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King v. Peco Foods, Inc.

United States District Court, N.D. Mississippi, Aberdeen Division

June 5, 2017




         Presently before the Court is Plaintiffs' Motion for New Trial or Judgment as a Matter of Law [484]. 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.

         Factual and Procedural Background

         This was a nuisance and negligence action. The plaintiffs in the case were fifty-seven residents of the Egypt community in Monroe County, Mississippi.[1] 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.

         In 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.

         A jury 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.

         Plaintiffs' Motion for a New Trial

         In 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.


         In 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 guidance:

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)).


         Plaintiffs argue that four separate grounds entitle them to a new trial. The Court will address each argument in turn.

         Peco's uses of its peremptory strikes:

         First, 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 juror.[2]

         The 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 Cir. 1996).[3]

         “[C]laims 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 omitted).[4]

         In the 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.

         “In 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 omitted).

         Plaintiffs 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 about allergies.
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.

         The 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[5], Matthews stated:

Lord I guess the pollen has started because I've been sniffing and eyes been watering and swelling all day. #AllergiesGoAway. . .

         Plaintiffs 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.”

         In 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.

         As it 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[.]”

         The 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.”) (citations omitted).

         In sum, 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.

         Next, 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.

         Thereafter, during the jury selection conference, when prompted to provide his reasons for exercising a ...

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