          Case: 14-14620   Date Filed: 04/08/2016    Page: 1 of 21


                                                                       [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 14-14620
                      ________________________

                  D.C. Docket No. 1:12-cv-22275-PAS



MAURY ROSENBERG,

                                               Plaintiff - Appellant
                                               Cross Appellee,

versus

DVI RECEIVABLES XIV, LLC,
DVI RECEIVABLES XVI, LLC,
DVI RECEIVABLES XVII, LLC,
DVI RECEIVABLES XVIII, LLC,
DVI RECEIVABLES XIX, LLC,
DVI FUNDING, LLC
U.S. BANK, NA.A. et al.,

                                         Defendants - Appellees
                                         Cross Appellants.
                      ________________________

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

                             (April 8, 2016)
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Before MARCUS, JILL PRYOR and FAY, Circuit Judges.

MARCUS, Circuit Judge:

      At issue today is whether a federal district court is obliged to follow the

Federal Rules of Civil Procedure or the Federal Rules of Bankruptcy Procedure

when trying a bankruptcy case arising under title 11 of the United States Code. In

entertaining the defendants’ Fed. R. Civ. P. 50(b) motion for judgment as a matter

of law after a jury trial, the district court applied the filing deadline found in the

Federal Civil Rules (no later than 28 days after the entry of judgment) and thus

found the motion timely. We disagree and hold that when trying a case arising

under title 11, a district court (just like a bankruptcy court) must apply the filing

deadline found in the Federal Rules of Bankruptcy Procedure when addressing a

Rule 50(b) motion. Because, under the Federal Bankruptcy Rules, the defendants’

Rule 50(b) post-trial motion was untimely -- Fed. R. Bankr. P. 9015(c) requires

that such motions be filed no later than 14 days after entry of judgment -- we

vacate the district court’s order granting the defendants relief and remand with

instructions to reinstate the jury’s award.




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                                              I.

       This case comes before us with a complex factual and procedural history. 1

The essential facts are these. In November 2008, Jane Fox -- on behalf of several

companies (“the DVI Entities”) that had entered into equipment leases with Maury

Rosenberg in connection with his chain of medical imaging centers -- filed an

involuntary Chapter 7 bankruptcy petition against Rosenberg, asserting a claim

based on an individual limited guaranty Rosenberg had made in connection with

the leases. The petition was originally filed in the United States Bankruptcy Court

for the Eastern District of Pennsylvania, but was later transferred to the Bankruptcy

Court for the Southern District of Florida. In August 2009, the bankruptcy court

granted Rosenberg’s motion to dismiss the petition because the DVI Entities were

not eligible creditors and, alternatively, because they were judicially estopped from

prosecuting the case. Although it dismissed the petition with prejudice, the

bankruptcy court retained jurisdiction to award Rosenberg his costs, reasonable

attorney’s fees, and damages (if appropriate) under 11 U.S.C. § 303(i).

       In December 2010, Rosenberg filed an adversary complaint against the

defendants under 11 U.S.C. § 303(i). Section 303(i) acts to discourage creditors

from improperly filing involuntary petitions by providing:



       1
        A full recitation of the factual background surrounding this case may be found in In re
Rosenberg, 779 F.3d 1254 (11th Cir. 2015).
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             If the court dismisses a petition under this section other
             than on consent of all petitioners and the debtor, and if
             the debtor does not waive the right to judgment under
             this subsection, the court may grant judgment—

                   (1) against the petitioners and in favor of the
                   debtor for—
                         (A) costs; or
                         (B) a reasonable attorney’s fee; or

                   (2) against any petitioner that filed the petition in
                   bad faith, for—
                         (A) any damages proximately caused by
                         such filing; or
                         (B) punitive damages.

11 U.S.C. § 303(i). Specifically, Rosenberg sought: (1) attorney’s fees and costs

incurred while defending the involuntary petition; (2) compensatory and punitive

damages caused by filing the petition in bad faith; and (3) attorney’s fees and costs

incurred while prosecuting the adversary proceeding itself.

