Case: 16-12347 Date Filed: 10/17/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-12347 Non-Argument Calendar ________________________
D.C. Docket No. 1:14-cv-23235-KMW
HENRY TIEN,
Plaintiff-Appellant,
versus
RED COATS, INC., d.b.a. Admiral Security Services, INSURANCE COMPANIES FOR RED COATS, INC., ADMIRAL SECURITY SERVICES, CONTINENTAL CASUALTY COMPANY,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(October 17, 2018)
Before MARCUS, NEWSOM and HULL, Circuit Judges.
PER CURIAM: Case: 16-12347 Date Filed: 10/17/2018 Page: 2 of 6
Henry Tien, proceeding pro se, appeals a jury verdict in favor of the
defendant, Red Coats, Inc., d.b.a. Admiralty Security Services (“RCI”). This case
arose from an unrelated federal lawsuit when Tien had gone to a law office to take
a deposition and became agitated, yelling and carrying a metal folding chair.
While being forcibly removed from the building by an RCI security officer, he was
allegedly injured. At trial, a jury found that RCI’s security officer had committed
battery, but that the battery was justified by self-defense or defense of others. On
appeal, Tien argues that: (1) the court erred by excluding some of his witnesses at
trial who would have testified about the security officer’s reputation and specific
past acts, and by refusing to sanction RCI for spoliation; and (2) the jury’s verdict
should be overturned.1 After careful review, we affirm.
We review a district court’s evidentiary and spoliation sanctions rulings for
abuse of discretion, and will only reverse if the district court made a clear error of
judgment or applied the wrong legal standard. ML Healthcare Servs., LLC v.
Publix Super Markets, Inc., 881 F.3d 1293, 1297–98 (11th Cir. 2018). We will not
reverse a jury verdict based on a district court’s evidentiary ruling unless it is
manifestly erroneous. U.S. SEC v. Big Apple Consulting USA, Inc., 783 F.3d 786,
810 (11th Cir. 2015). Where a party failed to object to an evidentiary ruling, we
1 We acknowledge that Tien raises additional arguments concerning whether he moved to amend his complaint a third time and whether he should have been able to seek damages for lost or diminished future earning capacity, but we conclude that these arguments are meritless and warrant no further discussion. 2 Case: 16-12347 Date Filed: 10/17/2018 Page: 3 of 6
review for plain error. Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179
(11th Cir. 2002). To establish plain error, a party must show (1) an error, (2) that
is plain, and (3) that affected his substantial rights. United States v. Turner, 474
F.3d 1265, 1276 (11th Cir. 2007). If the party satisfies these conditions, we may
exercise our discretion to recognize the error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id. We will affirm
a jury’s verdict if “the state of the proof is such that reasonable and impartial minds
could reach the conclusion the jury expressed in its verdict.” Meeks v. Computer
Assocs. Int’l, 15 F.3d 1013, 1016 (11th Cir. 1994) (quoting Deakle v. John E.
Graham & Sons, 756 F.2d 821, 827 (11th Cir. 1985). If there is competent
evidence in the record to support the verdict, it should not be disturbed. Id.
First, we are unpersuaded by Tien’s challenges to the evidentiary rulings. It
is true that all relevant evidence, or evidence that makes a fact of consequence
more or less probable, is generally admissible at trial. Fed. R. Evid. 401, 402.
However, evidence of a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the
character or trait, except that a witness’s credibility may be attacked or supported
by testimony about the witness’s reputation for truthfulness or untruthfulness, or
testimony in the form of an opinion about that character. Fed. R. Evid. 404(a),
608(a). Extrinsic evidence is not admissible to prove specific instances of a
3 Case: 16-12347 Date Filed: 10/17/2018 Page: 4 of 6
witness’s conduct in order to attack or support the witness’s character for
truthfulness, unless the evidence is of a criminal conviction. Fed. R. Evid. 608(b).
When a party alleges that spoliation of evidence has occurred, a court should
ask whether sanctions -- including adverse inferences and the exclusion of
evidence -- are warranted, based on (1) whether the party seeking sanctions was
prejudiced and whether any prejudice was curable, (2) the practical importance of
the evidence, (3) whether the spoliating party acted in bad faith, and (3) the
potential for abuse if sanctions are not imposed. ML Healthcare Servs., 881 F.3d
at 1307. If electronically stored information has not been preserved, a court may
cure any prejudice and, upon finding that the spoliating party acted with bad faith,
(1) presume the lost evidence was unfavorable to the spoliating party, (2) instruct
the jury that it may or must presume the evidence was unfavorable to the spoliating
party, or (3) dismiss the action or enter a default judgment. Fed. R. Evid. 37(e).
