           Case: 12-12182   Date Filed: 06/17/2014   Page: 1 of 11


                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                      __________________________

                             No. 12-12182
                      __________________________

                   D.C. Docket No. 1:08-cv-00155-KD-N

EARATON ADAMS,
MYRON BARNES,
JERMEL MATTHEWS,
JERMAINE ROBERSON,
CHARLES L. STILLS, III,
BEVERLY THOMAS,
GEORGE WELLS,
CARLOS JOHNSON,
                                                          Plaintiffs-Appellants,

ROBERT ADAMS, et al.,
                                                                     Plaintiffs,

versus

AUSTAL, U.S.A., L.L.C.,

                                                           Defendant-Appellee.
                      __________________________

                Appeals from the United States District Court
                   for the Southern District of Alabama
                     __________________________
                              (June 17, 2014)
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Before PRYOR and COX, Circuit Judges, and ROSENTHAL, * District Judge.

PER CURIAM:

       Twenty-three current and past employees filed suit against Austal USA,

LLC (“Austal”) alleging—among other claims—that Austal discriminated against

them in violation of Title VII by creating a racially hostile work environment.

After extensive proceedings in the district court, 1 including three trials, this case

has come before us in four different appeals, two of which are contemporaneous

with this appeal. 2 This appeal involves eight plaintiffs who appeal the verdicts in

favor of Austal from the second and third trials. The Plaintiffs raise a litany of

alleged errors. After careful consideration, and with the benefit of oral argument,

we affirm.

                                      I. Issues Presented

       The Plaintiffs present six issues for review. First, the Plaintiffs contend the

district court erred by limiting the amount of “me too” evidence they could present

in their case in chief. Second, they contend that the district court erred in denying

their motions for a new trial and judgment as a matter of law because the jury



       *
         Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
       1
         For a more extensive description of the case, see Adams et al. v. Austal USA L.L.C., No.
12-11507, __ F.3d ___ (11th Cir. June 17, 2014).
       2
         See Appendix I, infra for a complete chart of the various appeals arising out of this case.
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verdicts were against the great weight of the evidence. Third, they contend that the

district court erred by allowing Austal to present a Faragher defense. Fourth, they

contend that the district court erred by rejecting the Plaintiffs’ Batson challenge in

Jury Trial Three. Fifth, they contend that the district court erred by allowing

Austal to present the Johnson Recording as evidence. Sixth, they contend that the

district court erred by denying the Plaintiffs’ motion for a mistrial.

                               II. Standards of Review

      This case implicates two standards of review. The district court’s rulings on

the evidence, new trial, Faragher defense waiver, and mistrial motions are

reviewed for an abuse of discretion. Lamonica v. Safe Hurricane Shutters, Inc.,

711 F.3d 1299, 1312 (11th Cir. 2013) (reviewing ruling motion for a new trial for

an abuse of discretion); United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir.

2012) (reviewing evidentiary rulings for an abuse of discretion); Proctor v. Fluor

Enters., Inc., 494 F.3d 1337, 1355 (11th Cir. 2007) (reviewing ruling on waiver of

an affirmative defense for an abuse of discretion); Frederick v. Kirby Tankships,

Inc., 205 F.3d 1277, 1286 (11th Cir. 2000) (reviewing ruling on motion for a

mistrial for an abuse of discretion). The district court’s ruling on the Plaintiffs’

Batson challenge is reviewed for clear error. United States v. Houston, 456 F.3d

1328, 1334 (11th Cir. 2006).


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                                    III. Discussion

A. The district court properly limited “me too” evidence.

      The Plaintiffs contend that the district court erred by precluding the

admission of “me too” evidence in their case-in-chief. We have considered a

substantially similar argument in a related opinion in this case. See Adams, et al. v.

Austal USA, L.L.C., No. 12-11507, ___ F.3d ___, Part III.B.1.a (11th Cir. June 17,

2014). For the reasons expressed in our opinion in that case, we find no error ,

much less an abuse of discretion, in the district court’s order.

B. The jury verdicts were not against the great weight of the evidence.

      The Plaintiffs contend that the district court erred by denying the Plaintiffs’

motions for a new trial in Jury Trial Two and Jury Trial Three on the basis that the

jury verdicts were against the great weight of the evidence. Austal responds that

the verdicts were amply supported because of the evidence Austal presented at trial

and the Plaintiffs’ lack of credibility.

