Full opinion text
MEMORANDUM OPINION AND ORDER ON DEFENDANT’S PARTIAL MOTION FOR JUDGMENT AS A MATTER OF LAW OR IN THE ALTERNATIVE, MOTION FOR PARTIAL NEW TRIAL OR REMITTITUR OF PUNITIVE DAMAGES VERDICT AND JUDGMENT; PLAINTIFFS’ MOTION TO MAKE ADDITIONAL FINDINGS; AND PLAINTIFFS’ APPLICATION FOR ATTORNEY’S FEES BENNETT, Chief Judge. TABLE OF CONTENTS I. FACTUAL AND PROCEDURAL BACKGROUND.848 II. LEGAL ANALYSIS.852 A. Motion For Partial Judgment As A Matter of Law.852 1. Arguments of the Parties.852 2. Standards.853 a. Rule 50.853 b. Rule 51.858 3. Plain Error Review.859 a. Employer liability .860 b. Jury instructions .863 B. Motion For Partial New Trial or Remittitur .866 1. Standards.866 a. Rule 59.866 b. Constitutionally excessive verdict v. remittitur.867 2. New trial.868 3. Remittitur.!_870 4. Constitutionality.870 a. Standard.870 b. Analysis under the Gore guideposts.871 i. Reprehensibility .872 ii. Proportionality.873 Hi. Comparable civil or criminal penalties.875 iv. Resolution.876 C. Plaintiffs’ Motion to Make Additional Findings.876 D. Plaintiffs ’ Application For Attorney’s Fees.880 1. Applicable Standards.881 2. Reasonable hourly rate.881 3. Hours reasonably expended.883 4. Recoverable costs and expenses .885 III. CONCLUSION.885 After a two-day jury trial in this racial discrimination in a public accommodation case at a local Sioux City restaurant, the jury returned a verdict in favor of the four individual plaintiffs. The jury awarded each plaintiff $1.00 in nominal damages and $12,500.00 in punitive damages. The jury apparently determined that the plaintiffs did not suffer any emotional distress damages resulting from the defendant’s unlawful conduct. A number of post-trial motions followed the jury’s disposition of this case. The defendant takes issue with the amount of punitive damages awarded, in relationship to the amount of compensatory damages awarded, and seeks judgment as a matter of law and/or a new trial on the issue of punitive damages, or alternatively that the court order a remittitur of the punitive damages. Predictably, the plaintiffs resist the defendant’s motion on all grounds. Also at issue are the plaintiffs’ application for attorney’s fees and costs and the plaintiffs’ motion requesting the court amend the judgment and order injunctive relief. Both of plaintiffs’ motions are resisted by the defendant. I. FACTUAL AND PROCEDURAL BACKGROUND This case stems from a single incident occurring at The Horizons Family Restaurant on June 23, 2001. In the early morning of June 23, 2001, Kenneth Sherman, Donald McNeal, Armondo Barker and Tonyell McNeal (“plaintiffs”), planned to leave from the Club 712 for The Horizons Family Restaurant. The outing was spurred by the impending wedding of plaintiff Kenneth Sherman later that afternoon — the four intended the outing to The Horizons Family Restaurant to eat a meal to constitute Sherman’s bachelor party. The bachelor party outing to The Horizons Family Restaurant did not commence until the wee morning hours of June 23, 2001, for the reason that three of the plaintiffs— Donald McNeal, Armondo Barker and Tonyell McNeal — were working at Club 712 that night and had to close the club down before they could leave. Kenneth Sherman arrived at the club around 10:00 p.m. on the evening of June 22, 2001, and hung out there until the other three plaintiffs were done with their work duties. At approximately 3:30 a.m. the plaintiffs left the 712 Club and went to The Horizons Family Restaurant for a meal. Upon entering The Horizons Family Restaurant the plaintiffs were greeted by a host. The plaintiffs formed a single file line behind the host, and the host began to lead the plaintiffs over to a particular section of the restaurant to be seated. As the group, following the hostess, approached the section the waiter for that section stood up in front of the hostess, spread his arms out so as to block passage into the section, and told the hostess: “I told you about bringing all these niggers over here.” The host stepped back and asked the waiter to repeat himself, to which the waiter repeated what he had just said. The plaintiffs’ immediate responses to these comments were varied; Donald McNeal and Tonyell McNeal turned away and stood off to the side, while Kenneth Sherman and Ricky Warren held Armondo Barker back from attempting to physically harm the waiter. The waiter then made a comment to the effect of “that is what’s wrong with you people.” Those present to witness the incident included the host, the waiter, the shift supervisor and an off-duty police officer. Sioux City Police Officer David Mentzer, who was off-duty at the time but was contracted by The Horizons Family Restaurant to provide private security at the restaurant on the overnight shift on that night, testified that he overheard the waiter say the following to the plaintiffs: “we don’t serve your kind here.” The host proceeded to seat the plaintiffs in another section of the restaurant. Tonyell McNeal, visibly upset by what had transpired, left almost immediately after the group was seated. The plaintiffs then witnessed the host go back over and approach the waiter about his actions — the two apparently got in a mild shoving match over the issue. The plaintiffs testified that the host was upset, and questioned why the waiter called the plaintiffs ‘niggers.’ Officer Mentzer broke up the scuffle. Officer Mentzer then approached the plaintiffs at where they were seated and asked if they wanted to make a statement — all of the plaintiffs declined at the time. Apparently, after the plaintiffs were seated and approached by Officer Mentzer, word of the incident had spread to other restaurant employees working that night. The plaintiff Donald McNeal testified that the host’s wife, who was working in the kitchen, came out from the kitchen and started yelling and screaming at the supervisor — she was apparently upset because this particular waiter had previously made racially derogatory comments to her, her husband, and others working in the kitchen and she was wondering how long the supervisor would just sit by and let it continue to happen. Donald McNeal also testified that a cook, who was also African American, came out of the kitchen and started speaking to the supervisor about how everyone in the restaurant knew that the waiter was inclined to make racially derogatory remarks, and wondered if the fact that the waiter had now used them towards customers would spur some response on the part of management. The supervisor told both the cook and the host’s wife to go back to what they were doing. The supervisor then approached the plaintiffs’ table and explained that the waiter’s conduct was unacceptable, that the waiter would be fired and that he would take care of it that instant. The supervisor then gave the plaintiffs each a menu and informed them that their meals would be free. However, despite the promises of the supervisor, the plaintiffs never saw the supervisor approach the offending waiter — in fact, the offending waiter continued to work in his section for the duration of the time that the plaintiffs remained at The Horizons Family Restaurant that morning. Each of the plaintiffs testified that at the time they arrived at the restaurant both sections of the restaurant, the section manned by the offending waiter and the section they were actually seated in, had seating available to accommodate their party of five. After the plaintiffs were seated they noticed a segregated seating arrangement being implemented. Specifically, the plaintiffs noted that Mexican customers and an interracial couple were all seated in the same area as the plaintiffs, while four Caucasian patrons were seated in the section worked by the offending waiter. When these other patrons were seated there, again, was ample room in either section to seat them. Each of the plaintiffs ordered something, though not many of them ate any substantial amount. The remaining group — Donald McNeal, Armondo Barker and Kenneth Sherman — stayed at the restaurant for approximately 30-45 minutes before leaving. After leaving the restaurant, Donald McNeal, Armondo Barker and Kenneth Sherman went over to Donald McNeal’s home to discuss what had just taken place. Tonyell McNeal joined the other three plaintiffs at Donald McNeal’s house at a later time. None of the plaintiffs ever filed an official complaint with the police department. Nick Kasotakis, the owner of The Horizons Family Restaurant, was not present at the time of this incident on the morning of June 23, 2001. Five or six months after the incident occurred, Donald McNeal returned to The Horizons Family Restaurant to see if the offending waiter was still working there— to see if the supervisor had fired him like he claimed he would. Donald McNeal entered the restaurant, observed the offending waiter working, and left. In June 2002, after obtaining a right to sue letter from the Iowa Civil Rights Commission, the plaintiffs filed suit against Mr. Kasotakis, individually and doing business as The Horizons Family Restaurant (“defendant”). In their complaint the plaintiffs asserted racial discrimination in a public accommodation in violation of the Civil Rights Act of 1964 under 42 U.S.C. § 2000a and 42 U.S.C. § 1981, as well as the Iowa Civil Rights Act under Iowa Code § 216.7 (2003). The case was tried to a jury for two days, beginning on February 18, 2004. Each of the four plaintiffs testified at trial as to the facts surrounding the offending incident. The plaintiffs also testified as to what ramifications the incident purportedly had upon their fives. In addition to their own testimony, the plaintiffs also called Officer Mentzer as a witness. The defense consisted of the testimony of two witnesses: Mr. Kasotakis, the owner of The Horizons Family Restaurant, and Melvin Bear, who claimed to be the host present at the time of the incident. The plaintiffs then offered, in rebuttal, the testimony of Kenneth Sherman and Donald McNeal, both of whom testified that Melvin Bear was not the host that attempted to seat them on the morning of June 23, 2001. The case was submitted to the jury on the morning of February 19, 2004. On the afternoon of February 19, 2004, the jury returned its verdict. It found in favor of each of the four plaintiffs on all of their claims, and further awarded each of the four plaintiffs $1.00 in nominal damages and $12,500.00 in punitive damages for the defendant’s wrongful conduct. The jury did not award emotional distress damages to any of the plaintiffs — apparently having determined that the plaintiffs did not suffer any emotional distress damages resulting from the defendant’s unlawful conduct. The Clerk of Court entered judgement in the amount of $1.00 nominal damages and $12,500.00 punitive damages, with interest and costs as provided for by law, for each plaintiff on February 20, 2004. (Doc. No. 25). On March 1, 2004, the defendant filed its Partial Motion for Judgment as a Matter of Law or in the Alternative, Motion for Partial New Trial or Remittitur or Punitive Damages Verdict and Judgment (Doc. No. 26) — in which the defendant takes issue with the punitive damages award asserting that it was not supported by substantial evidence, and that it is grossly excessive and a constitutional violation