      In March 2012, Rosenberg demanded a jury trial on all triable issues in his

adversary proceeding. The defendants did not consent to a jury trial in the

bankruptcy court, but, instead, moved the district court to withdraw the reference

of the adversary proceeding so that the matter could be tried in district court. The

district court granted the motion, withdrew the reference of the claims for damages

under § 303(i)(2) because they were analogous to common-law claims for

malicious prosecution, and tried the case to a jury. Meanwhile, Rosenberg’s

claims for attorney’s fees and costs remained in the bankruptcy court. After trial in


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the district court, the jury found that the defendants acted in bad faith when they

filed the involuntary petition and awarded Rosenberg $1,120,000 in compensatory

damages (for emotional distress, loss of reputation, and loss of wages) and

$5,000,000 in punitive damages. The district court entered a “final judgment” on

its docket on March 14, 2013.

      The defendants then moved for judgment as a matter of law under Fed. R.

Civ. P. 50(b) 28 days later. Although the motion had been timely filed under Fed.

R. Civ. P. 50(b), which allows parties 28 days to file a motion, Rosenberg moved

to strike the motion as untimely because it fell outside the time limit provided for

filing a Rule 50(b) motion under Fed. R. Bankr. P. 9015(c), which, in turn, requires

that such motions be filed no later than 14 days after the entry of judgment. The

district court concluded that the Federal Civil Rules applied and that the Rule 50(b)

motion had been filed timely; therefore, it denied the motion to strike.

      Turning to the merits, the district court granted the Rule 50(b) motion,

concluding that while the evidence supported a finding of bad faith and emotional

damages, it did not sustain the verdict for punitive damages or compensatory

damages for loss of reputation and loss of wages. Accordingly, the district judge

entered an amended final judgment holding the defendants liable only for $360,000

in compensatory damages for emotional distress.




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      Rosenberg appealed, arguing that the defendants’ Rule 50(b) motion was

filed untimely and, therefore, the merits of the claim should not have been

considered at all. Moreover, Rosenberg claims that even if the motion had been

properly considered, the district court erred in its application of Rule 50(b). The

defendants, in turn, cross-appealed, claiming that the district court also should have

overturned the jury’s finding of liability for bad faith, and a damages award for

emotional distress was improper because of our ruling in Lodge v. Kondaur Capital

Corp., 750 F.3d 1263 (11th Cir. 2014).


                                          II.

      The central issue in this case is whether the defendants timely filed a Rule

50(b) motion for judgment as a matter of law. This requires us to decide whether

the Federal Rules of Civil Procedure or the Federal Rules of Bankruptcy Procedure

apply to the timeliness of perfecting a Rule 50(b) motion filed in a district court

trying a bankruptcy case arising under title 11. We review de novo the district

court’s conclusion that the deadline in the Federal Civil Rules applies. In re

Mouzon Enters., Inc., 610 F.3d 1329, 1332 (11th Cir. 2010); Mega Life & Health

Ins. Co. v. Pieniozek, 585 F.3d 1399, 1403 (11th Cir. 2009).

      Under the Federal Civil Rules, a party must file its post-trial motion “[n]o

later than 28 days after the entry of judgment.” Fed. R. Civ. P. 50(b). But under

the Federal Bankruptcy Rules, “any renewed motion for judgment or request for a

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new trial shall be filed no later than 14 days after the entry of judgment.” Fed. R.

Bankr. P. 9015(c).2 Here, final judgment following the jury trial was entered by

the district court on March 14, 2013. The defendants filed their renewed motion

for judgment as a matter of law on April 11, 2013. Thus, 28 days passed between

the entry of judgment and the filing of the motion. This filing would be timely

under Rule 50(b), but would be 14 days delinquent under the Federal Bankruptcy

Rules. Because the district court was required to apply the Federal Bankruptcy

Rules and the deadline set forth in Fed. R. Bank. P. 9015(c), the defendants’

motion was not timely and, therefore, should have been denied.

       It is, by now, axiomatic that in interpreting the federal rules, we look first to

their plain language. See In re Yates Dev., Inc., 256 F.3d 1285, 1288 (11th Cir.

