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HomeMy WebLinkAboutBack-Up DocumentsUSCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 1 of 9 [DO NOT PUBLISH] 3 n to urfeb afrs (CourfAmaraIs :for fly 3EIr.xrnfI Crirruid No. 21-11746 Non -Argument Calendar WILLIAM O. FULLER, MARTIN A. PINILLA, II, versus JOE CAROLLO, JOHN DOES 1-10, et al., Plaintiffs -Appellees, Defendant -Appellant, Defendants. USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 2 of 9 2 Opinion of the Court 21-11746 Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:18-cv-24190-RS Before WILLIAM PRYOR, Chief Judge, WILSON, and ANDERSON, Cir- cuit Judges. PER CURIAM: Joe Carollo, a City Commissioner, appeals a second time a denial of immunity from a complaint filed by William O. Fuller and Martin A. Pinilla, businessmen from the Little Havana neighbor- hood of Miami, who allege that Carollo repeatedly harassed them in retaliation for their political support of his election opponent in violation of the First Amendment. See 42 U.S.C. § 1983. After brief- ing and oral argument, we dismissed Carollo's first appeal for lack of jurisdiction because it challenged a nonfinal order that granted the businessmen leave to amend their complaint. Fuller v. Carollo, 977 F.3d 1012 (11th Cir. 2020). Fuller and Pinilla amended their complaint, and the district court granted a partial dismissal based on legislative immunity and denied a dismissal based on qualified immunity. We affirm. I. BACKGROUND At this stage, we accept the allegations in the amended com- plaint as true and construe them in the light most favorable to the USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 3 of 9 21-11746 Opinion of the Court 3 plaintiffs. See Keatingv. CityofMiami, 598 F.3d 753, 762 (11th Cir. 2010). We need not rehash all the details of the proceedings that led to their first appeal. We limit our review to the allegations in the amended complaint that relate to Carollo's arguments for leg- islative and qualified immunity. In 2017, Carollo was a candidate for city commissioner for the district 3 that includes Little Havana. Before the general elec- tion, he sought Fuller's political support and the two men appeared to have a good relationship. Carollo advanced to a runoff election against Alfie Leon. After early voting for the runoff began, Leon held political rallies at a property Fuller owned that was adjacent to an early vot- ing center. Carollo's campaign chief of staff, Steve Miro, noticed Pinilla at the rallies and notified Carollo. On the last day of early voting, Miro saw Pinilla at a rally, called Fuller, and demanded that he shut down the event. Carollo and Miro then used contacts in city government to shut down the rally. Carollo defeated Leon in the runoff election in November. Less than a week later, at Carollo's direction, dozens of po- lice, fire, building, and other officers raided Sanguich de Miami, a restaurant where Fuller and Pinilla were investors and landlords. Weeks later, Carollo introduced and voted for Ordinance 13733, which ended the temporary -use permits used to operate Sanguich. When Sanguich attempted to reopen, city officials twice shut it down acting on direct orders from Carollo and his associates. Car- ollo also targeted Sanguich at the Gay 8 Festival where it operated USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 4 of 9 4 Opinion of the Court 21-11746 as a tent vendor. Carollo and Miro voiced concerns about Sanguich selling contaminated food to a city fire inspector, who then per- formed an intrusive surprise inspection. Carollo did not target any other vendor at the festival. Sanguich eventually relocated to a property not owned by Fuller and Pinilla and resumed operations without interference. A month after the runoff election, Carollo also attempted to shut down Fuller and Pinilla's office Christmas party. Carollo had Maria Lugo, a campaign advisor and former city employee, de- mand that the director of code enforcement shut down the event for lacking a special events permit. When an enforcement officer reported that the event did not violate the code, her supervisor (a friend of Lugo) instructed her to remain outside the event until it ended. Carollo also complained to the assistant city manager, who instructed the director to attend the party in person. The director later confirmed to Fuller that Carollo's actions were politically mo- tivated. Three months after the runoff, Carollo shut down the one- year anniversary party of Union Beer Store after visiting the prop- erty with several police officers and code enforcement officer. Fuller and Pinilla were landlords for and partners in Union Beer. That same month, Carollo also started harassing the Ball & Chain nightclub, which Fuller and two friends owned. Carollo and several associates visited the club's valet parking lot and photo- graphed cars on the pretense of performing an "official investiga- tion" of the operation. Later, Carollo visited residents of a nearby USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 5 of 9 21-11746 Opinion of the Court 5 building to solicit noise complaints against the club. Carollo also conducted a "park -and -walk" with city employees, including the acting director of code enforcement, to meet with a resident Car- ollo had prepped to make a noise complaint against the club. Car- ollo arranged the park -and -walk without the knowledge of the city manager. Carollo later texted a parking complaint to the city man- ager, who in turn directed three code officers and a police officer to force club employees to move their cars from the club's parking lot. The general manager of the club later discovered Carollo and a member of the code enforcement board behind the club attempt- ing to solicit more noise complaints from neighbors. Carollo also used his official authority to harass Fuller in other ways. For example, Carollo issued orders shutting down Domino Plaza, the customary site of the monthly Viernes Cul- turales festival hosted by an organization led by Fuller. And, after Carollo raised concerns about Fuller -owned properties during a meeting of the city commission, the city attorney sent an email to local administrators requesting a review of records of and the in- spection of properties discussed at