of the Fourteenth Amendment. To remedy these alleged maladies the defendant requests either judgment as a matter of law, a partial new trial on the issue of punitive damages, or a remittitur. The plaintiffs filed a resistance wholly resisting the defendant’s motion on March 11, 2004. (Doc. No. 31). Additionally, the plaintiffs filed a Motion to Make Additiional Findings, which requests the court, in light of the jury verdict in the plaintiffs’ favor, to order injunctive relief and require the defendant to provide proof that it trains all of its employees not to provide substandard service to patrons of minority races, or subject patrons of minority races to derogatory remarks. (Doc. No. 27). The defendant filed a resistance to the plaintiffs motion on March 17, 2004. (Doc. No. 33). Finally, the plaintiffs filed a Motion for Attorneys Fees on March 12, 2004, which requests the court order the defendant pay the plaintiffs’ attorney’s fees and costs pursuant to 42 U.S.C. § 1988. (Doc. No. 32). On March 29, 2004, Mr. Jay Denne of Munger, Reinschmidt & Denne, L.L.P., in Sioux City, Iowa, entered an appearance as co-counsel on behalf of the defendant. (Doc. No. 35). Also on March 29, 2004, the defendant filed a resistance to the plaintiffs’ application for attorney’s fees. (Doc. No. 36). Oral argument on these matters was held on April 8, 2004. At oral argument, plaintiffs Kenneth Sherman, Donald MeNeal and Armondo Barker were represented by Shelley A. Horak, of Horak and Associates in Sioux City, Iowa. Plaintiff Tonyell MeNeal was represented by Robert Tiefenthaler, of Tiefenthaler Law Office, P.C., in Sioux City, Iowa. The defendant was represented by Brian Vakulskas, of Vakulskas & Hoffmeyer, in Sioux City, Iowa, and Jay Denne of Munger, Reinsch-midt & Denne in Sioux City, Iowa. The matter is now fully submitted and ready for determination by this court. II. LEGAL ANALYSIS A. Motion For Partial Judgment As A Matter of Law 1. Arguments of the Parties The defendant contends that there was insufficient evidence presented at trial to support the award of punitive damages in the amount of $12,500.00 for each plaintiff, and therefore it is entitled to judgment as a matter of law with regard to the issue of punitive damages. Specifically, the defendant asserts that the law imposes more stringent requirements for assessing punitive damages against a principal for the acts of its agent than the general law imposing liability upon an employer or principal. Defendant cites the United States Supreme Court case of Kolstad v. ADA 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) — which dealt with the award of punitive damages in a Title VII employment discrimination case — as support for this argument. Defendant notes the four exceptions recited in Kolstad for when punitive damages can be awarded against the principal for acts of the agent and surmises that there was no evidence presented at trial which would place this case within any of the exceptions. Specifically, the defendant contends that there was no evidence that: (1) Mr. Kasotakis authorized the actions of the employee; (2) Mr. Kasotakis, prior to the incident, knew the employee had discriminated against customers; (3) the discriminatory acts were performed by a person with managerial capacity; or (4) Mr. Kaso-takis ratified the actions of the employee. Defendant concludes by stating that no evidence was presented that showed that the defendant, individually or as The Horizons Family Restaurant, acted maliciously or with reckless indifference to the plaintiffs’ civil rights — therefore, the award of punitive damages should be stricken. The plaintiffs counter the defendant’s position by stating that agency principles do not restrict the punitive damages awarded in this case. Specifically, the plaintiffs point out that there is no authority for the defendant’s position that Kol-stad, a Title VII employment discrimination case, should be applied with equal force to a public accommodations case under 42 U.S.C. § 1981. To the contrary, the plaintiffs assert that the courts have applied a different standard to consumer cases — and that the final jury instruction on punitive damages, to which the defendant did not object, is a correct statement of the law. The plaintiff points to the case of Arguello v. Conoco, Inc., 207 F.3d 803 (5th Cir.), cert. denied, 531 U.S. 874, 121 S.Ct. 177, 148 L.Ed.2d 121 (2000). as addressing employer liability for consumer encounters with non-supervisory employees. In Arguello the Fifth Circuit Court of Appeals applied the general agency principles as stated in the Restatement (Seoond) of Agenoy § 219 (1958) to determine whether an employer is subject to liability for the torts committed by his employee acting in the scope of his employment in the context of a public accommodations discrimination suit under 42 U.S.C. § 2000a and 42 U.S.C. § 1981. The plaintiffs assert that there was sufficient evidence presented for the jury to find the defendant liable for the acts of its employee under the analysis used in Arguello. , Additionally, the plaintiffs contend that evidence at trial supports an inference by the jury that the actions of the employee were either normal business practice or that the business ratified the employee’s actions. 