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Bolden v. J & R Inc.

March 1, 2001


The opinion of the court was delivered by: Date Gladys Kessler United States District Judge


This matter is before the Court on Defendant J & R Incorporated's Motion for Judgment and Motion to Amend or Alter Judgment [#32]. Upon consideration of the motion, opposition, reply, and the entire record herein, for the reasons stated below, Defendant's Motion is denied.

I. Background

Plaintiffs, Joel Bolden and Len Silva, sued Defendant Muhammad Mehmood, a cab driver, and J & R Incorporated, a cab company, under 42 U.S.C. § 1981, the District of Columbia Human Rights Act, D.C. Code § 1-2519, and local common law for discrimination in the provision of taxicab service. The facts of this case are detailed in the Court's Memorandum Opinion of May 3, 2000, and will not be repeated herein. On June 21, 2000, a jury returned a verdict in favor of Plaintiffs on their race discrimination claims, awarding each Plaintiff $6,000 in compensatory damages and $45,000 in punitive damages against J & R. J & R now moves for renewed judgment notwithstanding the verdict ("judgment n.o.v.") and to amend or alter the judgment.

II. Standard of Review

A renewed motion for judgment under Fed. R. Civ. P. 50 need not be granted unless the evidence and inferences reasonably drawn therefrom are so one-sided that reasonable jurors could not disagree on the verdict. See Vander Zee v. Karabatsos, 589 F.2d 723, 726 (D.C. Cir. 1978). In considering a motion for judgment, the evidence must be viewed "in the light most favorable to [plaintiffs] . . ., giving them the advantage of every fair and reasonable inference that the evidence may justify." See Carter v. Duncan-Huggins, 727 F.2d 1225, 1227 (D.C. Cir. 1984).

Under Fed. R. Civ. P. 59(e), a court need not grant a motion to alter or amend a judgment unless it finds that there is an "intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 F.3d 1205 (D.C. Cir. 1996)(citing Nat'l Trust v. Dept. of State, 834 F.Supp. 453, 455 (D.D.C. 1993)(additional citations omitted).

III. Analysis

A. J & R's Arguments are Waived.

J & R failed to raise the majority of the foregoing arguments until after the jury's verdict in its Renewed Motion for Judgment and Motion to Amend or Alter Judgment. In fact, most of J & R's objections appear for the first time in its reply brief after new counsel took over the case.

Ordinarily, arguments not raised prior to the jury's verdict, such as in a motion for directed verdict or otherwise, are waived. See e.g., Whelan v. Abell, 48 F.3d 1246, 1251 (D.C. Cir. 1995)(arguments not a part of a motion for directed verdict cannot form basis of judgment n.o.v.); Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993) (motion to alter or amend judgment does not permit court to consider theories which could have been raised earlier). The purpose of this rule is to ensure that parties have made the most persuasive case possible, to cure any deficiencies therein, and to prevent unfair surprise after a matter has been submitted to a jury. With the exception of J & R's challenge to the actual amount of the punitive damages award, all of J & R's arguments could have been raised earlier. *fn1 J & R never challenged Plaintiffs' request for punitive damages or their theory of vicarious liability, despite ample opportunity to do so. J & R did not raise these arguments in its Answer, in a motion for summary judgment, in pre-trial submissions, during the jury instruction conference, in its motion for directed verdict, or at any time prior to the verdict. At the very least, objections to the instructions on punitive damages and on applicability of Rhone should have been presented at the jury instruction conference or subsequently, in J & R's motion for directed verdict. Fed. R. Civ. P. 51 ("[n]o party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds for the objection"); see also Whelan, 48 F.3d at 1251. Given that J & R waited until the eleventh hour to raise a panoply of objections that could have been raised on numerous occasions prior to the jury's verdict, the Court concludes that J & R's arguments are waived. However, in the interest of judicial economy, the Court will briefly address the merits of these arguments below.

B. J & R is Estopped from Denying Vicarious Liability.

Ordinarily, a plaintiff must prove an employer-employee relationship before a company can be held vicariously liable for the conduct of its employees. Under Rhone v. Try Me Cab Co., 65 F.2d 834 (D.C. Cir. 1933), there is an exception to this requirement, namely that a taxicab company is estopped from denying vicarious liability when one of its drivers injures a passenger, and when the taxicab bears the company's colors and markings. J & R argues that Rhone does not apply unless a plaintiff specifically relies on the colors or markings of a particular cab company in attempting to contract for its services.

Rhone and its progeny make clear that when passengers hail cabs from a curbside, pre-selection of a particular cab company based on its colors or markings is not required. See e.g., Tarman v. Southard, 205 F.2d 705 (D.C. Cir. 1953). Thus, as long as a curb-side passenger seeking cab services hails a cab that is authorized to bear a company's colors or insignia, a company may be held vicariously liable. See Floyd-Mayers v. American Cab Co., 732 F.Supp. 243, 244 (D.D.C. 1990)(vicarious liability applies to hold company responsible for injuries to passenger in cab bearing its colors regardless of ownership ...

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