the meeting, most of which were owned by Fuller or his associates or were related to Fuller's businesses. Fuller and Pinilla filed a complaint in the district court alleg- ing that Carollo retaliated against them in violation of the First Amendment. See42 U.S.C. § 1983. Carollo moved to dismiss based on qualified immunity and legislative immunity. A magistrate judge issued a report and recommendation that the district court USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 6 of 9 6 Opinion of the Court 21-11746 grant Carollo's motion in part and deny it in part. The district court adopted that report and recommendation. And it granted Fuller and Pinilla leave to amend their complaint consistent with the re- port and recommendation. We dismissed Carollo's appeal of that order for lack of jurisdiction. Fuller, 977 F.3d 1012 After remand, Fuller and Pinilla filed a second amended complaint against Carollo. The amended complaint repeated many of the allegations made in the amended complaint. Carollo moved to dismiss the amended complaint, which the district court granted in part and denied in part. Fed. R. Civ. P. 12(b)(6). The district court ruled that Carollo enjoyed legislative immunity as to "the passage of Ordinance 13733," but that he lacked legislative or qualified immunity for the "multiple actions directed solely at [Fuller and Pinilla] or directed at others who did business with [them]" and where his conduct "involve[d] code en- forcement, something the Eleventh Circuit has stated is adminis- trative, not legislative." II. STANDARD OF REVIEW We review de novo the denial of a motion to dismiss based on immunity from suit. See Crymes v. DeKalb Cty., Ga., 923 F.2d 1482, 1485 (llth Cir. 1991) (legislative immunity); Keating, 598 F.3d at 762 (qualified immunity). USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 7 of 9 21-11746 Opinion of the Court 7 III. DISCUSSION We divide our discussion in two parts. First, we discuss Carollo's argument for legislative immunity. Second, we discuss Carollo's argument for qualified immunity. A. The District Court Did Not Err by Partially Denying Carollo Legislative Immunity. "Absolute legislative immunity extends only to actions taken within the sphere of legitimate legislative activity." Brown v. Crawford Cty., Ga., 960 F.2d 1002, 1011 (l lth Cir. 1992) (inter- nal quotation marks omitted). So, -lilt is the official function that determines the degree of immunity required, not the status of the acting officer." Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir. 1982) (alteration adopted) (quoting Marrero v. City of Hialeah, 625 F.2d 499, 508 (5th Cir. 1980)). To enjoy absolute immunity, the legislator must engage in "[a] legislative act [that] involves policy -making rather than [the] mere administrative ap- plication of existing policies." Crymes, 923 F.2d at 1485. The act of "rulemaking ... [is] legislative." Id But the enforcement of laws against "specific individuals, rather than the general popula- tion, ... [are] more apt to be administrative" and excluded from protection under the doctrine of legislative immunity. Id The district court did not err in partially denying Carollo's argument for legislative immunity. Fuller and Pinilla's amended complaint alleges that Carollo exceeded the bounds of his legisla- tive responsibilities by repeatedly harassing their businesses. USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 8 of 9 8 Opinion of the Court 21-11746 Carollo's alleged enforcement actions were not legislative func- tions for which he was entitled to absolute immunity. Carollo ar- gues that legislative immunity applies to "matters arising out of his Commission votes," but the district court ruled that he was immune from suit for actions related to the passage of Ordinance 13733. Carollo also argues that he is immune from suit for "intro- ducing legislation to abolish the use of special masters," but Fuller and Pinilla deleted that allegation from their amended complaint. Carollo identifies no legislative function he allegedly performed for which the district court denied him absolute immunity. B. Carollo's Argument for Qualified Immunity Fails. Carollo's argument for qualified immunity also fails. Car- ollo argues that the district court erred in determining that his ac- tions fell outside "the allowable duties and functions of a City leg- islative policymaker." But the district court agreedthat Carollo was acting in his discretionary capacity as a city commissioner. Carollo also argues that an investigative report attached to the complaint "rendered the[] First Amendment retaliation claims im- plausible," but the district court declined to consider the hearsay in that report. SeeJones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012). Carollo does not challenge that reasoning. And Carollo identifies no legal error in the ruling that the com- plaint against him alleges that he violated settled law prohibiting officials from retaliating against constituents who engage in politi- cal activities protected by the First Amendment. USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 9 of 9 21-11746 miss. Opinion of the Court 9 IV. CONCLUSION We AFFIRM the partial denial of Carollo's motion to dis- USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 1 of 2 David J. Smith Clerk of Court UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303 February 04, 2022 MEMORANDUM TO COUNSEL OR PARTIES Appeal Number: 21-11746-CC Case Style: William Fuller, et al v. Joe Carollo District Court Docket No: 1:18-cv-24190-RS For rules and forms visit www.call.uscourts.gov Electronic Filing All counsel must file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Non -incarcerated pro se parties are permitted to use the ECF system by registering for an account at www.pacer.gov. Information and training materials related to electronic filing are available on the Court's website. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b). The time for filing a petition for rehearing is governed by llth Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by llth Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and llth Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 1 lth Cir. R. 39-2 and 39-3. Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See llth Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See llth Cir. R. 35-5(k) and 40-1 . Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja evoucher@call.uscourts.gov for questions regarding CJA vouchers or the eVoucher system. Pursuant to Fed.R.App.P. 39, costs taxed against the appellant. USCA11 Case: 21-11746 Date Filed: 02/04/2022 Page: 2 of 2 Please use the most recent version of the Bill of Costs form available on the court's website at www.calLuscourts.gov. For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Carol R. Lewis, CC at (404) 335-6179. Sincerely, DAVID J. SMITH, Clerk of Court Reply to: Djuanna H. Clark Phone #: 404-335-6151 OPIN-1A Issuance of Opinion With Costs Case 1:18-cv-24190-RS Document 618 Entered on FLSD Docket 02/06/2024 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 18-24190-CIV-SMITH WILLIAM O. FULLER, et al., Plaintiffs, v. JOE CAROLLO, Defendant. ORDER DENYING MOTION TO CLARIFY JUDGMENT This matter is before the Court on Plaintiffs' Motion to Clarify Judgment [DE 504], Defendant, Joe Carollo's Response in Opposition [DE 532], and Non -Party City of Miami's Notice of Limited Appearance and Jurisdictional Objections in Opposition to Plaintiffs' Motion to Clarify or Amend Final Judgment [DE 536]. Plaintiffs seek an order from this Court clarifying that the June 1, 2023 Final Judgment is against Joe Carollo individually and in his official capacity and, if necessary, allow them to amend the pleadings to reflect that. Plaintiffs move for clarification pursuant to Federal Rules of Civil Procedure 60(a), 59(e), and 15(b)(1). For the reasons set forth below, the Motion to Clarify Judgment is denied. To establish official capacity liability a plaintiff must: "(1) identify[] an official policy; (2) identify[] an unofficial custom or widespread practice that is so permanent and well settled as to constitute a custom and usage with the force of law; or (3) identify[] a municipal official with final policymaking authority whose decision violated the plaintiff's constitutional rights." Chabad Chayil, Inc. v. Sch. Bd. of Miami -Dade Cnty., Fla., 48 F.4th 1222, 1229 (llth Cir. 2022) (alterations added; citation omitted). Plaintiffs raise two arguments to support a finding that Case 1:18-cv-24190-RS Document 618 Entered on FLSD Docket 02/06/2024 Page 2 of 4 Carollo was sued in both his individual and official capacities: (1) the parties' pleadings and the course of proceedings make it clear that Carollo was sued in his individual and official capacity and (2) the evidence at trial establishes a case for official capacity liability. First, Plaintiffs argue it is clear from the pleadings that Carollo was sued in his official capacity. However, despite Plaintiff's claim, the pleadings are not so clear. Plaintiff's initial Verified Complaint [DE 1] states that "Plaintiffs have filed this action against Carollo in his individual capacity, and not against the City, as Carollo's actions are not those of the City (at least not yet), and instead are directly contrary to and in violation of the City Charter and other laws." (Compl. at 3.) Plaintiffs' Amended Complaint [DE 43] names Carollo and the City of Miami (the "City"), as well as others, as defendants. The claims against the City in the Amended Complaint were dismissed with leave to replead. (See R&R [DE 99] & Order Adopting R&R [DE 118].) Plaintiffs then filed their Second Amended Complaint [DE 125]. The Second Amended Complaint ("SAC") dropped the City of Miami as a named party and names only Carollo as a defendant. The SAC does not explicitly allege in what capacity Carollo has been sued. However, there are no allegations that he was acting in his official capacity and Plaintiffs allege that "Carollo was not acting within the scope of his discretionary authority as a Miami City Commissioner [and] was violating the Miami City Charter." (SAC ¶ 316 (alterations added).) Moreover, Plaintiffs do not allege a policy or custom of the City in the SAC. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) ("in an official -capacity suit the entity's `policy or custom' must have played a part in the violation of federal law." (citations and footnote call number omitted)). Additionally, Plaintiff sought punitive damages from Carollo (see SAC at 56), which are not available in an official capacity suit, City ofNewport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) ("a municipality is immune from punitive damages under 42 U.S.C. § 1983"). Thus, the language of the operative 2 Case 1:18-cv-24190-RS Document 618 Entered on FLSD Docket 02/06/2024 Page 3 of 4 complaint and Plaintiffs' decision to drop the City of Miami as a Defendant indicate that Carollo was sued in his individual capacity only. Plaintiffs also point to Carollo's pleadings in support of their Motion. Carollo's Answer to the SAC [DE 201] states that he is being "sued in his official capacity as an elected representative of the citizens of the City of Miami, Florida." (Answer at 2.) It further states that Carollo's conduct has been "in the course and furtherance of his official responsibilities." (Answer at 4.) In his third affirmative defense, Carollo pleads that "all the facts surrounding the SAC are alleged actions taken by Commissioner Carollo while acting as a City Commissioner in his official capacity." (Answer ¶ 324.) However, this statement was made in an affirmative defense attempting to negate Plaintiffs' claim for punitive damages. In their Motion, Plaintiffs also point to language in Carollo's Motion to Dismiss the Amended Complaint, where Carollo argued that he "is protected by the doctrines of qualified immunity and legislative immunity, since the conduct is alleged to have occurred during the scope of his official authority as a City of Miami elected public official." (Mot. to Dismiss [DE 53] at 1.) However, this language is relevant to the defense of qualified immunity, not whether Carollo was sued in his official capacity. Thus, the language of the pleadings does not make it clear that Carollo was sued in his official capacity. Next, Plaintiffs maintain that the City of Miami had notice and participated in the case. While there is no doubt that the City had notice, even observing most, if not all, days of the trial, the City did not