2. Standards a. Rule 50 Rule 50 of the Federal Rules of Civil Procedure outlines the standards for a motion for judgment as a matter of law. In pertinent part, Rule 50 provides: (a) Judgment as a Matter of Law. (1) If during the trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. (2) Motions for judgment as a matter of law may be made at any time before the submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment. (b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to jury subject to the court’s later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: (1) if a verdict was returned: (A) allow the judgment to stand, (B) order a new trial, or (C) direct entry of judgment as a matter of law; or (2) if no verdict was returned; (A) order a new trial, or (B) direct entry of judgment as a matter of law. Fed. R. Civ. P. 50(a)-(b) (2004). In reviewing a motion for judgment as a matter of law the court is required to: consider the evidence in the light most favorable to the prevailing party, assume that the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party’s evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence. Minneapolis Community Development Agency v. Lake Calhoun Associates, 928 F.2d 299, 300 (8th Cir.1991) (quoting Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 989 (8th Cir.1989)); see also Ryther v. RARE 11, 108 F.3d 832, 836 (8th Cir.), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997); Stephens v. Johnson, 83 F.3d 198, 200 (8th Cir.1996); Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir.1996); Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 800 (8th Cir.1994); McAnally v. Gildersleeve, 16 F.3d 1493, 1500 (8th Cir.1994). “Post-verdict judgment as a matter of law is appropriate only when the evidence is entirely insufficient to support the verdict.” Top of Iowa Co-op. v. Schewe, 324 F.3d 627, 633 (8th Cir.2003) (citations omitted); see also Manus v. American Airlines, Inc., 314 F.3d 968, 972 (8th Cir.2003) (“ ‘Judgment as a matter of law is appropriate only when all of the evidence points one way and is susceptible of no reasonable inference sustaining the position of the nonmoving party.’ ”) (quoting Belk v. City of Eldon, 228 F.3d 872, 877 (8th Cir.2000)). It is imperative that while the court is required to draw all reasonable inferences in favor of the nonmoving party, the court may not “make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 135, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The jury verdict is accorded substantial deference, see Tilson v. Forrest City Police Dep’t, 28 F.3d 802, 806 (8th Cir.1994), cert. denied, 514 U.S. 1004, 115 S.Ct. 1315, 131 L.Ed.2d 196 (1995), and must be affirmed “ ‘unless viewing the evidence in the light most favorable to the prevailing party, [the court] concludes that a reasonable jury could have not found for that party.’ ” Stockmen’s Livestock MM., Inc. v. Norwest Bank of Sioux City, 135 F.3d 1236, 1240-41 (8th Cir.1998) (quoting Chi. Title Ins. Co. v. Resolution Trust Corp., 53 F.3d 899, 904 (8th Cir.1995)). While the court would normally apply the above recited standards to the defendant’s Rule 50 motion without further ado, the court must first address a matter raised by neither party: the fact that the defendant failed to comply with the requirements of Rule 50. At the end of the plaintiffs’ case, the defendant moved for what the defendant called a ‘motion to dismiss’ in which the defendant requested dismissal of the case on the grounds that the plaintiffs had made no showing of intentional discrimination on the part of Mr. Kasotakis d/b/a The Horizons Family Restaurant, and further that the plaintiffs presented no evidence of any damages they suffered as a result of the defendant’s acts. The court considered this argument and denied the defendant’s motion. Assuming that the defendant’s so styled oral ‘motion to dismiss’ constitutes adherence to Rule 50’s requirements, the fact remains that the defendant never renewed its motion before the submission of the case to the jury as required by Rule 50(b). See Fed. R. Civ. P. 50(b) (allowing post-trial motion for judgment as a matter of law where “the court does not grant a motion for judgment as a matter of law made at the close of all the evidence”). The Eighth Circuit Court of Appeals has remained adamant in holding that judgment as a matter of law is unavailable to a party that fails to renew its motion: It is well established that judgment as a matter of law following a jury verdict cannot be had by a party who fails to renew its motion, pursuant to rule 50(b), at the close of all the evidence. Interpretation of Rule 50(b) is set out by the Advisory Committee. See Fed. R. Civ. P. 50(b) advisory committee’s note (1963 Amendment) (“A motion for judgment notwithstanding the verdict will not lie unless it was preceded by a motion for a directed verdict made at the close of all the evidence.”); Fed. R. Civ. P. 50(b) advisory committee’s note (1991 Amendment) (“This provisions retains the concept of the former rule that the post-verdict motion is a renewal of an earlier motion made at the close of the evidence.”). This interpretation is cited by recognized authorities on federal practice and procedure. See 9 James Wm. Moore, et al., Moore’s Federal Practice §§ 50.20[3], 50.40[1], 50.91[1] (3d ed.2001). It is unanimously approved by the courts, including this circuit. See, e.g., Jackson v. City of St. Louis, 220 F.3d 894, 896 (8th Cir.2000); Duckworth v. Ford, 83 F.3d 999, 1001 (8th Cir.1996); Pulla v. Amoco Oil Co., 72 F.3d 648, 655 (8th Cir.1995). Mathieu v. Gopher News Co., 273 F.3d 769, 776 (8th Cir.2001). Further, a motion for judgment as a matter of law must specifically state the grounds and facts upon which the party is entitled to judgment: “[T]he purpose of requiring the moving party to articulate the ground on which JMOL is sought ‘is to give the other party an opportunity to cure the defects in proof that might otherwise preclude him from taking the case to the jury.’ ” Galdieri-Ambrosini [v. Nat’l Realty & Dev. Corp.], 136 F.3d [276], 286 [(2d Cir.1998)] (citations omitted). If specificity is lacking, judgment as a matter of law may neither be granted by the district'court nor upheld on appeal unless that result is “required to prevent manifest injustice.” Cruz v. Local Union No. 3 of the Int'l Bhd. of Elec. Workers, 34. F.3d 1148, 1155 (2d Cir.1994). “ ‘[Technical precision is not necessary in stating grounds for the motion so long as the trial court is aware of the mov-ant’s position.’ ” Rockport Pharm., Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 197-98 (8th Cir.1995) (quoting Cortez v. Life Ins. Co. of N. Am,., 408 F.2d 500, 503 (8th Cir.1969)). If colloquy between counsel and the trial court fleshes out the motion, it may provide the opposing party with the requisite notice. Galdi-eri-Ambrosini, 136 F.3d at 287. However, post-trial motion for judgment “may not advance additional grounds that were not raised in the pre-verdict motion.” Rockport Pharm., 53 F.3d at 197. Walsh v. Nat'l Computer Sys., Inc., 332 F.3d 1150, 1158 (8th Cir.2003). The Eighth Circuit Court of Appeals favors strict compliance with the requirements of Rule 50, see Walsh, 332 F.3d at 1158 (“Adherence to the rule is mandatory.”); Mathieu, 273 F.3d at 777 (“Strict adherence to the rule comports with its underlying policy of preventing questions concerning compliance with the Seventh Amendment.”), and has on various occasions rejected proposed exceptions to this rule. See Mathieu, 273 F.3d at 777 (rejecting the following proposed exception that would excuse technical noncompliance with Rule 50(b) where the purposes of the Rule are satisfied); Peerless Corp. v. United States, 185 F.3d 922, 927 (8th Cir.1999) (rejecting exception that would “excuse an untimely motion submitted to the trial court after the jury has departed the courtroom, and with it the non-moving party’s final opportunity to ‘cure any deficiency in that party’s proof.’ ”) (citing Fed. R. Civ. P. .50(a)(2) advisory committee notes to 1991 Amendment); Pulla v. Amoco Oil Co., 72 F.3d 648, 655 n. 9 (8th Cir.1995) (noting that the Eighth Circuit has not adopted an exception to Rule 50 which “allows litigants, post-trial, to move for judgment as a matter of law even thought they failed to file a Rule 50 motion at the close of the evidence where (1) an earlier such motion has been filed and the district court defers ruling on the motion; (2) no other evidence related to the claim is presented after the motion; and (3) very little time passes between the original assertion and the close of defendant’s case.”). ' The defendant never once made the argument it asserts in its post-trial motion at any point prior to trial, during trial, or after all the evidence was submitted. The defendant neither filed a dispositive motion asserting the agency argument it makes today nor asserted agency principles as precluding the imposition of punitive damages against The Horizons Family Restaurant in its trial brief. Cf. Walsh, 332 F.3d at 1159 (finding that defendant’s summary judgment motion adequately apprised the plaintiff and the court of the defendant’s legal position regarding most of the plaintiffs claims, and as to those claims defendant’s motion for judgment as a matter of law could be considered). Nor did the defendant submit the argument at the final pre-trial conference — as there is no inkling of it in the Final Pre-Trial Order. See Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1335 (8th Cir.1985) (noting that “a party may not offer evidence or advance theories during trial which violate the terms of the pretrial order”). The defendant also failed to object to the jury instructions compiled by the court. Likewise, nothing remotely resembling a colloquy between defendant’s counsel and the court occurred, at any point, that could be viewed as fleshing out the argument the defendant proffers for the first time in its post-trial motion. Not until the filing of its post-trial motion for partial judgment as a matter of law was the court, or the opposing party for that matter, apprised of the defendant’s argument that it could not be held liable for its employee’s illegal acts under agency law principles. The defendant clearly did not comply with the mandates of Rule 50. Despite the Eighth Circuit’s reluctance to adopt exceptions to the requirements of Rule 50, it has recognized two exceptions. The first exception allows litigants to challenge a jury verdict without moving for judgment as a matter of law at the close of the evidence if: (1) their earlier Rule 50 motion closely preceded the close of all of the evidence; and (2) the court somehow indicated that the movant need not renew its motion in order to preserve its right to challenge the verdict. BE & K Constr. Co. v. United Bhd. of Carpenters and Joiners of Am., AFL-CIO, 90 F.3d 1318, 1325 (8th Cir.1996); Pulla, 72 F.3d at 655; Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 294 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983); United States v. 353 Cases Mountain Valley Mineral Water, 247 F.2d 473, 477 (8th Cir.1957). The second exception is “where allowing such claims would constitute plain error resulting in a manifest miscarriage of justice.” BE & K Const. Co., 90 F.3d at 1325; see Jones v. St. Clair, 804 F.2d 478, 479-80 (8th Cir.1986); 353 Cases, 247 F.2d at 477. Because neither party brought up the issue of the defendant’s failure to renew its motion for judgment as a matter of law at the close of the evidence, there is no assertion that either of the exceptions recognized by the Eighth Circuit applies in this matter. It is clear, looking at the plain facts of the situation, that the first exception does not apply — for while the Rule 50 motion by the defendant at the close of the plaintiffs’ case closely preceded the close of the evidence, the court in no way indicated that the defendant need not renew its motion at the close of the evidence to preserve its right to post-trial relief under Rule 50. The court is strictly limited in this situation and “cannot test the sufficiency of the evidence to support the jury’s verdict beyond application of the ‘plain error’ doctrine in order to prevent a manifest miscarriage of justice.” Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155, 157 (8th Cir.1975) (citing United States v. Harrell, 133 F.2d 504, 506-07 (8th Cir.1943)). As the defendant failed to renew its motion for judgment as a matter of law, before submission of the case to the jury, the court can only test the sufficiency of the evidence to support the jury’s verdict under the “plain error doctrine.” Cross v. Cleaver, 142 F.3d 1059, 1069-70 (8th Cir.1998). b. Rule 51 Alternatively, the defendant’s argument that agency law precludes the imposition of punitive damages on The Horizons Family Restaurant could also be viewed as an attack on the court’s instruction to the jury regarding punitive damages — which is how the plaintiffs viewed the defendant’s argument in their response to the defendant’s partial motion for judgment as a matter of law. Before looking at the relevant law, the court will establish the facts surrounding the issuance of jury instructions in this matter. On February 5, 2004, the parties jointly submitted proposed preliminary and final instructions — captioned “Parties Unified Proposed Preliminary and Final Instructions to the Jury.” (Doc. No. 11). Upon review, the court noted that the parties’ proposed instructions were cast in terms of 42 U.S.C. § 2000a — which was problematic to the court as Section 2000a only provides for injunctive relief, even though the plaintiffs sought compensatory and punitive damages. As the parties apparently agreed that all three claims boiled down to race discrimination in a public accommodation, and all of the claims involved essentially the same elements, the court recast the instructions in terms of Section 1981 and filed and submitted new Proposed Preliminary and Final Instructions to the parties along with a letter detailing the legal reasoning behind the court’s changes. (Doc. No. 15). The court, in its letter to counsel, addressed the ‘preliminary matter’ of the basis for an employer’s liability under § 1981 as follows: Another “preliminary matter” is an issue mentioned in the parties’ proffers, but never explained, which is the basis for an employer’s liability under § 1981 for discriminatory conduct by employees. It appears from the parties’ submissions and briefs that they do not dispute that Mr. Kasotakis will be liable for discriminatory conduct of his employees on the basis that the employees were acting within the scope of their employment. See Arguello [v. Conoco, Inc.], 207 F.3d [803,] 803 [ (5th Cir.2000) ] (discussing employer liability under § 1981 for conduct of employees based on “agency” and “scope of employment” and inter alia, rejecting application of the El-leHh/Faragher affirmative defense to § 1981 claims in the “public accommodation” context, because the supervisory status of the discriminating employee is much less relevant than it is in the context of employment discrimination). Court’s Letter to Counsel Regarding the Court’s Proposed Statement of the Case and Proposed Jury Instructions in Sherman v. Kasotakis, Case No. C 02-4047-MWB (N.D.Iowa) (02/13/04 VERSION), Doc. No. 15-2, at 3. The accompanying order gave the parties until 5:00 p.m. on Monday, February 16, 2004, to file any objections to the court’s proposed instructions or any different or additional instructions. (Doc. No. 15-1). Neither party filed any objections, or requests for additional or different instructions. On the morning of trial, before the trial commenced, the court gave both parties the opportunity, on the record, to make any objections they might have to the court’s proposed preliminary and final instructions — neither party objected and the preliminary instructions as drafted by the court were read to the jury. The court again gave the parties the opportunity to object, on the record, to the instructions after the submission of all the evidence but before the final instructions were read to the jury — again, there were no objections by either party and the final jury instructions were read to the jury as drafted by the court. Federal Rule of Civil Procedure 51 governs jury instructions in a federal civil case. Under Rule 51, objections to jury instructions must be made on the record, state the matter objected to, and give the specific grounds upon which the objection is based. See Dupre v. Fru-Con Eng’g, Inc., 112 F.3d 329, 334 (8th Cir.1997) (“Our law on the subject is crystal clear: to preserve an argument concerning a jury instruction for appellate review, a party must state distinctly the matter objected to and the grounds for the objection on the record.”) (emphasis added). For the objection to be timely the party must object “to the proposed instructions and actions ... before the instructions and arguments are delivered.” Fed. R. Civ. P. 51(b) & (c)(2)(A); see Walsh, 332 F.3d at 1159 (“No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection.”); Phillips v. Parke, Davis & Co. 869 F.2d 407, 409 (8th Cir.1989) (“Rule 51 makes it incumbent upon the attorneys in a civil case to ascertain how the jury is to be instructed and to state any objections before the jury retires.”). Where the party did not timely, or specifically, object to the jury instructions given—or, as in this case, where the defendant did not object at all—only a plain error analysis is required. See Fed. R. Civ. P. 51(d)(2) (“A court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 51(d)(1)(A) or (B).”); Cross, 142 F.3d at 1068 (“Where an appellant has failed to make an adequate objection below to preserve the purported error in instructions ... this court reviews only for ‘plain error.’ ”); Farmland Indus, v. Frazier-Parrott Commodities, Inc., 871 F.2d 1402, 1408 (8th Cir.1989) (holding that only a plain error analysis is necessary where party “never objected on the record to the court’s failure” to give the requested instructions). Because the defendant failed to object, the review of this issue is limited to the plain error standard of review. 3. Plain Error Review The defendant’s failure to comply with the requirements of Rule 50 and Rule 51 has caused the defendant to forfeit review under the normal standards prescribed by those rules, and has instead relegated the issues raised by the defendant in its partial motion for judgment as a matter of law to review only for plain error. “ ‘Plain error review is narrow and confined to the exceptional case where error has seriously affected the fairness, integrity, or public reputation of the judicial proceedings. The verdict should be reversed only if the error prejudices the substantial rights of a party and would result in a miscarriage of justice if left uncorrected.’ ” BBSerCo, Inc. v. Metrix Co., 324 F.3d 955, (8th Cir.2003) (quoting Chem-Trend, Inc. v. Newport Indus., Inc., 279 F.3d 625, 629 (8th Cir.2002) (internal citations and quotations omitted)); see also Bd. of Water Works Trs. of City of Des Moines, Iowa v. Alvord, Burdick & Howson & Dorr-Oliver, 706 F.2d 820, 824 (8th Cir.1983) (stating that plain error review is “narrow and confined to the exceptional cases where error has seriously affected the fairness, integrity, or public reputation of the judicial proceedings.”); Christopherson v. Deere & Co., 941 F.2d 692, 694 (8th Cir.1991) (“[A]ny plain error exception to compliance with Rule 51 is confined to the exceptional case where error has seriously affected the fairness, integrity or public reputation of judicial proceedings”) (citations omitted). Plain error is present “only if the error prejudices the substantial rights of a party and would result in a miscarriage of justice if left uncorrected.” Rush v. Smith, 56 F.3d 918, 922 (8th Cir.), cert. denied, 516 U.S. 959, 116 S.Ct. 409, 133 L.Ed.2d 328 (1995); see also Allen v. Entergy Corp., Inc., 193 F.3d 1010, 1014 (8th Cir.1999); Johnson v. Ashby, 808 F.2d 676, 679 n. 3 (8th Cir.1987). a. Employer liability The court turns first to a plain error review of the defendant’s motion for partial judgment as a matter of law. Because the defendant’s argument that agency principles preclude imposition of liability for the acts of its employee is based on the holding of Kolstad, that is where the court shall begin its plain error analysis. In Kolstad the United States Supreme Court looked to agency principles for assistance in determining when, in a Title VII case, punitive damages could be imputed to the employer for the misconduct of an employee. Kolstad, 527 U.S. at 542, 119 S.Ct. 2118. The Court recognized, as the defendant points out, that the Restatement of Agency holds the principal liable for punitive damages due to the acts of an agent in four situations, and four situations only: (a) the principal authorized the doing and the manner of the act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act. Id. at 542-43, 119 S.Ct. 2118 (quoting Restatement (SeooNd) of Agenoy § 217C (1957)). However, the Court goes on, in Kolstad, to evaluate the position taken by the Restatement in light of the purposes of Title VII — resulting in a modification of the Restatement’s perception of “scope of employment” in order to avoid undermining the objectives of Title VII. Id. at 543-46, 119 S.Ct. 2118. Ultimately, the Court adopted a “good-faith” defense which immunizes an employer from vicarious liability for punitive damages “for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’ ” Id. at 545, 119 S.Ct. 2118 (quoting Kolstad v. Am. Dental Ass’n, 139 F.3d 958, 974 (D.D.C.1998) (Tatel, J., dissenting)). The court believes that the plaintiffs have a valid contention — that the standards for imposing liability against an employer for the acts of an employee differ depending on the context of the case. This case is a consumer case not an employment discrimination case. The court agrees with the logic employed by the Fifth Circuit Court of Appeals in Arguello v. Conoco, Inc., 207 F.3d 803 (5th Cir.2000) in rejecting the application of the El-lerbh/Faragher restrictions on employer liability in employment cases to a consumer action under § 1981: In a public accommodation case such as this, the supervisory status of the discriminating employee is much less relevant than it is in an employment discrimination case.... Also, in a public accommodation case under § 1981, a rule that only actions by supervisors are imputed to the employer would result, in most cases, in a no liability rule. Unlike the employment context it is rare that in a public accommodation settings (sic) a consumer will be mistreated by a manager or supervisor. Most consumer encounters are between consumers and clerks who are non-supervisory employees. Arguello, 207 F.3d at 810. The Arguello court applied the general agency principle, embodied in the Restatement (Seconb) of Agency § 