Belcalis Marlenis Almanzar v. Latasha Transrina Kebe

USCA11 Case: 22-12512 Document: 27-1 Date Filed: 03/21/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12512
Non-Argument Calendar
____________________
BELCALIS MARLENIS ALMANZAR,
Plaintiff-Counter Defendant-Appellee,
versus
LATASHA TRANSRINA KEBE,
a.k.a. Latasha Transrina Howard,
Defendant-Counter Claimant-Appellant,
STARMARIE EBONY JONES,
Defendant,
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2 Opinion of the Court 22-12512
KEBE STUDIOS LLC,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-01301-WMR
____________________
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
There are two issues here. One is whether the jury had suf-
ficient evidence to hold appellants—Latasha Kebe and others—lia-
ble for defamation (and other privacy torts) against appellee
Belcalis Almanzar (better known as ‘Cardi B’). The other is
whether the district court erred by excluding evidence. We hold
that Kebe hasn’t preserved either issue for appeal.
A
“[A] party is not entitled to pursue a new trial on appeal un-
less that party makes an appropriate postverdict motion in the dis-
trict court.” Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546
U.S. 394, 404 (2006). A party can make that kind of post-verdict
motion under either Rule 50(b) or Rule 59 of the Federal Rules of
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22-12512 Opinion of the Court 3
Civil Procedure. See id. at 396 (noting that the respondent filed
neither a Rule 50(b) nor a Rule 59 motion). Rule 50(b) “sets forth
the procedural requirements for renewing a sufficiency of the evi-
dence challenge after the jury verdict and entry of judgment.” Id.
at 400. Rule 59 allows district judges to order new trials “for any
reason for which a new trial has heretofore been granted in an ac-
tion at law in federal court.” Fed. R. Civ. P. 59(1)(A). When a party
fails to invoke these rules in the district court, we “ha[ve] no au-
thority to consider [an] appeal from the jury verdict.” Hi Ltd.
P’ship v. Winghouse of Fla., Inc., 451 F.3d 1300, 1302 (11th Cir.
2006).
Defendant Latasha Kebe asks for a new trial, saying that
there was insufficient evidence for the jury verdict against her. But
as she all but admits, she didn’t make either of the required post-
verdict motions in the district court. As a result, we have no au-
thority to consider her insufficiency-of-the-evidence argument on
appeal.
Kebe’s response is unavailing. She seems to assert that she
can seek a new trial on appeal not because she did so below, but
rather because she didn’t. She seeks to distinguish her case from
Unitherm on the ground that, unlike the losing party there, she
didn’t even make a pre-verdict insufficiency-of-the-evidence mo-
tion, let alone a post-verdict one. So while she apparently (and cor-
rectly) accepts that making one pre-verdict insufficiency-of-the-ev-
idence motion isn’t enough to preserve the right to challenge the
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4 Opinion of the Court 22-12512
sufficiency of the evidence on appeal, she seems to think that one
can preserve that right by making no insufficiency motions at all.
That is incorrect. Under Unitherm, a party “forfeit[s] its
right to [seek a new trial] on appeal” if it “never sought a new trial
before the District Court.” 546 U.S. at 404. The only way to seek
a new trial before the district court is through a post-verdict mo-
tion; a pre-verdict motion won’t do. Id. (explaining that a party
can’t seek a new trial through a pre-verdict motion). So Kebe gains
nothing by pointing out that she never made a pre-verdict insuffi-
ciency-of-the-evidence motion. All that matters is that she “never
sought a new trial before the District Court” through a post-verdict
motion and has “thus forfeited [her] right to do so on appeal.” Id.B
Kebe also failed to preserve her evidentiary arguments. “[A]
party cannot argue an issue in its reply brief that was not preserved
in its initial brief.” Tallahassee Mem’l Reg’l Med. Ctr. v.
Bowen, 815 F.2d 1435, 1446 n.16 (11th Cir.1987). An appellant fails
to preserve an issue when, in her opening appellate brief, she “ei-
ther makes only passing references to it or raises it in a perfunctory
manner without supporting arguments and authority.” Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). “An
appellant’s brief must include an argument containing ‘appellant’s
contentions and the reasons for them, with citations to the author-
ities and parts of the record on which the appellant relies.’” Singh
v. U.S. Atty. Gen., 561 F.3d 1275, 1278 (11th Cir. 2009) (quoting
Fed. R. App. P. 28(a)(9)(A)) (emphasis added). “If an argument is
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22-12512 Opinion of the Court 5
not fully briefed (let alone not presented at all) to the Circuit Court,
evaluating its merits would be improper both because the appel-
lants may control the issues they raise on appeal, and because the
appellee would have no opportunity to respond to it.” Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
Kebe didn’t adequately brief her challenges to the district
court’s evidentiary rulings. Specifically, she never tells us where in
the 5500-page record the district court’s alleged errors can be
found. That lapse violates the rule that appellants must identify the
“parts of the record on which [they] rel[y].” Singh, 561 F.3d at 1278(quoting Fed. R. App. P. 28(a)(9)(A)). Because Kebe’s brief falls well
short of what we require, she has abandoned this argument.
AFFIRMED.