2001) (citing Cmty. for Creative Non–Violence v. Reid, 490 U.S. 730, 739

(1989)). The plain language of the federal rules -- of bankruptcy and civil

procedure -- requires application of the Federal Bankruptcy Rules in this case.

Fed. R. Bankr. P. 1001 unambiguously provides that, “[t]he Bankruptcy Rules and

Forms govern procedure in cases under title 11 of the United States Code. . . .

These rules shall be construed to secure the just, speedy, and inexpensive

determination of every case and proceeding.” Rule 1001 was amended in 1987 for


       2
           The full text of the rule provides: “Rule 50 F. R. Civ. P. applies in cases and
proceedings, except that any renewed motion for judgment or request for a new trial shall be
filed no later than 14 days after the entry of judgment.” Fed. R. Bankr. P. 9015(c).
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the specific purpose of expanding the reach of the rules beyond the bankruptcy

courts to all courts hearing bankruptcy matters. Thus, the advisory committee

notes to the rule read, “This amended Bankruptcy Rule 1001 makes the

Bankruptcy Rules applicable to cases and proceedings under title 11, whether

before the district judges or the bankruptcy judges of the district.” Fed. R. Bankr.

P. 1001 advisory committee’s note to 1987 amendments.

      There is no dispute that this case arises under title 11. Rosenberg asserted

claims under 11 U.S.C. § 303, and we think it is beyond debate that a case arises

under title 11 when it involves a cause of action created or determined by the

statutory provisions found in title 11. At no point in these proceedings has any

party disputed that the case arises under title 11; nor, indeed, have they offered any

reason why Rule 1001 would not apply.

      Moreover, the Federal Rules of Civil Procedure provide for the primacy of

the Federal Bankruptcy Rules in bankruptcy proceedings adjudicated in district

court. Fed. R. Civ. P. 81(a)(2) (“These rules apply to bankruptcy proceedings to

the extent provided by the Federal Rules of Bankruptcy Procedure.”); see also

Wright & Miller, Federal Practice & Procedure Civil § 1016 (3d ed.) (“[T]he

amended Bankruptcy Rules govern bankruptcy procedure, and the Civil Rules

apply only to the extent that they are incorporated in Parts I, V, VII, and IX of the

Bankruptcy Rules.”). Notably, Fed. R. Civ. P. 81 refers to “bankruptcy


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proceedings” instead of to “proceedings in a bankruptcy court.” This language

mirrors Fed. R. Bankr. P. 1001’s language applying the bankruptcy rules to cases

in both the bankruptcy and district courts. A plain reading of the rules means that

in bankruptcy proceedings, the Federal Bankruptcy Rules have primacy while the

Federal Civil Rules only apply to the extent they have been explicitly incorporated

by the Federal Bankruptcy Rules. This prioritization of the Federal Bankruptcy

Rules reflects the reasonable determination that bankruptcy cases ought to be tried

with a degree of uniformity, regardless of which court may have heard the matter.

A party to a bankruptcy proceeding should not be treated differently simply

because the forum in which the case is tried happens to be a district court and not a

bankruptcy court. Indeed, creating this kind of discrepancy would undermine the

very purpose of adopting standardized rules in the first place.

      Because the Federal Civil Rules only apply to bankruptcy proceedings to the

extent provided by the Federal Bankruptcy Rules, we are required to read Federal

Civil Rule 50 through the lens of the Federal Bankruptcy Rules. Fed. R. Bank. P.

9015(c) incorporates Fed. R. Civ. P. 50, with the explicit limitation that renewed

motions for judgment must be filed within 14 days of the entry of judgment. Thus,

when read in context, the rules provide that the deadline for filing a Rule 50(b)

motion for judgment as a matter of law in bankruptcy proceedings is 14 days after

the entry of judgment, not the 28 days that Rule 50 would ordinarily contemplate.


