case: 17-13740 Date Filed: 05/14/2018 Page: 14 of 19
exempt from overtime requirements. However, no audit report was introduced into
evidence, and Kleppin never deposed the person who supposedly conducted the
audit. The district court instructed the jury to disregard Kleppin’s statements about
the audit, saying:
What this lawyer is saying is not evidence. I’m not quite
sure what he is doing, at this point; but please disregard
the statements of the lawyer as to evidence. Let’s pay
attention to the witnesses.
The district court also stated in front of the jury that attorney Kleppin was “trying
to bypass the rules of evidence.” Subsequently, outside the presence of the jury,
the district court said it would not allow the audit into evidence without a proper
predicate. Attorney Kleppin nevertheless alluded to the audit again the next day.
Fourth, attorney Kleppin suggested that certain emails, which the defendants
produced in discovery, had been altered to remove material information. Later, the
defendants published the full emails to the jury, showing they were not altered or
redacted.
In addition, on several other occasions, attorney Kleppin suggested the
defendants tried to avoid paying taxes; many of these remarks resulted in sustained
objections.3
3
During cross-examination by defense counsel, witness Baker responded to a question
about Baker’s own tax returns by saying: “I wasn’t going to jail, like Mr. Batmasian, and pay
$250,000 in penalties . . . That man went to jail for eight months.” In front of the jury, the
district court admonished witness Baker not to pursue his “agenda,” but rather to “[a]nswer the
14
Case: 17-13740 Date Filed: 05/14/2018 Page: 15 of 19
C. Analysis of Remarks
Considering the remarks of attorney Kleppin in light of the entire argument,
the defendants’ objections, the district court’s curative instructions, and other
surrounding context, it is far from clear that the remarks “impair[ed] gravely” the
jury’s deliberations. See Allstate Ins. Co., 845 F.2d at 318; Vineyard, 990 F.2d at
1213. The jury reached a verdict that was supported by the evidence. Attorney
Kleppin made several objectionable statements, but the district court addressed
many of those statements with curative instructions or other comments that put
attorney Kleppin’s behavior in context. A jury is presumed to follow its
instructions. See Gowski, 682 F.3d at 1315. There is no indication it did not in
this case.
Indeed, in some instances attorney Kleppin’s statements may have been
harmful to his own clients, not helpful. For example, when Kleppin alluded to the
supposed FLSA audit, the district court not only told the jury to disregard
Kleppin’s statements, but also said it was “not quite sure what [Kleppin] is doing”
and that Kleppin was “trying to bypass the rules of evidence.” Likewise, after
Kleppin accused the defendants of altering documents before producing them, the
defendants showed the original documents to the jury and proved Kleppin wrong.
lawyer’s questions and don’t get into things that have nothing to do with this case.” The district
court instructed the jury to disregard the last three minutes of testimony. Since this was during
cross-examination by defense counsel, we focus more on attorney Kleppin’s own statements.
15
Case: 17-13740 Date Filed: 05/14/2018 Page: 16 of 19
Arguably, in these exchanges Kleppin undermined his own credibility with the
jury. In any event, we cannot say that Kleppin’s improper remarks required a new
trial. The district court heard attorney Kleppin’s remarks in context and viewed
their effect on the jury, and concluded that the jury was not unduly prejudiced. See
Allstate Ins. Co., 845 F.2d at 318. Given our deference to the district court in such
matters, we conclude that the defendants have not carried their burden to establish
that the district court abused its discretion in denying their motion for a new trial.
Iervolino, 796 F.2d at 1419.
The defendants rely on our decision in Allstate Ins. Co. and the former Fifth
Circuit’s decision in O’Rear v. Freuhauf Corp., 554 F.2d 1304 (5th Cir. 1977), but
those decisions are materially different and do not help the defendants. In Allstate
Ins. Co., the plaintiff, insurer Allstate, sought a declaratory judgment that the
defendants’ homeowners insurance policy was null and void because the
defendants deliberately set the fire that destroyed their home. 845 F.2d at 317. In
his closing argument, Allstate’s attorney implied to the jury that “[t]hat’s why [the
jurors’] insurance premiums [were] so high,” and suggested that the jury could “do
something about this.” Id. at 318. The district court overruled defense counsel’s
objection, refused a curative instruction, and denied Allstate’s motion for a new
trial. Id. at 316, 318.
