               Case: 18-14371    Date Filed: 05/07/2019   Page: 1 of 10


                                                           [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 18-14371
                              Non-Argument Calendar
                            ________________________

                         D.C. Docket No. 1:14-cv-21244-JG


JASZMANN ESPINOZA,
SELETA STANTON,
TIFFANY THOMPSON,
DOUGANNA BALLARD,
JANICE BAILEY,
and all persons similarly situated,

                                                           Plaintiffs - Appellees,



SHANICE BAIN,

                                                           Plaintiff,



      versus

GALARDI SOUTH ENTERPRISES, INC., et al.,

                                                           Defendants,
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TERI GALARDI,
individually,

                                                           Defendant-Appellant.


                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                   (May 7, 2019)



Before BRANCH, EDMONDSON, and JULIE CARNES, Circuit Judges.



PER CURIAM:



      Teri Galardi appeals the district court’s entry of a final money judgment in

favor of Shanice Bain, Netonia Bell, Janice Dennis, Jaszmann Espinoza, Ronika

Jones, Queen Lewis, Stevontrae McDowell, Kiara Scott, and Seleta Stanton

(“Plaintiffs”). The district court entered judgment following a jury trial on

Plaintiffs’ claims for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et

seq. (“FLSA”). No reversible error has been shown; we affirm. We also grant

Plaintiffs’ motion for damages and costs (filed pursuant to Fed. R. App. P. 38) and



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remand to the district court for a determination of costs and reasonable attorneys’

fees incurred on appeal.



Background



      Galardi was the controlling shareholder and president of Fly Low, Inc. (“Fly

Low”), an entity that owned and managed the King of Diamonds dance club.

Plaintiffs -- dancers at the King of Diamonds -- filed this civil action against

several defendants, including Galardi and Fly Low. Plaintiffs asserted claims for

minimum wage and overtime violations under the FLSA.

      Galardi filed a partial motion for summary judgment, arguing that she was

no “employer” within the meaning of the FLSA. The district court denied

Galardi’s motion, determining that genuine disputes of material fact existed about

whether -- based on Galardi’s involvement with the King of Diamonds -- Galardi

qualified as Plaintiffs’ “employer.”

      The case proceeded to a seven-day jury trial. The jury returned a verdict in

favor of Plaintiffs and, through special interrogatories, calculated damages owed to

each Plaintiff. Consistent with the jury’s verdict, the district court entered a final




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money judgment assessing damages against Galardi and Fly Low, jointly and

severally.



Galardi’s Appeal



      On appeal, Galardi challenges (1) the district court’s denial of Galardi’s

motion for partial summary judgment, (2) the sufficiency of the evidence

supporting the jury’s finding that Galardi was Plaintiffs’ “employer” under the

FLSA, and (3) the district court’s evidentiary rulings.

      As an initial matter, we will not consider Galardi’s challenge to the district

court’s denial of her motion for partial summary judgment. See Ortiz v. Jordan,

562 U.S. 180, 183-84 (2011) (a party may not “appeal an order denying summary

judgment after a full trial on the merits”); Lind v. United Parcel Serv., Inc., 254

F.3d 1281, 1286 (11th Cir. 2001) (“this Court will not review the pretrial denial of

a motion for summary judgment after a full trial and judgment on the merits.”).

      Nor will we review Galardi’s sufficiency-of-the-evidence argument. A party

may not challenge the sufficiency of evidence on appeal when that party has failed

to file motions for judgment as a matter of law under Fed. R. Civ. P. 50(a) and

50(b) and failed to file a motion for a new trial under Rule 59. See Rosenberg v.

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DVI Receivables XIV, LLC, 818 F.3d 1283, 1292 (11th Cir. 2016) (citing

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006)). Because

Galardi filed in the district court no motions for judgment as a matter of law or for

a new trial, she is barred from challenging the sufficiency of the evidence on

appeal. See id.

      We now address Galardi’s challenge to the district court’s evidentiary

rulings. On appeal, Galardi contends that the district court abused its discretion by

permitting each Plaintiff to testify about her damages by “literally” “reading from”

a document that was not admitted into evidence. As a result of the alleged error,

Galardi contends the final money judgment should be vacated and the case

remanded to the district court for a new trial.

      We review for abuse-of-discretion the district court’s evidentiary rulings.

Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1304 (11th Cir. 2016). Under this

standard, we will affirm “unless the district court has made a clear error of

judgment or has applied an incorrect legal standard” and the error “affects the

substantial rights of the parties.” Id. When a party fails to make a timely objection

and, instead, raises an objection for the first time on appeal, we review only for

plain error. See Fed. R. Evid. 103(e); S.E.C. v. Diversified Corp. Consulting Grp.,

378 F.3d 1219, 1227 n.14 (11th Cir. 2004). Under plain error review, we will

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reverse only if an error occurred, the error was plain, the error affected substantial

rights and, if left uncorrected, the error would seriously affect the fairness of the

judicial proceedings. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329

(11th Cir. 1999).