have an opportunity to respond once it was dropped as a party. Further, Plaintiffs' own Motion undermines their claim that Carollo was always sued in his official capacity. Plaintiffs state that "the City was dismissed as a named defendant in 2018 based on a lack of allegations at the time of official City policies or customs, which did not arise until at least a year later." (Mot. 3 Case 1:18-cv-24190-RS Document 618 Entered on FLSD Docket 02/06/2024 Page 4 of 4 to Clarify at 6.) Thus, while the City had notice of the suit, nothing in the Amended Complaint indicated that Carollo was being sued in his official capacity. Finally, Plaintiffs also argue that the evidence introduced at trial established that Carollo was sued in his official capacity. While Plaintiffs may have presented evidence that could be considered in determining whether to hold Carollo liable in his official capacity, the jury was not asked to, and did not, make any factual findings that would support official capacity liability. The Verdict Form [DE 470] did not require the jury to make any finding that there was an official policy, unofficial custom, or that Carollo had final decision -making authority. Thus, the record lacks the factual findings necessary to hold Carollo liable in his official capacity.' Consequently, the June 1, 2023 Final Judgment against Joe Carollo is against Joe Carollo in his individual capacity only. Accordingly, it is ORDERED that Plaintiffs' Motion to Clarify Judgment [DE 504] is DENIED. The Court' s June 1, 2023 Final Judgment [DE 479] is against Joe Carollo in his individual capacity only. The Court will not consider a motion for reconsideration on this issue. DONE and ORDERED in Fort Lauderdale, Florida, this 6th day of February, 2024. /ex, RODNEY SMITH UNITED STATES DISTRICT JUDGE cc: All Counsel of Record 1 This is different than the situation in Brandon v. Holt, 469 U.S. 464 (1985), upon which Plaintiffs rely. In Brandon, the Supreme Court found that the record was clear that the defendant had been sued in his official capacity and the trial court made factual findings that the defendant's policies were at fault. Id. 4 USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 1 of 19 [DO NOT PUBLISH] in fly Unrfeb rs Caurf cif Appeals :far Tarinnfil Crirruif No. 23-12167 WILLIAM O. FULLER, MARTIN A. PINILLA, II, versus JOE CAROLLO, JOHN DOES 1-10, et al., Plaintiffs -Appellees, Defendant -Appellant, Defendants. USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 2 of 19 2 Opinion of the Court 23-12167 Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:18-cv-24190-RS Before ROSENBAUM, BRANCH, and KIDD, Circuit Judges. PER CURIAM: Joe Carollo, a sitting commissioner of the City of Miami, appeals the district court's entry of final judgment on a jury verdict levying over $60 million in damages against him. Plaintiffs William O. Fuller and Martin Pinilla, II claimed that Carollo retaliated against them for supporting one of Carollo's election opponents in violation of their First Amendment rights. After a 24-day trial, the jury found in favor of Fuller and Pinilla. Carollo now attacks the judgment on three grounds: (1) jury tampering occurred and warrants a new trial, (2) the district court should have granted him judgment as a matter of law, and (3) the jury's damages award was excessive and warrants a new trial or remittitur. We conclude that the district court properly handled Carollo's accusations of jury tampering and that we lack appellate jurisdiction over the remaining issues. Thus, after careful review and with the benefit of oral argument, we affirm in part and dismiss in part. I. Background Carollo represents Miami's District 3, which includes the Little Havana neighborhood. Plaintiffs are Miami businessmen USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 3 of 19 23-12167 Opinion of the Court 3 whose work centers around the Little Havana neighborhood. Plaintiffs manage several projects, businesses, and properties in Little Havana and around Miami. In 2017, Miami held an election for District 3 Commissioner. In that election, Carollo advanced to a run-off against Alfonso "Alfie" Leon. Plaintiffs supported Leon in that election, often through one or more of their businesses. Carollo disliked plaintiffs' opposition to his candidacy, and he made his animus towards plaintiffs well-known. During and after the 2017 election, which Carollo won, Carollo tried to sic other Miami officials (including the city attorney, police, and code -enforcement officers) on plaintiffs to have their businesses and tenants selectively inspected or to have the city code selectively enforced against them.' Carollo also publicly accused plaintiffs of being "money launderers connected to the communist regime" and called Fuller "a criminal Godfather." Several other Miami officials expressed concern about Carollo's behavior towards plaintiffs. In 2018, in response to Carollo's conduct, Fuller filed an ethics complaint against Carollo. Afterwards, Carollo "elevated the attacks" against plaintiffs. Based on Carollo's attacks, plaintiffs brought this suit in 2018. Plaintiffs' operative complaint alleged one count of 1 Trial evidence reveals that several ofplaintiffs' entities or tenants did, in fact, violate city ordinances and the Florida Building Code. USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 4 of 19 4 Opinion of the Court 23-12167 retaliation in violation of the First Amendment and 42 U.S.C. § 1983 against Carollo. The parties went to trial in 2023. On day seven of the trial, the district court received a note from Juror 3. Juror 3 reported that after day five of the trial, she left the courthouse and went to her car in a parking garage. While waiting for the elevator, "a young man that [Juror 3] recognized from attending the trial on the plaintiffs' side arrived in the same area to wait for the elevator." The man was later identified as Zach Bush, one of plaintiffs' business partners. In the elevator, Juror 3 pushed the button to go to the fifth floor, and Bush "did not press any floors which made [Juror 3] feel very weary [sic]." Juror 3 asked Bush what floor he was going to, and Bush "responded in a funny manner with laughter, `I'm following you.