UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-22671-CIV-ALTONAGA/Torres

DELIO BATISTA, et al., 

Plaintiffs, 

v. 

AVANT ASSURANCE INC., et al., 

Defendants.

_______________________________/ 

ORDER

On September 21, 2023, Defendant, Avant Assurance Inc., filed a Renewed Rule 59 

Motion for Remittitur, or Alternatively, New Trial [ECF No. 124]. The Court referred the Motion 

to Magistrate Judge Edwin G. Torres to take all necessary and proper action as required by law. 

(See Oct. 6, 2023 Order [ECF No. 132]). The matter is now before the Court on the Magistrate 

Judge’s Amended Report and Recommendation [ECF No. 139], entered on November 1, 2023, 

recommending the Court deny Avant’s Motion. (See id. 13). Avant timely filed Objections [ECF 

No. 141] to the Report, to which Plaintiffs, Delio Batista, Carlos Lopez, Mariana Lopez, and 

Rafaela Valiente filed a Response [ECF No. 142]. 

When a magistrate judge’s findings or recommendations have been properly objected to, 

district courts must review the objected-to findings or recommendations de novo. See 28 U.S.C. 

§ 636(b)(1)(c); Fed. R. Civ. P. 72(b)(3). Given Avant’s Objections, the Court reviews the 

Amended Report de novo. 

In his comprehensive analysis, the Magistrate Judge considered Avant’s sole argument 

purportedly justifying remittitur or a new trial: that Plaintiffs “failed to introduce sufficient 

evidence” to justify the jury’s award of $117,164.00 in contractual damages. (Am. Report 3). The 

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Magistrate Judge concludes that Defendants “repeatedly waived th[e] ‘sufficiency of the evidence’ 

argument throughout the trial” (id. (alteration added)), and the verdict was not “manifestly against 

the weight of the evidence” (id. 11). In its Objections, Avant raises five arguments (see Objs. 2–

9), all of which the Court finds unpersuasive. The Court explains.

Avant’s first two arguments relate to the Magistrate Judge’s conclusion that Avant waived 

its ability to challenge the sufficiency of the evidence. (See id. 2–5). Avant first argues the 

Magistrate Judge erred in applying a contemporaneous objection requirement and then maintains 

it was not required to move for judgment as a matter of law to preserve its arguments as to the 

sufficiency of the evidence. (See id.). According to Avant, a contemporaneous objection is only 

required to preserve challenges to the admissibility of speculative testimony, not a speculatively 

reached verdict. (See id. 2). Avant insists “[i]t is impossible to object to evidence that was never 

presented[,]” and its only option was to “challenge th[e] lack of evidence in a post-trial motion.” 

(Id. (alterations added)).

Avant is wrong. The issue of whether the verdict was speculative relies on the sufficiency 

of the underlying evidence. At trial, pre-verdict, Defendants could have, but did not, object to the 

sufficiency of evidence under Federal Rule of Civil Procedure 50(a) by raising a motion for 

judgment as a matter of law. (See Am. Report 6). 

Further, regardless of whether a pre-verdict motion is required, the Court is guided by 

governing waiver principles. When a litigant “gamble[s] on a jury’s verdict” and waits until after 

the verdict to raise a sufficiency of the evidence claim, the litigant “sandbag[s]” the court and 

counsel, and “nothing can be done except by way of a complete new trial.” Quinn v. Sw. Wood 

Prods. Inc., 597 F.2d 1018, 1024–25 (5th Cir. 1979) (alterations added; citation omitted).

1

 

1 Avant’s reliance on First United Pentecostal Church v. GuideOne Specialty Mutual Insurance Company

for the proposition that “either a directed verdict motion or a post-trial motion is sufficient to challenge 

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Avant’s failure to move for judgment as a matter of law, even after the undersigned “ask[ed] 

Defendants whether they wanted to move for any relief” (Am. Report 2 (alteration added)), 

demonstrates Avant was “of the view that the evidence made a case for the jury[,]” Quinn, 597 

F.2d at 1024 (alteration added; citation omitted). Avant offers no legitimate reasoning why its 

view has changed other than the outcome of the verdict, and “[a] party is not entitled to a new trial 

because it disagrees with the jury’s verdict.” Handley v. Werner Enters., Inc., 655 F. Supp. 3d 

1348, 1368 (M.D. Ga. 2023) (alteration added). 

Avant’s third and fourth arguments relate to the Magistrate Judge’s review of the evidence. 

(See Objs. 5–6). Avant first takes issue with the Magistrate Judge’s consideration of a credibility 

argument Avant says it never raised (see id.), and then insists there was no “range” or “discernable 

basis” for calculating Plaintiffs’ damages (id. 6). 

The Magistrate Judge never suggests Avant raised a credibility argument. (See generally

Am. Report). Rather, he mentions “the jury obviously found Plaintiffs’ testimony credible[,]” only 

to suggest that “there was evidence in the record . . . to support the jury’s damage calculation.” 

(Id. 8 (alterations added)). The Magistrate Judge then correctly states that the jury’s determination 

may “be only approximate[,]” so long as it is “not determined by mere speculation[.]” (Id. 11 

(alterations added; quotation marks omitted; quoting Story Parchment Co. v. Patterson Parchment 

Paper Co., 282 U.S. 555, 562 (1931))); (see also Am. Report 11–12); (Resp. 3–4 (citations 

omitted) (describing evidence produced at trial)). Avant’s arguments to the contrary are 

unavailing.

sufficiency of the evidence” is inapt. (Objs. 4 (emphasis omitted; citing 189 F. App’x 852, 856 (11th Cir. 

2006))). The movant in that case filed a Rule 50(a) motion for judgment as a matter of law but “failed to 

renew its [Rule 50(a)] motion . . . or file a motion for new trial pursuant to Rule 50(b).” First United 

Pentecostal Church, 189 F. App’x at 856 (alterations added). Avant did not move for judgment as a matter 

of law at any point; moreover, the case does not suggest Avant should be entitled to a new trial under the 

present circumstances.

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Avant’s final argument is somewhat of a last-ditch regurgitation of its waiver arguments. 

(Compare Objs. 9 with id. 2–5). It contends the Magistrate Judge errs in relying on First United

Pentecostal Church to recommend a finding of waiver because Avant filed a motion for new trial 

and therefore did not waive any arguments. (See id. 9 (citing 189 F. App’x at 856)). As explained, 

Avant’s failure to move for a new trial informs the Court’s discretion on this issue — discretion it 

declines to exercise in Avant’s favor. Going further, the Magistrate Judge cites First United 

Pentecostal Church only to support the proposition that “the verdict is entirely supported by the 

evidence that was presented at trial” and “should not be disturbed.” (Am. Report 13 (citing First 

United Pentecostal Church, 189 F. App’x at 856; other citation omitted)). The Court agrees. 

Having reviewed the Report, the record, and the applicable law de novo, the undersigned 

agrees with the analysis and recommendations stated in the Amended Report and agrees with the 

Magistrate Judge’s conclusions. Accordingly, it is 

ORDERED AND ADJUDGED as follows: 

1. Defendant, Avant Assurance Inc.’s Objections [ECF No. 141] are OVERRULED. 

2. The Amended Report and Recommendation [ECF No. 139] is ACCEPTED AND

ADOPTED. 

3. Avant’s Renewed Motion for Remittitur, or Alternatively, New Trial [ECF No. 

124] is DENIED. 

DONE AND ORDERED in Miami, Florida, this 8th day of December, 2023. 

 

CECILIA M. ALTONAGA

CHIEF UNITED STATES DISTRICT JUDGE

cc: counsel of record 

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