16
Case: 17-13740 Date Filed: 05/14/2018 Page: 17 of 19
We concluded that the district court committed reversible error, because
Allstate’s attorney’s remarks were “tailored to appeal to the listener’s self interest”
and “identified the jurors with the group of persons who might be adversely
affected by a decision for” the defendants. Id. at 319. We also emphasized that the
attorney’s improper argument was “amplified” by the district court’s denial of
Allstate’s objection and refusal to give a curative instruction to the jury. Id.
Here, by contrast, attorney Kleppin’s remarks were not tailored to the jurors’
self-interest, but rather were aimed at portraying the Batmasians as dishonest. And
importantly, here the district court sustained many of the defendants’ objections
and issued several curative instructions, in addition to other criticisms of attorney
Kleppin. The likelihood that the jury’s deliberation was “impair[ed] gravely” by
Kleppin’s remarks was, accordingly, significantly lower than in Allstate Ins. Co.
See Vineyard, 990 F.2d at 1213.
In O’Rear, defense counsel violated a specific exclusionary order by the
district court. Prior to closing arguments, the district court ordered counsel for
both parties not to allude to the dismissal of two third-party defendants from the
action. 554 F.2d at 1307. Defense counsel disobeyed this order, alluded to the
dismissal in his closing argument, and further suggested that the plaintiff “let [the
third-party defendants] just go off without scot-free” in exchange for the third-
party defendants’ favorable testimony. Id. The plaintiff moved for a mistrial, but
17
Case: 17-13740 Date Filed: 05/14/2018 Page: 18 of 19
the district court declined to rule on the motion and instead submitted the case to
the jury, with an instruction to disregard defense counsel’s statements. Id at 1307–
08.
The former Fifth Circuit concluded that the district court committed
reversible error. Id. at 1308-09. The Court noted that defense counsel’s argument
was contrary to specific court orders and deliberately reemphasized the false
impression of a “deal” with the third-party defendants, which counsel had been
fomenting throughout the trial. Id. at 1308. The Court also noted that plaintiff’s
counsel in its closing argument was unable to rebut defense counsel’s closing
argument due to the exclusionary order, which defense counsel had ignored. Id. at
1308–09. The Court concluded, “This disparity in treatment of counsel by the
judge unfairly hamstrung [plaintiff’s] counsel.” Id. at 1308-09. In addition, the
Court found that the district court’s curative instruction was inadequate because it
did not explain why the third-party defendants were dismissed from the action. Id.
at 1309.
Here, by contrast, attorney Kleppin followed the district court’s order not to
mention defendant Batmasian’s conviction during opening argument, and then
used the conviction for impeachment when Batmasian testified. While attorney
Kleppin should not have necessarily mentioned the prior conviction so often, this is
not a case where the district court forbade parties entirely from mentioning a
18
Case: 17-13740 Date Filed: 05/14/2018 Page: 19 of 19
subject matter (as the district court did in O’Rear with the dismissal of the third-
party defendants) and then counsel violated that specific order.
In addition, while O’Rear demonstrates that there are times when curative
instructions alone do not cure an attorney’s improper conduct, that case simply
involved worse attorney conduct, less effective curative instructions, and a greater
risk of prejudice to the jury than exist in the present case. For example, the district
court here did not apply its evidentiary rulings differently between the parties.
And the district court’s curative instructions here did not ignore a lingering
conspiracy theory or false impression fomented by attorney Kleppin.
V. CONCLUSION
Based on the foregoing reasons, we conclude that the district court did not
abuse its discretion in denying the defendants’ motion for a new trial. We
therefore affirm the judgment in favor of plaintiff Gonzalez.
AFFIRMED.
19