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      This reading of the Bankruptcy and Civil Rules yields a result consonant

with how many federal courts have addressed which set of rules to apply in similar

circumstances. Thus, for example, in cases arising under title 11 but tried in

district court, two of our sister circuits have applied the Federal Bankruptcy Rules

to determine whether service of process was sufficient. In re Celotex Corp., 124

F.3d 619, 630 (4th Cir. 1997); Diamond Mortg. Corp. v. Sugar, 913 F.2d 1233,

1243–44 (7th Cir. 1990). In both cases, the courts determined that parties serving

process in cases arising under title 11, but tried in district court, were permitted to

use the nationwide service of process provided by Fed. R. Bankr. P. 7004, even

though the Federal Civil Rules provide only for narrower means for serving

process. See id. These holdings are noteworthy because service of process -- and

the implications for personal jurisdiction that ensue -- speak to the power of a court

to exercise its authority over particular individuals. This is a fundamental aspect of

the courts’ authority and not something to be tinkered with lightly. It is surely

more significant than the deadline for renewing post-trial motions at issue in this

case. But even when adjudicating the means by which process is served, the

method of perfecting personal jurisdiction in a district court hearing a bankruptcy

case is governed by the Federal Bankruptcy Rules, not the Federal Civil Rules.

This too counsels in favor of applying the Federal Bankruptcy Rules to determine

the deadline for filing post-trial motions.


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      Also illuminating, we think, is the Third Circuit’s ruling in Phar-Mor, Inc. v.

Coopers & Lybrand, 22 F.3d 1228, 1238 (3d Cir. 1994), “that the Bankruptcy

Rules govern non-core, ‘related to’ proceedings before a district court.” Non-core

proceedings offer, perhaps, the most likely circumstance for applying the Federal

Civil Rules (and not the Federal Bankruptcy Rules) because these proceedings do

not arise directly under the substantive rules of title 11, and, therefore, may lie

outside the language of Fed. R. Bankr. P. 1001. But the Third Circuit still

concluded that these essentially collateral matters also fall within the purview of

the Federal Bankruptcy Rules when the case itself is a bankruptcy proceeding.

Here, the matter at hand is a core proceeding: the resolution of an adversary claim

brought under 11 U.S.C. § 303(i)(2).

      Finally, we take note of a district court opinion in VFB LLC v. Campbell

Soup Co., 336 B.R. 81 (D. Del. 2005), where the court was faced with a motion to

alter and amend its findings and judgment in a case arising under title 11 after

ruling against the plaintiffs who had alleged fraudulent transfer and breach of

fiduciary duty claims. The opinion hinged on how to count the days to determine

the timeliness of filing a motion for a new trial -- the Federal Civil Rules do not

count weekends or holidays in the 10-day deadline, while the Federal Bankruptcy

Rules do count those days. The court concluded that Fed. R. Bankr. P. 9006 took

precedence over Fed. R. Civ. P. 6 because the matter arose under title 11. Id. at


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83–85. While none of these cases speaks squarely to the issue presented in this

appeal, they provide guidance. They support the general idea that, in matters

arising under title 11, the district court is obliged to apply the Bankruptcy Rules.

      The defendants, however, cite to Stephenson v. Malloy, 700 F.3d 265, 270

n.5 (6th Cir. 2012), where the Sixth Circuit applied a 28-day filing deadline found

in the Federal Civil Rules and not the 14-day deadline found in the Federal

Bankruptcy Rules to a motion to alter or amend a judgment under Rule 59. There

is, however, no analysis of the issue offered in the court’s opinion. Indeed, there is

no indication that the parties urged or that the court even considered applying the

deadline found in the Federal Bankruptcy Rules instead of the timeline found in the

Federal Civil Rules, nor is there a holding on the matter. Rather, in Stephenson,

the court focused on the question of judicial estoppel. The case does not counsel in

favor of applying the Civil Rules to cases arising under title 11. See United States

v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (“The effect of the

omission was not there raised in briefs or argument nor discussed in the opinion of

the Court. Therefore, the case is not a binding precedent on this point.”); Webster

v. Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk in the record,

neither brought to the attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute precedents.”).




