United States District Court, N.D. Mississippi, Aberdeen Division
JAMES E. KING, SR., PLAINTIFFS
PECO FOODS, INC. DEFENDANT
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs' Motion for New Trial
or Judgment as a Matter of Law . Defendant Peco
Foods, Inc. (“Peco”) filed a response in
opposition to the motion, and Plaintiffs filed a reply. Upon
due consideration of the parties' submissions and
relevant authorities, the Court is now prepared to rule.
and Procedural Background
was a nuisance and negligence action. The plaintiffs in the
case were fifty-seven residents of the Egypt community in
Monroe County, Mississippi. Peco-the defendant-is engaged in
broiler chicken operations. Cole's Poultry, LLC
(“Cole's”) and Skeels Poultry, LLC
(“Skeels”) operate chicken houses in the Egypt
community-in close proximity to Plaintiffs' homes and
properties. Peco has a contractual arrangement with
Cole's and Skeels, under which Peco, an Alabama
corporation, supplies chickens to Cole's and Skeels, who
actually operate the Monroe County facilities. Peco maintains
control over a large portion of Cole's and Skeels'
operations and management of the chickens throughout the
growing process, as clearly set forth in the parties'
contracts. While Plaintiffs initially filed suit against
Peco, Cole's, and Skeels, they eventually dismissed
Cole's and Skeels and proceeded solely against Peco.
their complaint, Plaintiffs alleged that Peco's
operations interfered with their ability to use and enjoy
their properties. Specifically, Plaintiffs alleged that
“[t]he foul, noxious, and potentially dangerous odors
emanating from these chicken facilities, as well as millions
of flies and other potentially harmful emissions have
impaired Plaintiffs' ability to use and enjoy their
properties and have caused substantial damage to their
quality of life.” Plaintiffs asserted both vicarious
liability and direct liability claims for nuisance and
negligence against Peco based upon the company's role in
the operation of the Monroe County facilities.
trial began on February 27, 2017 and continued until March
15, 2017, when the jury returned a verdict in favor of Peco
on all claims, awarding Plaintiffs no damages. The Court
entered a judgment reflecting the jury's verdict the
following day. Plaintiffs subsequently filed the present
motion on April 13, 2017, requesting a new trial or, in the
alternative, judgment as a matter of law. The Court will
first address Plaintiffs' arguments in favor of a new
trial and will then turn to their request for judgment as a
matter of law.
Motion for a New Trial
their motion, Plaintiffs argue that they are entitled to a
new trial for the following four reasons: (1) Peco's
improper and racially-motivated use of peremptory strikes to
remove three African-American jurors from the venire panel,
(2) the introduction of improper evidence and argument
concerning the poultry industry as a whole, (3) Peco's
improper argument suggesting to the jury that following
Mississippi Department of Environmental Quality
(“MDEQ”) regulations should immunize an
operation, and (4) improper remarks by Peco's counsel in
closing argument. As set forth below, the Court is
unpersuaded by Plaintiffs' arguments and finds that the
motion should be denied.
pertinent part, Rule 59 of the Federal Rules of Civil
Procedure provides that “[t]he court may, on motion,
grant a new trial on all or some of the issues . . . after a
jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal
court[.]” Fed.R.Civ.P. 59(1)(A). This Court has
previously recognized the vagueness of this statement,
looking to a treatise on the subject to provide further
The draftsman of the rule found that it was impractical to
enumerate all the grounds for a new trial. Thus the rule is
stated in broad terms. It has been said that the general
grounds for a new trial are that the verdict is against the
weight of the evidence, that the damages are excessive . . .
and that the motion may also raise questions of law arising
out of substantial errors in the admission or rejection of
evidence or the giving or refusal of instructions.
Williams v. Riley, 2012 WL 1570187, *1-2 (N.D. Miss.
May 3, 2012) (quoting 11 Wright & Miller, Federal
Practice and Procedure § 2805)). Moreover, “[a]
new trial will not be granted based on trial error unless,
after considering the record as a whole, the court concludes
that manifest injustice will result from letting the verdict
stand.” Learmonth v. Sears, Roebuck and
Co., 631 F.3d 724, 731 (5th Cir. 2011) (quoting
Foradori v. Harris, 523 F.3d 477, 506 (5th Cir.
2008)). “The authority to grant a new trial . . . is
confided almost entirely to the exercise of discretion on the
part of the trial court.” Nesbit v. W. Bolivar Sch.