In ML Healthcare Services, we determined that a district court had not
abused its discretion by not issuing an adverse inference instruction or excluding
evidence when a defendant provided the plaintiff with the most relevant portion of
surveillance footage, which was an hour long. Id. at 1308–09. We also held that
the defendant had not acted in bad faith, because there was no indication that the
remaining footage was destroyed in a manner inconsistent with normal business
practices, or that the remaining footage resolved a crucial issue. Id.
4 Case: 16-12347 Date Filed: 10/17/2018 Page: 5 of 6
As a general rule, an appellant is responsible for “presenting a record that is
sufficient to allow [us] to decide the issues presented by the appeal.” Mandel v.
Max-France, Inc., 704 F.2d 1205, 1206 (11th Cir. 1983) (citing Fed. R. App. P.
10(b)). The Federal Rules of Appellate Procedure specify that if an appellant
intends to urge on appeal that a finding or conclusion is unsupported by the
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Case: 16-12347 Date Filed: 10/17/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-12347 Non-Argument Calendar ________________________
D.C. Docket No. 1:14-cv-23235-KMW
HENRY TIEN,
Plaintiff-Appellant,
versus
RED COATS, INC., d.b.a. Admiral Security Services, INSURANCE COMPANIES FOR RED COATS, INC., ADMIRAL SECURITY SERVICES, CONTINENTAL CASUALTY COMPANY,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(October 17, 2018)
Before MARCUS, NEWSOM and HULL, Circuit Judges.
PER CURIAM: Case: 16-12347 Date Filed: 10/17/2018 Page: 2 of 6
Henry Tien, proceeding pro se, appeals a jury verdict in favor of the
defendant, Red Coats, Inc., d.b.a. Admiralty Security Services (“RCI”). This case
arose from an unrelated federal lawsuit when Tien had gone to a law office to take
a deposition and became agitated, yelling and carrying a metal folding chair.
While being forcibly removed from the building by an RCI security officer, he was
allegedly injured. At trial, a jury found that RCI’s security officer had committed
battery, but that the battery was justified by self-defense or defense of others. On
appeal, Tien argues that: (1) the court erred by excluding some of his witnesses at
trial who would have testified about the security officer’s reputation and specific
past acts, and by refusing to sanction RCI for spoliation; and (2) the jury’s verdict
should be overturned.1 After careful review, we affirm.
We review a district court’s evidentiary and spoliation sanctions rulings for
abuse of discretion, and will only reverse if the district court made a clear error of
judgment or applied the wrong legal standard. ML Healthcare Servs., LLC v.
Publix Super Markets, Inc., 881 F.3d 1293, 1297–98 (11th Cir. 2018). We will not
reverse a jury verdict based on a district court’s evidentiary ruling unless it is
manifestly erroneous. U.S. SEC v. Big Apple Consulting USA, Inc., 783 F.3d 786,
810 (11th Cir. 2015). Where a party failed to object to an evidentiary ruling, we
1 We acknowledge that Tien raises additional arguments concerning whether he moved to amend his complaint a third time and whether he should have been able to seek damages for lost or diminished future earning capacity, but we conclude that these arguments are meritless and warrant no further discussion. 2 Case: 16-12347 Date Filed: 10/17/2018 Page: 3 of 6
review for plain error. Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179
(11th Cir. 2002). To establish plain error, a party must show (1) an error, (2) that
is plain, and (3) that affected his substantial rights. United States v. Turner, 474
F.3d 1265, 1276 (11th Cir. 2007). If the party satisfies these conditions, we may
exercise our discretion to recognize the error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id. We will affirm
a jury’s verdict if “the state of the proof is such that reasonable and impartial minds
could reach the conclusion the jury expressed in its verdict.” Meeks v. Computer
Assocs. Int’l, 15 F.3d 1013, 1016 (11th Cir. 1994) (quoting Deakle v. John E.
Graham & Sons, 756 F.2d 821, 827 (11th Cir. 1985). If there is competent
evidence in the record to support the verdict, it should not be disturbed. Id.
First, we are unpersuaded by Tien’s challenges to the evidentiary rulings. It
is true that all relevant evidence, or evidence that makes a fact of consequence
more or less probable, is generally admissible at trial. Fed. R. Evid. 401, 402.