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      The defendants also cite three other cases in support of the view that a

district court trying a bankruptcy case arising under title 11 ought to apply Rule

50(b) to a motion for judgment notwithstanding the verdict. See In re Lemington

Home for the Aged, 777 F.3d 620 (3d Cir. 2015); In re Palermo, 549 F. App’x 38

(2d Cir. 2014); In re Prosser, 534 F. App’x 126 (3d Cir. 2013). These cases are

inapposite. Rosenberg is not arguing that Fed. R. Civ. P. 50(b) does not apply.

Rather, he urges only that, as set forth in Fed. R. Bankr. P. 9015(c), the Rule 50(b)

motion must be made within 14 days of the entry of final judgment, not 28 days.

See Fed. R. Bankr. P. 9015(c). None of these cases addresses this point at all.

      Notwithstanding the unambiguous language found in the rules, the district

court determined that the 28-day timeline found in Fed. R. Civ. P. 50(b) -- and not

the abbreviated timeline found in Fed. R. Bankr. P. 9015(c) -- should apply to

bankruptcy cases tried in the district court because the deadline provided in each

set of rules for filing a post-trial motion corresponds with the timeline for filing an

appeal in each forum. Compare Fed. R. App. P. 4(a)(1)(A) (setting 30-day

deadline for filing notice of appeal for civil cases), with Fed. R. Bankr. P. 8002(a)

(setting 14-day deadline for appeal of bankruptcy court decisions). Thus, because

the defendants here had 30 days to file an appeal, the district court found they

should have 28 days to file their post-trial motion. To be sure, the advisory

committee’s note to the 2009 amendment of Fed. R. Bankr. P. 9015 setting the 14-


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day deadline in that rule indicates that the reason for the shorter deadline for filing

a motion for judgment as a matter of law in bankruptcy proceedings is to

correspond with the shorter deadline for filing an appeal in bankruptcy cases. Fed.

R. Bankr. P. 9015 advisory committee’s note to 2009 amendments. The

defendants argue that applying Fed. R. Bankr. P. 9015 would create a conflict with

the Federal Rules of Appellate Procedure. But there is no conflict. It is perfectly

compatible to require that a Rule 50(b) motion for judgment as a matter of law be

filed within 14 days of the entry of judgment and require that an appeal from

judgment be filed within 30 days. There is no actual conflict and no reason to

disregard the plain meaning of the rules.

      The defendants also suggest that Fed. R. App. P. 6(a) is inconsistent with

Rosenberg’s reading of Federal Bankruptcy Rules 1001 and 9015 because Fed. R.

App. P. 6(a) requires that bankruptcy cases be treated as civil cases on appeal.

Thus, the rule provides:

             An appeal to a court of appeals from a final judgment,
             order, or decree of a district court exercising jurisdiction
             under 28 U.S.C. § 1334 [granting district courts
             jurisdiction over bankruptcy cases] is taken as any other
             civil appeal under these rules.

Fed. R. App. P. 6(a). But this has no bearing on the timeliness for filing a Rule

50(b) motion in a bankruptcy case that was tried in district court. The rule simply

means that an appellate court will treat an appeal taken from a district court order


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deciding a bankruptcy case the same way it would treat an appeal taken from a

district court order deciding a case based on some other subject matter.

      Nor do we see any force in the argument that application of Fed. R. Bankr.

P. 9015(c) would prevent a district court from ruling on a matter it is best-

positioned to decide. Nothing about setting a 14-day timeframe for filing a Rule

50(b) motion (any more than application of a 28-day deadline) would prevent “the

just, speedy, and inexpensive determination of every case and proceeding.” Fed.

R. Bankr. P. 1001. The application of a 14-day window does not create an overly

onerous obligation on parties proceeding in district court any more than it does in

bankruptcy court. While it is true that application of the rule in this case will

prevent the district court from ruling on the merits of the defendants’ Rule 50(b)

motion, the same could be said any time a party files a motion outside of the

timeframe supplied by a rule of procedure. But as we see it, it is the consistent

application of these deadlines -- not their ad hoc abandonment -- that actually

promotes the “just, speedy, and inexpensive determination” of cases.

