PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_______________ ELEVENTH CIRCUIT
06/11/99
No. 98-5225 THOMAS K. KAHN
Non-Argument Calendar CLERK
_______________
D. C. Docket No. 97-7029-CV-WJZ
JEAN JOSEPH ETIENNE, on behalf of himself,
and all others similarly situated,
Plaintiff-Appellant,
versus
INTER-COUNTY SECURITY CORPORATION,
a Florida Corporation,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Florida
______________________________
(June 11, 1999)
Before BIRCH and BARKETT, Circuit Judges, and HENDERSON, Senior Circuit Judge.*
__________________
* This decision is rendered by a quorum, due to Judge Henderson's death on May 11, 1999. 28
U.S.C. § 46(d).
PER CURIAM:
On consideration of appellant's motion to alter and/or amend the judgment, the
prior opinion issued on April 30, 1999, and published at 173 F.3d 1372 (11th Cir.
1999), is modified, as follows:
We vacate the introductory paragraph and adopt in its place the following:
This is an appeal from the jury's verdict for the defendant in the
plaintiff's action brought for failure to pay overtime wages under the Fair
Labor Standards Act. Plaintiff/appellant Etienne raises three issues: (1)
the district court erred in denying his motion for judgment as a matter of
law, (2) the jury verdict was contrary to law and against the clear weight
of the evidence, and (3) the district court erred in its jury instructions
regarding the burdens of proof. We conclude that the district court did
not err in refusing to give Etienne's requested jury instructions. We
decline to consider Etienne's claim that jury's verdict went against the
weight of the evidence because Etienne did not raise this argument
before the district court. Finally, we conclude that the district court did
not err in denying the motions for judgment as a matter of law, except
with respect to $18.62 in wages, which the defendant admitted to owing.
We vacate the last paragraph in section (1) of the opinion discussing the motion
for judgment as a matter of law and adopt in its place the following:
The operations manager, relying on company records, testified that
Etienne was paid all the overtime compensation he earned, with the
exception of $18.62, which was the payroll company's error. Etienne
testified that he worked additional hours for which he was not
compensated. The evidence was essentially a credibility determination,
with the exception of the $18.62 the defendant admitted to owing, and
the credibility of the witnesses was the province of the jury. Therefore,
the district court did not err in denying the motions for judgment as a
matter of law, except with respect to the $18.62. We vacate the district
court's denial of the plaintiff's motion for judgment as a matter of law
and remand to the district court for further proceedings in accordance
with this opinion.
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The disposition of the case should read:
AFFIRMED in part, VACATED in part, and REMANDED.
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