Dist., 2013 WL 12180518, *1 (N.D. Miss. May 9, 2013)
(quoting Allied Chem. Corp. v. Daiflon, Inc., 449
U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980)).
argue that four separate grounds entitle them to a new trial.
The Court will address each argument in turn.
uses of its peremptory strikes:
Plaintiffs argue that they were “deprived of a fair
trial in this matter due to [Peco's] improper and
racially motivated use of peremptory strikes to remove
African-American jurors from the venire panel.” All
three of Peco's peremptory strikes were used to strike
African-Americans. The jury that was ultimately empaneled
consisted of seven white jurors and one African-American
United States Supreme Court has held that “racial
discrimination in a civil litigant's exercise of
peremptory challenges  violates the Equal Protection
Clause.” Georgia v. McCollum, 505 U.S. 42, 44,
112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). In addition to
offending the Constitution, the Fifth Circuit has also noted
that discrimination in the jury selection process
“calls into question the integrity of our judicial
system.” U.S. v. Huey, 76 F.3d 638, 641 (5th
of racial discrimination in jury selection are analyzed in a
three-step process. First, a defendant must make a prima
facie showing that the prosecution has exercised peremptory
challenges on the basis of race. Second, if a prima facie
showing is made, the burden shifts to the prosecution to
articulate a race-neutral reason for the peremptory challenge
at issue. Third, the trial court must determine whether the
defendant has proved purposeful discrimination.”
Price v. Cain, 560 F.3d 284, 286 (5th Cir. 2009)
(citing Batson v. Kentucky, 476 U.S. 79, 96-98, 106
S.Ct. 1712, 90 L.Ed.2d 69 (1986)) (internal citations
case at bar, Plaintiffs objected to Peco's use of its
peremptory strikes during the jury selection conference,
raising a Batson challenge as to each strike. The
Court found that Plaintiffs made a prima facie showing that
the challenges were made on the basis of race and then
required Peco to provide non-racial bases for each of its
strikes. Peco did so, and the Court ultimately ruled in its
favor as to all three strikes-finding that Plaintiffs had
failed to meet their burden of proving purposeful
discrimination. Now, Plaintiffs again raise this issue,
arguing that the Court erred in making its initial rulings
and that Peco's use of its peremptory strikes to remove
three African-Americans amounted to purposeful discrimination
and deprived them of a fair trial.
considering a Batson objection, or in reviewing a
ruling claimed to be Batson error, all of the
circumstances that bear upon the issue of racial animosity
must be consulted.” Stevens v. Epps, 618 F.3d
489, 493 (5th Cir. 2010) (quoting Snyder v.
Louisiana, 552 U.S. 472, 478, 128 S.Ct. 1203, 170
L.Ed.2d 175 (2008)) (additional citations omitted). In
determining this issue, “courts do not assess whether
‘counsel's reason is suspect, or weak, or
irrational.' Instead, courts address ‘whether
counsel is telling the truth in his or her assertion that the
challenge is not race-based.'” U.S. v.
Thompson, 735 F.3d 291, 297 (5th Cir. 2013) (quoting
U.S. v. Bentley-Smith, 2 F.3d 1368, 1374-75 (5th
Cir. 1993)) (internal citations omitted). The crux of this
analysis is whether the stated justifications are
“persuasive to the judge.” U.S. v.
Jynes, 197 F. App'x 351, 354 (citing Miller-El
v. Cockrell, 537 U.S. 322, 338-39, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003)). Importantly, the burden is upon the
party opposing the strike to “prove purposeful racial
discrimination.” Purkett v. Elem, 514 U.S.
765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (citations
first aver that Peco improperly struck Lexus Matthews, an
African-American female, from the jury panel. When prompted
by the Court to provide a reason for its decision to exclude
Matthews, Peco's counsel-Steve Carmody-stated that
Matthews had bad allergies and did not own her own home.
Carmody's and Plaintiffs' counsel's-Richard
Middleton- arguments as to Matthews are quoted below:
Mr. Carmody: First off, I'd like to say
we accepted Viola Duff, who is an African-American. First
off, addressing Lexus Matthews, Lexus Matthews, she does not
own her own home, which we found to be something that was
negative. She had bad allergies. Which, this is going to be a
case where some of the plaintiffs are going to talk about
allergies and their conditions.
The Court: I don't remember her saying
Mr. Middleton: She didn't say one thing
The Court: I don't recall that.