      The defendants also argue, in the alternative, that even under the shortened

Fed. R. Bankr. P. 9015(c) timeline for filing a Rule 50(b) motion, their motion

should be considered to have been timely filed. They say that the matter was not

final until the bankruptcy court ruled on the question of attorney’s fees under 11

U.S.C. § 303(i)(1) because the time period to file a Rule 50(b) motion runs from


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the date when all of the claims in a case have been finally adjudicated. Thus, the

argument goes, the time did not begin to run on filing a Rule 50(b) motion until the

bankruptcy court actually entered final judgment on Rosenberg’s § 303(i)(1)

claims for attorney’s fees on April 11, 2013. We remain unpersuaded.

      When the district court withdrew its reference to the § 303(i)(2) adversary

proceeding claims but left the § 303(i)(1) claims regarding attorneys’ fees with the

bankruptcy court, it created two separate claims operating on their own timelines in

separate fora. The matters were tried by different judges sitting on different courts

and operating on different timetables set according to the demands of separate

dockets. Requiring that the two cases be deemed as one case from which no

appeal (or Rule 50(b) motion) could be taken until both were decided makes little

sense to us. Indeed, we have already vindicated the logic of treating the two

matters separately by treating the two determinations as meriting separate appeals

instead of attempting to consolidate them or forcing the parties to raise them

together. See In re Rosenberg, 779 F.3d 1254 (11th Cir. 2015).

      Nor does the suggestion that the ruling has never become final withstand

analysis. The defendants claim that, even if we are to assume that the Federal

Bankruptcy Rules apply, Fed. R. Bankr. P. 9015(c) requires that a “renewed

motion for judgment or request for a new trial shall be filed no later than 14 days

after the entry of judgment.” Fed. R. Bankr. P. 9015(c). Then, Fed. R. Bankr. P.


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9021 provides that “[a] judgment or order is effective when entered under Rule

5003.” Fed. R. Bankr. P. 9021. Rule 5003, in turn, states that “[t]he clerk shall

keep a docket in each case under the Code and shall enter thereon each judgment,

order, and activity in that case as prescribed by the Director of the Administrative

Office of the United States Courts. The entry of a judgment or order in a docket

shall show the date the entry is made.” Fed. R. Bankr. P. 5003(a). Finally, Fed. R.

Bankr. P. 9001 defines “clerk” as the “bankruptcy clerk, if one has been appointed,

otherwise clerk of the district court.” Fed. R. Bankr. P. 9001(3). Stringing these

Federal Bankruptcy Rules together, the defendants argue, the time to file a

renewed motion for judgment in a bankruptcy case that is tried in the district court

begins only when a bankruptcy clerk enters the judgment on its docket. Because

the docket entry here was made by the clerk of the district court on the district

court’s docket -- and not by the bankruptcy clerk on the bankruptcy court docket --

the defendants say that the judgment has not been entered and, indeed, would never

be entered until the bankruptcy clerk made an entry on its docket about a case

heard in district court. Thus, the defendants argue, the 14-day period set by Fed.

R. Bankr. P. 9015(c) has still not begun to run.

      Again, we are unpersuaded. The defendants’ reasoning leads to an absurd

result, which we decline to endorse. See In re Lehman, 205 F.3d 1255, 1255–56

(11th Cir. 2000). It would require district courts exercising their unquestioned


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jurisdiction to hear bankruptcy cases under 28 U.S.C. § 1334(b) to file their

judgments with a clerk of an entirely separate court, entering judgment on a

completely separate docket from its own. Moreover, it would render this entire

appeal a nullity because, without the final entry of judgment (presumably by the

bankruptcy court), we would lack appellate jurisdiction, 28 U.S.C. § 1291, and the

defendants’ motion for post-judgment relief would arguably have been premature,

see Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1556–57 (11th Cir. 1988)

(noting that a post-verdict, pre-judgment Rule 50(b) motion may be premature).