      “We review a district court’s denial of a motion for a new trial for an abuse

of discretion.” Lamonica, 711 F.3d at 1312. New trials will not be granted on

evidentiary grounds unless “the verdict is against the great—not merely the

greater—weight of the evidence.”           Id. at 1312–13 (citations omitted).   This

standard requires a movant to show not only that some evidence opposes the

verdict, but that the evidence against the verdict greatly outweighs evidence
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supporting the verdict. Thus, in order to properly state this claim, a movant must

analyze both evidence supporting and opposing the verdict to show that the great

weight of the evidence is against the verdict.

      On this appeal, the Plaintiffs make the conclusory allegation that “the jury’s

verdict as to the plaintiffs’ claims was against the great weight of the evidence,”

but the Plaintiffs fail to analyze the evidence that was presented supporting the

juries’ verdicts. Notably, the Plaintiffs argument fails to analyze either Austal’s

Faragher defense or the impeachment evidence Austal presented at trial. And, the

Plaintiffs fail to properly discuss the evidence opposing the verdict. The majority

of the Plaintiffs’ argument fails to cite to the record—in direct violation of Federal

Rules of Appellate Procedure 28(a)(9)(A) and Eleventh Circuit Rule 28-1(I).

Instead, the Plaintiffs cite as authority their own statement of the facts. We have

previously warned litigants that “failure to comply with Rule 28(a)(9)(A) of the

Federal Rules of Appellate Procedure may result in waiver or abandonment of

issues on appeal.” See Mendoza v. U.S. Attorney Gen., 327 F.3d 1283, 1286 n.4

(11th Cir. 2003) (citing Flanigan’s Enters., Inc. of Ga. v. Fulton Cnty., Ga., 242

F.3d 976, 987 n.16 (11th Cir. 2001)).




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       Accordingly, the Plaintiffs’ violation of Rule 28(a)(9)(A) has waived this

argument. Even assuming arguendo that the argument had not been waived, we

find no merit in the Plaintiffs’ argument.

C. The District Court properly decided that the Faragher defense was not
waived.

       The Plaintiffs contend that Austal waived its Faragher defense by failing to

assert the defense in its answer to the complaint.                     We have considered a

substantially similar argument in a related opinion in this case. See Adams et al. v.

Austal USA L.L.C., No. 12-11507, ___ F.3d ___, Part III.B.1.b (11th Cir. June 17,

2014). For the reasons expressed in that opinion, we find no error in the district

court’s order.

D. The district court did not clearly err by rejecting the Plaintiffs’ Batson
challenge.

       The Plaintiffs 3 contend that Austal failed to provide a race-neutral reason for

any of its three jury strikes against African Americans in Jury Trial Three. Austal

responds that it provided legitimate, race-neutral reasons for each jury strike.

       We review the district court’s decision denying a Batson challenge for clear

error. Houston, 456 F.3d at 1334. Under the Batson burden-shifting framework,



       3
         While all Plaintiffs appeal on this issue, the Plaintiffs’ brief specifically challenges only
the “7 Plaintiff trial,” which is Jury Trial Three. Accordingly, Plaintiff Beverly Thomas, who
was a party in Jury Trial Two, does not have standing to appeal on this issue.
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“[f]irst, the [challenger] must establish a prima facie case to raise the inference of

discriminatory intent. Once the prima facie case is established, the [striking party]

may rebut the inference by articulating legitimate, race-neutral reasons for its

exercise of its peremptory strikes.     After the [striking party] articulates such

reasons, the court must evaluate the credibility of the stated justifications based on

the evidence placed before it.” Houston, 456 F.3d at 1335.

      After the district court found that the Plaintiffs had made a prima facie case

suggesting discriminatory intent, Austal provided multiple race-neutral reasons for

striking the jurors. First, Austal explained that Juror 29 was struck because Juror

29: (1) was friends with Plaintiff Carolyn Slay on Facebook; (2) was a convicted

felon and refused to discuss the nature of his crime; (3) concealed information

about his employment; (4) was a defendant in child support matters which Austal

believed showed irresponsibility; and (5) worked on a dock similar to the

employment of the Plaintiffs. Second, Austal struck Juror 33 because he: (1) was a

retired pipefitter similar to the employment of the Plaintiffs; (2) was sued by

Alabama for overpayment of unemployment benefits which Austal thought

weakened its impeachment evidence; and (3) did not disclose collection actions

against him. Third, Austal struck juror 41 because: (1) she thought the employer

was obligated to guarantee a discrimination and harassment-free workplace; (2) her


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brother was convicted of murder, which Austal thought weakened its impeachment

evidence; (3) her sister had drug problems, which Austal thought weakened its

impeachment evidence; and (4) she received welfare showing that she accepted

government entitlements.