      The Federal Rules of Evidence permit a witness to use a writing to refresh

his memory for the purpose of testifying. Fed. R. Evid. 612. The “principal

requirements” for permitting a witness to use a document to refresh his recollection

are “that the witness demonstrated a need for having his memory refreshed and that

the paper used had that effect.” Thompson v. United States, 342 F.2d 137, 139

(5th Cir. 1965).

      During the trial, each Plaintiff testified about the number of weeks she

worked at the King of Diamonds, the number of hours worked per week, the

number of shifts worked, and about the amount of “house fees” she was required to

pay each shift. Each Plaintiff also referred to a damages calculation summary --

prepared by each Plaintiff before trial -- to testify about the amount of minimum

wage damages she sought (the total hours worked multiplied by the minimum

wage ($7.25)) and the amount of overtime damages sought (the number of hours

worked per week in excess of 40 hours multiplied by half the minimum wage

($3.62)). Each Plaintiff also referred to her damages calculation summary to

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testify about her kickback damages: the number of shifts worked multiplied by the

amount of mandatory house fees paid per shift.

       Galardi objected to the use of the damages calculation summaries because

the documents had not been admitted into evidence. * The district court overruled

Galardi’s objections, determining that the documents were being used to refresh

the witnesses’ recollection: not being read into the record.

       We conclude that the district court abused no discretion -- and committed no

plain error -- by allowing each Plaintiff to use a damages calculation summary to

refresh her memory about the specific dollar amount of minimum wage, overtime,

and kickback damages sought. The district court supervised the use of the

damages calculation summaries and was able to observe each Plaintiff’s testimony

and demeanor on the stand. Each Plaintiff testified from her own memory about

the number of weeks, hours, and shifts worked; and Galardi cross-examined

extensively each Plaintiff about the accuracy of her recollection. The damages

calculation summaries were used to refresh each witness’s recollection about the

mathematical calculation of damages. Nothing in this record evidences that




*
  We note that Galardi raised this objection during the testimony of only two of the nine
plaintiffs (Plaintiffs Espinoza and McDowell). To the extent that Galardi now challenges the use
of the damages calculation summaries during the testimony of the remaining Plaintiffs, we
review that argument only for plain error.
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Plaintiffs were merely reading from the summaries rather than testifying based on

her own personal knowledge.



Plaintiffs’ Rule 38 Motion



      Plaintiffs have filed a motion for damages and costs, pursuant to Fed. R.

App. P. 38, against Galardi and Galardi’s lawyer for pursuing a frivolous appeal.

Rule 38 provides that, “[i]f a court of appeals determines that an appeal is

frivolous, it may, after a separately filed motion or notice from the court and

reasonable opportunity to respond, award just damages and single or double costs

to the appellee.” An award of damages and costs under Rule 38 is appropriate

against an appellant who raises “clearly frivolous claims in the face of established

law and clear facts.” Parker v. Am. Traffic Solutions, Inc., 835 F.3d 1363, 1371

(11th Cir. 2016). “[A] claim is clearly frivolous if it is ‘utterly devoid of merit.’”

Id.

      We have already determined that Galardi’s first two arguments on appeal are

foreclosed plainly by established binding precedent; those arguments are clearly

frivolous. We also conclude that Galardi’s challenge to the district court’s

evidentiary rulings -- an argument that is conclusory and wholly unsupported by

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the record -- is also utterly devoid of merit. In her appellate brief, Galardi

identifies no specific language from the witness testimony about damages that

would support her claim that the witnesses read “literally” from the damages

calculation summaries. Galardi also fails to address -- at all -- the district court’s

determination that the documents were being used to refresh the witnesses’

recollection. Nor does Galardi argue that the alleged errors affected her substantial

rights: a necessary element to justify a vacatur of the final money judgment. See

Furcron, 843 F.3d at 1304 (abuse-of-discretion); Farley, 197 F.3d at 1329 (plain

error).

          Because Galardi’s appellate arguments are entirely without merit -- and

because Galardi’s lawyer failed to bring to this Court’s attention binding precedent

that forecloses plainly two of Galardi’s arguments and failed to brief adequately

Galardi’s remaining argument -- we award to Plaintiffs double costs and

reasonable attorneys’ fees incurred as a result of having to defend this appeal, to be

assessed against Galardi and her lawyer, jointly and severally. See Pelletier v.

Zweifel, 921 F.2d 1465, 1523 (11th Cir. 1991) (awarding Rule 38 damages jointly

and severally against a lawyer and his client when the lawyer pursued claims on

appeal without notifying the Court of a state court decision that foreclosed his

client’s appellate arguments).

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      The district court’s final money judgment is AFFIRMED, and the case is

REMANDED to the district court to determine costs and reasonable attorneys’ fees

incurred in this appeal.

      AFFIRMED and REMANDED.




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