— Bush clarified he was "going to five also." Then, as Juror 3 and Bush left the elevator, he told Juror 3 "that people should be careful because last week or a few days ago, a former chief of police came to testify in a case and when the former chief of police was leaving, he was followed by two [private investigators]." Bush told Juror 3 that that incident "was also on social media" and that "everyone should be careful." Juror 3 "strongly believe[d] that this gentleman [knew] [Juror 3 was] in the jury." After the district court read Juror 3's note to the parties' counsel, counsel agreed "that a brief inquiry in camera by Your Honor of the juror" would be appropriate. The district court cleared the courtroom except for counsel and questioned Juror 3 about the incident. During the questioning, Juror 3 told the court USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 5 of 19 23-12167 Opinion of the Court 5 she did not do any follow-up research on the internet about the incident or the private investigators. Juror 3 did, however, relay her contact with Bush to other jurors, who encouraged her to report it to the court. Absent their encouragement, Juror 3 "didn't know if this was like worth even bringing forward." Juror 3 repeatedly insisted she felt comfortable remaining a juror in the case and that she could continue to be fair and impartial. On Juror 3's way out of the courtroom, the district judge told her "I appreciate you," to which Juror 3 responded "No problem. Scared me. It's all good." After Juror 3 left the courtroom, the parties' counsel again agreed that "a full inquiry with the other jurors would be appropriate." Notably, Carollo's counsel complimented the district court on its questioning of Juror 3: I have to say I've done lots of these jury inquiries before. The way you handled it is exactly the way I would have expected you would do, so that kind of personality and discussion was very disarming —not disarming —very comfortable. And I think doing that with all the jurors would be appropriate. The district court then questioned each of the remaining jurors one -by -one to determine if Juror 3 shared her experience with any of them. Each juror who heard about Juror 3's contact with Bush said it did not affect his or her ability to remain impartial. Afterwards, Carollo's counsel again complimented the district court: "With regard to the inquiry, we appreciate the detail of Your USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 6 of 19 6 Opinion of the Court 23-12167 Honor's inquiry." Carollo's counsel, however, was concerned that, given the allegations in the case, the jury might believe that Carollo was behind the incident, and insisted that "any curative instruction ... would have to make clear to the jury that this incident has nothing to do with this case." Accordingly, the district court instructed the jury "that this contact had nothing to do with either party. It has nothing to do with the plaintiff, neither the defendant, Commissioner Joe Carollo, and that the contact is impermissible." Moreover, the district court repeatedly instructed the jury that the contact between Bush and Juror 3 should not affect their deliberations. Based on Bush's contact with Juror 3, Carollo moved for a mistrial orally and in writing. The district court denied Carollo's motion. After plaintiffs rested their case, Carollo moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). In that motion, Carollo argued that (1) plaintiffs failed to prove they engaged in protected speech; (2) plaintiffs failed to prove their speech was chilled; (3) plaintiffs failed to establish a causal link between Carollo's conduct and plaintiffs' alleged protected speech; and (4) plaintiffs failed to adequately prove damages. The district court denied Carollo's motion. The jury ultimately found Carollo liable for retaliating against plaintiffs in violation of the First Amendment and 42 U.S.C. § 1983. The jury awarded Fuller $8.6 million in compensatory damages and $25.7 million in punitive damages. The jury awarded Pinilla $7.3 million USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 7 of 19 23-12167 Opinion of the Court 7 in compensatory damages and $21.9 million in punitive damages. The district court entered judgment on the verdict. After the entry of judgment on the jury's verdict, Carollo renewed his motion for judgment as a matter of law under Rule 50(b) and moved for a new trial under Rule 59. In his Rule 50(b) motion, Carollo argued that (1) plaintiffs failed to prove they engaged in protected activity; (2) plaintiffs failed to prove a causal connection between their conduct and Carollo's conduct; and (3) plaintiffs failed to prove damages. In his Rule 59 motion, Carollo argued that the damages were excessive, and several errors required a new trial. Carollo also alternatively moved for remittitur under Rule 59. While Carollo's Rule 50(b) and Rule 59 motions were pending, Carollo appealed the final judgment entered on the jury's verdict. In his notice of appeal, Carollo noted in a footnote that his post -trial motions remained pending. He asked us to "permit adjudication of the pending post -trial proceedings and recognize this notice as effective to appeal the final judgment as of the last order resolving such pending post -trial motions." Subsequently, the district court denied Carollo's post -trial motions. Carollo did not file a new or amended notice of appeal following the denial. II. Discussion Carollo raises three issues on appeal: (1) whether jury tampering warranted a new trial, (2) whether he is entitled to judgment as a matter of law because plaintiffs failed to prove three elements of their claims, and (3) whether a new trial or remittitur USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 8 of 19 8 Opinion of the Court 23-12167 is warranted because the jury's awarded damages are excessive. We answer the first issue in the negative and conclude that we do not have appellate jurisdiction to address the remaining issues. A. The district court did not abuse its discretion by denying Carollo's motion for a mistrial based on purported jury tampering Carollo argues that the district court erred by denying his motion for a mistrial. He maintains that Bush's contact with Juror 3 created a presumption of prejudice that plaintiffs have not