Perkins v. Daybrook Fisheries

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
September 16, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30985
Summary Calendar
JAMES A. PERKINS,
Plaintiff-Appellant,
versus
DAYBROOK FISHERIES, INC.,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CV-3165-A
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
James A. Perkins, a crew member of the F/V SEA WASP, appeals
from the jury's verdict of no Jones Act liability, no
unseaworthiness, and no obligation to pay maintenance and cure in
favor of Daybrook Fisheries, Inc., and from the district court's
denial of his motion for judgment as a matter of law or,
alternatively, for a new trial. Although Perkins moved for
judgment as a matter of law post-verdict, he did not move for
judgment pursuant to FED. R. CIV. P. 50(a) at the close of

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No. 02-30985
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evidence. Therefore, review of the sufficiency of the evidence
should be limited to plain error. See United States ex rel.
Wallace v. Flintco, Inc., 143 F.3d 955, 960 (5th Cir. 1998);
Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 397 n.2 (5th Cir.
1995). Review of the denial of a new trial is for abuse of
discretion. See Hidden Oaks Ltd. v. City of Austin, 138 F.3d
1036, 1049 (5th Cir. 1998).
Perkins argues that the overwhelming weight of the evidence
required a judgment in his favor that 1) he should have received
maintenance and cure for a back injury as a result of a fall on
June 1, 1999; 2) he should have received maintenance for a finger
injury sustained on October 12, 1999; 3) the defendant's
negligence caused his June 1, 1999, injury; and 4) the boat was
unseaworthy on June 1, 1999. Our review of the record reveals
that even under the usual standard of review, there was
sufficient evidence to support the jury's verdict, and there was
no plain error. Daigle, 70 F.3d at 397 n.2. The district court
did not abuse its discretion in denying a new trial.
AFFIRMED.

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