However, evidence of a person’s character or character trait is not admissible to
prove that on a particular occasion the person acted in accordance with the
character or trait, except that a witness’s credibility may be attacked or supported
by testimony about the witness’s reputation for truthfulness or untruthfulness, or
testimony in the form of an opinion about that character. Fed. R. Evid. 404(a),
608(a). Extrinsic evidence is not admissible to prove specific instances of a
3 Case: 16-12347 Date Filed: 10/17/2018 Page: 4 of 6
witness’s conduct in order to attack or support the witness’s character for
truthfulness, unless the evidence is of a criminal conviction. Fed. R. Evid. 608(b).
When a party alleges that spoliation of evidence has occurred, a court should
ask whether sanctions -- including adverse inferences and the exclusion of
evidence -- are warranted, based on (1) whether the party seeking sanctions was
prejudiced and whether any prejudice was curable, (2) the practical importance of
the evidence, (3) whether the spoliating party acted in bad faith, and (3) the
potential for abuse if sanctions are not imposed. ML Healthcare Servs., 881 F.3d
at 1307. If electronically stored information has not been preserved, a court may
cure any prejudice and, upon finding that the spoliating party acted with bad faith,
(1) presume the lost evidence was unfavorable to the spoliating party, (2) instruct
the jury that it may or must presume the evidence was unfavorable to the spoliating
party, or (3) dismiss the action or enter a default judgment. Fed. R. Evid. 37(e).
In ML Healthcare Services, we determined that a district court had not
abused its discretion by not issuing an adverse inference instruction or excluding
evidence when a defendant provided the plaintiff with the most relevant portion of
surveillance footage, which was an hour long. Id. at 1308–09. We also held that
the defendant had not acted in bad faith, because there was no indication that the
remaining footage was destroyed in a manner inconsistent with normal business
practices, or that the remaining footage resolved a crucial issue. Id.
4 Case: 16-12347 Date Filed: 10/17/2018 Page: 5 of 6
As a general rule, an appellant is responsible for “presenting a record that is
sufficient to allow [us] to decide the issues presented by the appeal.” Mandel v.
Max-France, Inc., 704 F.2d 1205, 1206 (11th Cir. 1983) (citing Fed. R. App. P.
10(b)). The Federal Rules of Appellate Procedure specify that if an appellant
intends to urge on appeal that a finding or conclusion is unsupported by the
evidence, the appellant must include in the record a transcript of all evidence
relevant to that finding or conclusion. Fed. R. App. P. 10(b)(2). We’ve explained
that the appellant has the burden “to ensure the record on appeal is complete, and
where a failure to discharge that burden prevents us from reviewing the district
court’s decision we ordinarily will affirm the judgment.” Selman v. Cobb Cty.
Sch. Dist., 449 F.3d 1320, 1333 (11th Cir. 2006) (describing the “absence-equals-
affirmance rule”); Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002) (applying
the requirements of Fed. R. App. P. 10(b)(2) and to pro se appellants).
Here, Tien proceeded to trial below, where a jury entered a verdict in favor
of RCI, but Tien has failed to provide us with transcripts of any oral proceedings
below. The absence of a transcript precludes us from conducting meaningful
appellate review as to why the district court ultimately excluded some of Tien’s
witnesses, whether it actually excluded others, and whether the issue of spoliation
was actually brought to its attention. See Selman, 449 F.3d at 1333. Accordingly,
we affirm the district court’s evidentiary rulings on this basis. See id.
5 Case: 16-12347 Date Filed: 10/17/2018 Page: 6 of 6
We also reject Tien’s challenge to the jury verdict. Under Florida law,
battery is the infliction of a harmful or offensive contact upon another with the
intent to cause such contact or the apprehension that such contact is imminent.
Quilling v. Price, 894 So. 2d 1061, 1063 (Fla. Dist. Ct. App. 2005). A person may
use non-deadly, reasonable force against another as necessary to defend himself or
another against the other’s imminent use of unlawful force. Fla. Stat. § 776.012.
Once again, however, the absence of a transcript precludes us from
conducting meaningful appellate review as to what evidence was presented to the
jury and whether it supported the jury’s verdict. See Selman, 449 F.3d at 1333;
Meeks, 15 F.3d at 1016. Accordingly, we affirm on this issue as well. See
Selman, 449 F.3d at 1333.
AFFIRMED.