rebutted, and the district court failed to adequately investigate Bush's contact with Juror 3. Plaintiffs respond that the district court adequately investigated Bush's contact with Juror 3 and correctly concluded that the contact was fleeting and inconsequential. In reply, Carollo reiterates that the district court failed to apply a presumption of prejudice and failed to adequately investigate Bush's contact with Juror 3; thus, the presumption of prejudice was not rebutted. We agree with plaintiffs. Carollo's arguments on appeal require us to ask two questions: (1) was the district court's investigation satisfactory; and (2) if so, was the district court's denial of a mistrial, in light of the evidence uncovered, an abuse of discretion? We have explained that "[w]hen an allegation of juror misconduct arises, the court must determine whether the misconduct occurred and whether it was prejudicial." United States v. Ifediba, 46 F.4th 1225, 1238 (11th Cir. 2022).2 "A [district] court abuses its discretion and commits 2 Ifediba is a criminal case, but the same principles apply to civil juries. See, e.g., BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1471-73 (l lth USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 9 of 19 23-12167 Opinion of the Court 9 reversible error when it fails to investigate as thoroughly as the situation requires and the insufficient investigation prejudices the defendant." Id. "When a party makes a colorable showing of extrinsic influence, the court must investigate to determine whether the influence was prejudicial." Id. at 1239 (quotation omitted). Once the district court concludes its investigation, "the factual determination of whether consideration of extrinsic evidence caused the defendant prejudice is committed to the trial court's large discretion." United States v. Ronda, 455 F.3d 1273, 1301 (11th Cir. 2006) (alteration adopted) (quotations omitted). Turning to the quality of the district court's investigation of extrinsic contact with a juror, after examining the specific circumstances of the alleged extrinsic influence, we have approved of district courts' investigations where, for example, (1) the parties agreed to the method and thoroughness of the investigation, see Ifediba, 46 F.4th at 1240; (2) the district court individually questioned the affected juror and every other juror, see United States v. Khanani, 502 F.3d 1281, 1291-92 (l lth Cir. 2007); Ronda, 455 F.3d at 1300;3 (3) each juror gave assurances that he or she could remain impartial, see Khanani, 502 F.3d at 1292; and (4) the district court collectively instructed the jury to remain impartial, see Ifediba, 46 Cir. 1992) (relying, in a civil case, on criminal precedents for the law governing jurors' consideration of extrinsic evidence). The parties agree that it is appropriate for us, in this civil case, to look to criminal cases for guidance on alleged juror misconduct. 3 We have emphasized, however, that "individual questioning of the jury is not to be undertaken lightly" or in every case. Ifediba, 46 F.4th at 1241. USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 10 of 19 10 Opinion of the Court 23-12167 F.4th at 1240-41; Ronda, 455 F.3d at 1300. By contrast, in a case involving attempted jury tampering, we have disapproved of the thoroughness of a district court's investigation where the court failed to question each juror about whether the contacted juror shared any "extraneous prejudicial material" with them. United States v. Forrest, 620 F.2d 446, 449, 456-58 (5th Cir. 1980).4 Here, the district court's investigation was "as thorough[] as the situation require[d]." Ifediba, 46 F.4th at 1238. First, the parties agreed on the method of questioning, and the district court proceeded to question Juror 3 individually. See id. at 1240. Then, the district court —again at the urging of the parties —questioned every other juror individually to determine if Juror 3 said anything to them about her contact with Bush. See Khanani, 502 F.3d at 1291-92; Ronda, 455 F.3d at 1300; cf. Forrest, 620 F.2d at 457-58 (remanding for questioning of the other jurors). Each juror who heard about Juror 3's contact with Bush assured the court that the incident would not affect his or her impartiality. Juror 3 gave repeated, similar assurances: she still felt "comfortable being a juror" in the case, she "[a]bsolutely" could "continue to be fair and impartial," she "[a]bsolutely" could follow the court's instructions to "disregard" the incident, and she insisted the incident was "not impacting [her] ability" to be fair and impartial to both sides of the case. See Khanani, 502 F.3d at 1292 ("The court questioned Juror H 4 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding all Fifth Circuit precedent handed down prior to October 1, 1981. USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 11 of 19 23-12167 Opinion of the Court 11 twice; both times she confirmed that her experience had not affected her deliberations."). Indeed, Juror 3 was so unfazed that she questioned whether this incident was "worth even bringing forward" to the court's attention. Finally, the district court issued a curative instruction to the jury to disregard the incident entirely. See Ronda, 455 F.3d at 1300; Ifediba, 46 F.4th at 1240. Accordingly, we conclude that the district court sufficiently investigated Carollo's claims of jury tampering.5 Carollo resists this conclusion and argues that the district court should have questioned Bush himself, otherwise the court received "only half of the story." Carollo, however, fails to explain how such questioning would have been relevant. After all, an inquiry into whether contact was "prejudicial" means determining whether the jury was affected by the contact. See Ifediba, 46 F.4th at 1238. Regardless of the evidence Bush might have supplied to the district court, such evidence is irrelevant in light of the jurors' individual responses that the contact had no effect on them 5 After all, even Carollo's own trial counsel commended the district court on the thoroughness of its inquiry, stating: "I have to say I've done lots of these jury inquiries before. The way you handled [questioning Juror 3] is exactly the way I would have expected you would do .... And I think doing that with all