Mr. Carmody: It may be that we picked that
up on her Facebook page or something like that. But
that's what my notes say, bad allergies. She doesn't
own her own home; she lives with somebody else. And we just
didn't feel like she had appropriate eye contact with me.
She was always looking down. She was very quiet, and I just
-- her nonverbal was not good.
Court ultimately found Carmody's response persuasive and
overruled Plaintiffs' Batson objection.
Plaintiffs have attached to the present motion the Facebook
post to which Carmody referred in his response. In that post,
which was dated February 20 without providing a
year, Matthews stated:
Lord I guess the pollen has started because I've been
sniffing and eyes been watering and swelling all day.
#AllergiesGoAway. . .
aver that “Matthews complained on only one day about
allergy symptoms but neither the word ‘bad' nor
‘allergies' appears anywhere in her post.”
Further, Plaintiffs argue that the facts that Matthews did
not own her own home, that she suffered from seasonal
allergies, and her nonverbal communication in the courtroom
were not reasonable grounds to strike her. Specifically,
Plaintiffs state that “[t]hese explanations by defense
counsel appear to be nothing more than thinly-veiled attempts
to cover the fact that [Peco] removed [her] for the sole
reason that she is African-American.”
response, Peco avers that Matthews' previous Facebook
post about allergies was a reasonable justification for
striking her, stating that it was “well within its
right to question whether a person who complained about
sniffing, watery eyes, and swelling could be fair and
impartial in a case involving claims about odors and the
Plaintiffs' alleged inability to enjoy the outdoors
because of those odors.” Peco also asserts that the
fact that Matthews did not own her own home was a legitimate
reason to strike her “given Peco's theme that
‘good neighbors' attempt to work out their problems
before filing lawsuits.” Peco finally responds that
Matthews' nonverbal conduct in the courtroom was an
additional reasonable ground to strike her.
did in the jury selection conference, the Court finds
Peco's stated reasons to be persuasive and that its
decision to strike Matthews was not based on race. The fact
that Matthews posted on Facebook about allergies, along with
the fact that this case involved odors and the ability to
enjoy the outdoors, strikes the Court as a reasonable basis
to strike her as a potential juror. As to the fact that
Matthews does not own her own home, the Court stands by its
statement at the jury selection conference that “I
think the fact that, in this case, she doesn't own her
own property that was a legitimate question, something to
give thought to[.]”
Court also accepts Peco's representation that its
decision to strike Matthews was based on her nonverbal
communication. The Fifth Circuit has previously held that
“[v]alid reasons for exclusion may include
‘intuitive assumptions' upon confronting a
venireman.” U.S. v. Terrazas-Carrasco, 861
F.2d 93, 94 (5th Cir. 1988). Factors such as eye contact and
demeanor have previously been upheld as valid grounds for a
peremptory challenge. Id. (citing U.S. v.
Lance, 853 F.2d 1177, 1181 (5th Cir. 1988)); see
also Polk v. Dixie Ins. Co., 972 F.2d 83, 86 (5th Cir.
1992) (“Recognizing that the decision to exercise a
peremptory challenge is subjective and often influenced by
intuitive assumption, we have explicitly accepted eye contact
(or lack thereof) as a legitimate rationale.”)
the Court finds persuasive the nondiscriminatory reasons set
forth by Peco. Plaintiffs have not carried their burden of
proving purposeful discrimination, and, accepting Peco's
reasons as legitimate, the Court finds that its previous
ruling on Plaintiffs' Batson challenge as to
Matthews should not be disturbed.
Plaintiffs assert that Peco's decision to use a
peremptory strike on Kimetrica Wright, an African-American
female, was discriminatory. During voir dire, Carmody and
Wright engaged in the following exchange:
Mr. Carmody: … Is there anybody here
that thinks, as we're sitting right here today, that just
because people smell stuff that they're going to fall
sick or be sickly or eventually get sick? Anybody here think
that just because of a bad smell that you're going to
suffer a medical condition?
Ms. Wright: Well, it depends on if they
already have a medical condition. Because, when I was growing
up, I had asthma. And certain things will trigger, you know,
that off. So it all depends. Some people can stand certain
smells; some people can't.
Mr. Carmody: But you don't think just
because there are smells they automatically will get sick or
Ms. Wright: Well, some people have weak
stomachs; some people have cast-iron stomachs.
during the jury selection conference, when prompted to
provide his reasons for exercising a ...