Finally, there is absolutely no reason to require a district court to file its judgments

in cases arising under title 11 with the bankruptcy clerk. This is purely an

administrative matter that does not affect the rights or privileges of the parties in

any way.

      In short, both the plain language of the rules and the weight of authority

counsel for the application of the Bankruptcy Rules to bankruptcy proceedings

tried in district court. Because the defendants’ motion for judgment

notwithstanding the verdict was filed after the expiration of the deadline for filing

such motions provided by the Bankruptcy Rules, the defendants’ motion was

untimely and should have been denied.

      Because we conclude that the defendants’ Rule 50(b) motion was not timely

filed, we need not (and, indeed, cannot) address whether the motion was correctly


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decided by the district court on the merits. Similarly, we cannot consider the

defendants’ argument on cross-appeal that the damages award for emotional

distress runs afoul of our ruling in Lodge v. Kondaur Capital Corp., 750 F.3d 1263,

1271 (11th Cir. 2014). Regardless of how the defendants attempt to characterize

their claim, we think it is clear that they seek to challenge the sufficiency of the

evidence presented at trial. The defendants argued in their pre-verdict Rule 50(a)

motion that the emotional distress claim rested on insufficient evidence because

Rosenberg had not shown that the defendants’ conduct was the proximate cause of

that distress, had failed to present any medical or psychological expert testimony,

and had presented only self-serving and unsubstantiated evidence about his

emotional distress. But, notably, when the defendants filed their post-verdict Rule

50(b) motion for judgment as a matter of law, they made no mention of the

emotional distress claim. They did not argue that the evidence supporting

emotional distress was insufficient either because plaintiff had failed to establish

proximate cause, or because he failed to introduce any medical or expert

testimony, or because the evidence presented was insufficient to establish

emotional distress. Rather, the defendants only argued in their Rule 50(b) motion

that the jury lacked a legally sufficient evidentiary basis to find bad faith and

award punitive damages as well as damages for loss of wages and loss of

reputation.


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      The failure to renew the insufficiency claim as to emotional distress in a

post-verdict Rule 50(b) motion, despite every opportunity to do so, is fatal to the

defendants’ argument on appeal. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,

546 U.S. 394, 405 (2006) (holding that a circuit court is “powerless” to set aside a

jury verdict based on insufficiency of the evidence where a party fails to raise the

claim in a post-verdict Rule 50(b) motion, even where the party raised the issue in

a pre-verdict Rule 50(a) motion); Hi Ltd. P’ship v. Winghouse of Fla., Inc., 451

F.3d 1300, 1302 (11th Cir. 2006) (“Filing a pre-verdict, Rule 50(a) motion for

judgment as a matter of law cannot excuse a party’s post-verdict failure to move

for either a JNOV or a new trial pursuant to Rule 59(b).”). Moreover, even if the

defendants had raised a claim about the insufficiency of the emotional distress

evidence in their Rule 50(b) motion, the district court still would have been unable

to entertain it because the motion had been filed too late.

      We also reject the defendants’ claim that the district court committed error

by allowing testimony that allegedly ran counter to the court’s in limine orders.

We review a district court’s rulings on the admissibility of evidence only for abuse

of discretion. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir.

2008). This is a particularly deferential standard requiring that we affirm a district

court’s ruling unless it was manifestly erroneous or constituted a clear error of




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judgment. United States v. Frazier, 387 F.3d 1244, 1258–59 (11th Cir. 2004). We

can discern no abuse of discretion in the district court’s rulings.

                                          III.

      The Federal Rules of Bankruptcy Procedure govern cases arising under title

11, including those tried in district court, and Fed. R. Bankr. P. 9015(c) governed

the timeliness of the defendants’ Rule 50(b) motion to vacate the jury’s award.

Indisputably, the defendants failed to file their motion before the 14-day deadline

set by the rule; therefore, we reverse the order finding the defendants’ Rule 50(b)

motion timely, vacate the district court’s order granting the defendants relief under

Rule 50(b), and remand for the district court to reinstate the jury’s award. As for

the evidentiary questions, we affirm the judgment of the district court.

      AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED.




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