the jurors would be appropriate." Counsel further stated that "[w]ith regard to the inquiry, we appreciate the detail of Your Honor's inquiry." See also Ifediba, 46 F.4th at 1240 ("Significantly, Ifediba's counsel agreed to the court's proposed method of questioning the alternate [juror] and declined the opportunity to request a sidebar during her questioning or ask further questions."). USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 12 of 19 12 Opinion of the Court 23-12167 whatsoever. Thus, the district court did not err in its investigation by declining to call Bush in to testify. And once the district court completed its sufficiently thorough investigation, it did not err by denying Carollo's motion for a mistrial because the purported extrinsic contact was not prejudicial. See Ifediba, 46 F.4th at 1238, 1241 & n.8. The parties vigorously dispute whether a "presumption of prejudice" attached to Bush's contact with Juror 3 in this case. We assume without deciding that the presumption of prejudice attached, but we conclude that the presumption was rebutted in this case. In Remmer v. United States, the Supreme Court declared that " [i]n a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is ... deemed presumptively prejudicial." 347 U.S. 227, 229 (1954). Accordingly, we have repeatedly applied a presumption of prejudice where extrinsic contact with a juror —that is, discussions about the case between a juror and a non -juror —occurs. See Forrest, 620 F.2d at 457; United States v. Caporale, 806 F.2d 1487, 1502-03 (11th Cir. 1986); United States v. Spurlock, 811 F.2d 1461, 1463 (11th Cir. 1987); United States v. Martinez, 14 F.3d 543, 550 (llth Cir. 1994); Khanani, 502 F.3d at 1291-92; Boyd v. Allen, 592 F.3d 1274, 1305 (11th Cir. 2010). Once the presumption of prejudice attaches, the plaintiff may rebut it by "show[ing] that the jurors' consideration of extrinsic evidence was harmless to the defendant." Boyd, 592 F.3d at 1305. "We consider the totality of the circumstances USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 13 of 19 23-12167 Opinion of the Court 13 surrounding the introduction of the extrinsic evidence to the jury," and the relevant factors "include: (1) the nature of the extrinsic evidence; (2) the manner in which the information reached the jury; (3) the factual findings in the trial court and the manner of the court's inquiry into the juror issues; and (4) the strength of the [plaintiffs] case." Id. As mentioned, we assume without deciding that the presumption of prejudice attached in this case. Turning to whether the presumption was rebutted, our decision in Ronda illustrates why the contact between Bush and Juror 3 was harmless. In Ronda, we concluded that "the nature of the extrinsic evidence and the district court's thorough and careful response to that evidence convince[d] us that the presumption of prejudice ha[d] been clearly rebutted." 455 F.3d at 1300. We came to that conclusion because (1) a juror who did impermissible research did not convey any substantive information from that research to any other juror, (2) none of the jurors thought that a burglary that happened at another juror's house was "in any way related to the trial," (3) the district court instructed the jury to disregard the burglary entirely, and (4) the district court re-emphasized to the jury to stay impartial during deliberations. Id. Similarly, in this case the contact between Bush and Juror 3 had no connection to the subject matter of the trial. None of the jurors, including Juror 3, felt that the incident affected their ability to be fair and impartial in any way. And the district court emphasized that the jury should disregard the incident and remain USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 14 of 19 14 Opinion of the Court 23-12167 fair and impartial to both sides. On these facts, the presumption of prejudice has been rebutted. See id. The contact between Bush and Juror 3 was harmless. Carollo's arguments to the contrary are meritless. Carollo argues that he was prejudiced because (1) Bush had a vested interest in the outcome of the case, (2) Bush continued to appear at trial, and (3) Juror 3 remained and served as the foreperson of the jury instead of being dismissed. As for Bush's interest in the outcome of the case, this argument again says nothing about the effect of Bush's contact with Juror 3 on the jury; it is irrelevant. As for Carollo's argument about Bush's attendance at trial, the evidence he cites for that argument establishes only that Juror 3 had seen Bush at trial before her contact with him; not after. And lastly, the cases Carollo cites to argue that Juror 3 should have been dismissed (rather than remaining and serving as foreperson) are materially distinguishable. The dismissed jurors in the cited cases were either victims of a crime they ascribed to a particular party, see id. at 1297, or were actively disobeying the district court's instructions through their own conduct, see United States v. Rowe, 906 F.2d 654, 655-56 (llth Cir. 1990); United States v. Gabay, 923 F.2d 1536, 1542 (llth Cir. 1991). Here, by contrast, Juror 3 made clear that although Bush's contact with her made her mildly uncomfortable, she was otherwise unfazed and ready to perform her duties. Accordingly, none of Carollo's arguments USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 15 of 19 23-12167 Opinion of the Court 15 demonstrates an abuse of the district court's discretion in the handling of Juror 3.6 In sum, the district court properly responded to and investigated Juror 3's contact with Bush. And once it completed that investigation, the district court took appropriate measures to ensure the jury remained fair and impartial to both parties. Accordingly, Carollo fails to demonstrate an abuse of "the trial court's large discretion." Ronda, 455 F.3d at 1301. Thus, we affirm the denial of Carollo's motions for a mistrial premised on Bush's contact with Juror 3. B. We do not have appellate jurisdiction to address Carollo's remaining issues on appeal Carollo seeks appellate review of the district court's denial of his motions for judgment as a matter of law, new trial, and remittitur. His lone notice of appeal in this case, however, did not give us jurisdiction over the district court's denial of those motions. 