      Accordingly, the Plaintiffs’ argument that Austal failed to provide any race-

neutral justifications for its preemptory challenges is meritless. The district court

did not clearly err in rejecting the Plaintiffs’ Batson challenges.

E. The district court did not err by admitting the Johnson Recording into
evidence.

      The Plaintiffs contend that the district court erred by admitting the Johnson

Recording into evidence since it is substantially more prejudicial than probative.

Austal responds that this objection has been waived.

      “We review the district court’s evidentiary rulings for an abuse of

discretion.” Dortch, 696 F.3d at 1110. A Rule 403 objection is only preserved if it

is timely and provides the specific grounds for objection. Wilson v. Attaway, 757

F.2d 1227, 1242 (11th Cir. 1985).         While the Plaintiffs argued the Johnson

Recording required a mistrial, they never argued that the recording was

inadmissible nor that it was substantially more unfairly prejudicial than probative.

This general allegation of some problem with the proffered evidence is insufficient

to preserve a Rule 403 challenge.

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       Accordingly, the Plaintiffs have waived review of this issue by failing to

timely make a specific objection.

F. The district court did not err by denying the Plaintiffs’ motion for a
mistrial.

       The Plaintiffs contend that the district court should have granted their

motion for a mistrial because the district court admitted evidence allegedly

procured by an ethical violation and because Austal’s attorneys allegedly violated

the district court’s orders. 4 Austal responds that its counsel did not violate any

ethics rules or district court orders.

       “We review a district court’s decision on a motion for mistrial for abuse of

discretion.” Frederick, 205 F.3d at 1285. In the Eleventh Circuit, “[a] state rule of

professional conduct cannot provide an adequate basis for a federal court to

suppress evidence that is otherwise admissible.” United States v. Lowery, 166 F.3d

1119, 1124 (11th Cir. 1999).

       Since the alleged violation of a state rule of professional conduct cannot

provide an adequate basis for suppressing evidence, the district court’s decision to

allow the Johnson Recording cannot merit a mistrial. Additionally, after reviewing




       4
          We feel obligated to note that no evidence in the record suggests that Austal violated
any ethics rules. And, the Alabama State Bar dismissed all ethics complaints made by the
Plaintiffs’ attorneys.
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the record we find no evidence that Austal’s attorneys failed to comply with the

district court’s orders.

       Accordingly, the district court did not err by denying the Plaintiffs’ motion

for a mistrial.

                                  VI. Conclusion

       We find no merit to the Plaintiffs’ contentions. Accordingly, we affirm.

       AFFIRMED.




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    Appendix I

                                                                                   Fees
                                                                   Merits Case
      Plaintiff          Procedural Posture            Trial                     Case on
                                                                   on Appeal
                                                                                  Appeal
1. Earton Adams        The district court denied    Trial 1 & 3      12-12182    12-11983
2. Myron Barnes            Austal’s summary         Trial 1 & 3      12-12182    12-11983
3. Carlos Johnson      judgment motion. These       Trial 1 & 3      12-12182    12-11983
4. Beverly Thomas        plaintiffs went to three     Trial 2        12-12182    12-11983
5. Charles Stills          different trials and       Trial 3        12-12182    12-11983
                          received verdicts for
6. Jermain Roberson    Austal. They moved for         Trial 3        12-12182    12-11983
7. George Wells         judgment as a matter of       Trial 3        12-12182    12-11983
8. Jermel Matthews      law or a new trial. The       Trial 3        12-12182    12-11983
9. Frederick Carter       motions were denied.        Trial 1        12-11507    12-11983
10. Sidney Hedgeman           They appeal.            Trial 1        12-11507    12-11983
11. Robert Adams                                       N/A           12-11507    12-11983
12. Nelson Bumpers                                     N/A           12-11507    12-11983
13. Alvin
                                                        N/A          12-11507    12-11983
Cunningham
14. Tesha Hollis                                        N/A          12-11507    12-11983
15. Ron Law            The district court granted       N/A          12-11507    12-11983
16. Jerome Pettibone       Austal’s summary             N/A          12-11507    12-11983
17. Rahman Pratt        judgment motion on all          N/A          12-11507    12-11983
18. Nathaniel Reed     claims. These plaintiffs         N/A          12-11507    12-11983
19. Carolyn Slay                appeal.                 N/A          12-11507    12-11983
20. Franklin Thomas                                     N/A          12-11507    12-11983
21. Frederick
                                                        N/A          12-11507    12-11983
Williams
22. Larry Laffiette                                     N/A          12-11507    12-11983
23. Gloria Sullivan                                     N/A          12-11507    12-11722




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