6 Carollo also argues that the district court impermissibly barred him from discussing, during the presentation of evidence, how Bush purportedly harassed him during the underlying events of the case. Once again, this argument fails to demonstrate how or why Bush's contact with Juror 3 rendered any juror impartial. To the extent Carollo is making a standalone argument that the district court's exclusion of Bush -related evidence was error, Carollo offers no coherent argument as to why the district court in this case —which was about whether Carollo harassed Fuller and Pinilla—should have permitted the introduction of evidence about whether another person — who was neither a party nor a witness —harassed Carollo. USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 16 of 19 16 Opinion of the Court 23-12167 Federal Rule of Appellate Procedure 4 governs when and how a party may file a notice of appeal. As relevant to this case, Rule 4 provides that if a party timely moves in the district court "for judgment under Rule 50(b)," "to alter or amend the judgment under Rule 59," or "for a new trial under Rule 59," then the time to file an appeal does not begin to run until the district court enters "the order disposing of the last such remaining motion." Fed. R. App. P. 4(a)(4)(A)(i), (iv), (v). Nevertheless, a party may "file[] a notice of appeal after the [district] court announces or enters a judgment[] but before it disposes of' the listed motions. Fed. R. App. P. 4(a)(4)(B)(i); see also Weatherly v. Ala. State Univ., 728 F.3d 1263, 1271 (11th Cir. 2013) ("[P]arties who file timely post -trial motions for relief under Federal Rules of Civil Procedure 50(b) and 59(b) are not required to wait until the district court provides a ruling on that motion before they appeal the final judgment."). When a party does so, his "notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered." Fed. R. App. P. 4(a)(4)(B)(i). The Rule 4 provision that a party may appeal a judgment while his post -trial motions remain pending has an important caveat, however, in Rule 3. If a party appeals a final judgment before the disposition of his post -trial motions, and he also wishes to appeal the district court's subsequent disposition of his post -trial motions, then he "must file a [timely] notice of appeal, or an amended notice of appeal —in compliance with Rule 3(c)" designating that subsequent disposition for appeal. Fed. R. App. P. USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 17 of 19 23-12167 Opinion of the Court 17 4(a)(4)(B)(ii); see also Parrish v. United States, 145 S. Ct. 1664, 1675 (2025) ("Someone who wishes to appeal not only the original judgment, but also the substance of an order resolving the post - trial motion, must file a notice of appeal, or an amended notice of appeal, after the entry of the order disposing of that motion." (quotation omitted)); Weatherly, 728 F.3d at 1271 ("In order to seek appellate review of the district court's order on said motion, however, the appealing party is required to file a separate notice of appeal or amend its original notice to designate the motion as subject to appeal."). To comply with Rule 3(c), a notice of appeal must "designate an existent judgment or order, not one that is merely expected or that is, or should be, within the appellant's contemplation when the notice of appeal is filed." Bogle v. Orange Cnty. Bd. of Cnty. Comm'rs, 162 F.3d 653, 661 (11th Cir. 1998); see also Fed. R. App. P. 3(c)(1)(B) ("The notice of appeal must:... designate the judgment —or the appealable order —from which the appeal is taken ...."). If the party fails to file a notice of appeal that complies with Rules 3(c) and 4(a)(4)(B)(ii), then "we do not have jurisdiction to decide" whether the district court correctly ruled on the post - trial motions. Weatherly, 728 F.3d at 1272. In this case, the district court entered final judgment on the jury's verdict on June 1, 2023. Carollo filed his post -trial motions for a new trial, remittitur, and judgment as a matter of law on June 28, 2023. The next day, Carollo appealed the already -entered final judgment. The district court did not deny Carollo's motions for new trial, remittitur, and judgment as a matter of law until USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 18 of 19 18 Opinion of the Court 23-12167 February 21, 2024.7 Under Rule 3(c), Carollo's notice of appeal did not suffice to appeal that denial order because the post judgment denial order did not exist when the notice of appeal was filed. See Bogle, 162 F.3d at 661. Moreover, Carollo did not file a separate or amended notice of appeal from the denial order, and the time for Carollo to do so has expired. See Fed. R. App. P. 4(a)(1)(A) (requiring a notice of appeal to be filed "within 30 days after entry of the judgment or order appealed from"). Because Carollo did not file any notice of appeal from the district court's denial of his post - trial motions that complied with Rule 3(c), Carollo also failed to comply with Rule 4(a)(4)(B)(ii), which requires "compliance with Rule 3(c)." Fed. R. App. P. 4(a)(4)(B)(ii). Accordingly, we do not have jurisdiction over Carollo's appeal from the district court's denial of his post -trial motions. Weatherly, 728 F.3d at 1272, 1274. Thus, we must dismiss the remainder of Carollo's appeal. See id. at 1274. 7 The district court denied Carollo's Rule 50(a) motion for judgment as a matter of law during the trial and prior to the entry of judgment. But we are "deprive[d] ... of the power to order the entry of judgment in favor" of a party unless the party renews its Rule 50(a) motion under Rule 50(b). Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 401 (2006). Accordingly, our review turns solely on whether Carollo properly appealed the denial of his Rule 50(b) motion, because we cannot grant relief on the denial of his Rule 50(a) motion alone. See id. USCA11 Case: 23-12167 Document: 55-1 Date Filed: 07/17/2025 Page: 19 of 19 23-12167 Opinion of the Court 19 III. Conclusion For the foregoing reasons, we affirm the district court's denial of Carollo's motion for a mistrial and dismiss the remainder of Carollo's appeal for lack of appellate jurisdiction. AFFIRMED IN PART AND DISMISSED IN PART.