219, that a master is subject to liability for the torts of his servants while acting in the scope of their employment— and then looked to case law and treatises discussing Restatement (Seoond) of Agency § 228 (detailing when conduct is within the scope of employment) to arrive at a set of factors courts are to consider in determining when an employee’s acts are within the scope of employment. Id. at 810 (citing Domar v. Ocean Transp. Ltd. v. Indep. Refining Co., 783 F.2d 1185, 1190 (5th Cir.1986)). However, Arguello dealt only with the imposition of liability on the employer in a § 1981 action — not specifically with the issue at hand here, which is not whether basic liability can be imposed, but rather if punitive damages can be assessed against an employer for the intentional discriminatory acts of its non-supervisory/non-managerial employee. The court is unable to find any case which sets forth the correct standards to use in determining whether punitive damages can be imposed against an employer for the intentional acts of a non-supervisory employee in a § 1981 consumer case. It is understood that principles of agency govern the imposition of liability on a employer for the acts of an employee in a § 1981 case. See Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 392, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982) (requiring an agency relationship before liability could be assessed in § 1981 action). Looking to the RESTATEMENT (SECOND) OF AGENCY the court comes full circle to the instances enumerated in Restatement (Seoond) of Agenoy § 217C for when punitive damages can properly be awarded against an employee. Just as the Kolstad Court looked to the purposes of Title VII in modifying those factors, it is likely that the factors would also be so modified to fit the purposes of § 1981 in a consumer case. The Arguello court recognized a truism of public accommodation cases when it stated that “a rule that only actions by supervisors are imputed to the employer would result, in most cases, in a no liability rule.” Arguello, 207 F.3d at 810. Based on this truism it is likely that the language restricting the intentional conduct to managerial employees in Restatement (Second) of Agency § 217C (c) & (d) would be redacted when applied to public accommodation § 1981 cases — thus making an employer liable where the agent was acting in the scope of employment. If this were the case, the facts would clearly support the imposition of punitive damages against the defendant in this case. However, the court need not delineate a dispositive set of factors for determining when an employer should be vicariously liable for punitive damages for the torts of a non-managerial employee at this juncture. The court submits that, viewing the facts in the light most favorable to the plaintiffs, the evidence supports the imposition of punitive damages against the defendant for its non-supervisory employee’s intentional conduct under Restatement (Second) of Agenoy § 217C without modification. Particularly the last option which allows for the imposition of punitive damages where “the principal or the managerial agent of the principal ratified or approved of the act.” Restatement (Second) of Agency § 2170(d); see Restatement (First) of Toets § 909(d) (1939) (allowing punitive damages against an employer where the employer or manager of the employer ratified or approved of the act). The defendant asserts that liability in the form of punitive damages cannot be levied against it under this alternative because “there was no evidence whatsoever that Mr. Kasotakis ratified the actions of his employee in any way.” Brief in Support of Defendant’s Partial Motion for Judgment as a Matter of Law or in the Alternative, Motion for Partial New Trial or Remittitur of Punitive Damages Verdict and Judgment (“Def.’s Brief’), Doc. No. 26, at 5. The court disagrees. First, according to the plaintiffs’ testimony, in addition to the offending waiter and the police officer, there was also a ‘supervisor’ present at The Horizons Family Restaurant at the time of the incident on June 23, 2001. It is clear that Mr. Kasotakis was not personally present at the time of the incident— therefore, the supervisor that was present would be something akin to a ‘night manager.’ The supervisor allegedly did nothing to stop the incident from occurring. After the incident occurred and the plaintiffs were seated, two individuals working in the kitchen came out and approached the supervisor asking him how long he would continue to tolerate this kind of conduct out of the offending waiter, referencing the fact that this waiter had treated minority employees in this manner before. The supervisor then got up and approached the plaintiffs table, offered them a free meal, and told them the waiter’s conduct was unacceptable and that he would take care of the problem that very instant. The plaintiffs did receive a free meal, but during the duration of the plaintiffs’ stay at The Horizons Family Restaurant they did not once see the supervisor approach the waiter about his conduct — -as a matter of fact, the waiter continued to perform all of his job functions throughout the time that the plaintiffs remained. Mr. Kasotakis claimed at trial that he was unaware, until he was notified of the filing of a civil rights complaint by the plaintiffs, that the incident was racially based. However, when questioned on the stand, Mr. Kasotakis stated that he talked with the waiter and the supervisor the next morning' — but could not give an explanation as to why, if he knew nothing of the nature of the incident, that he felt compelled to seek out this conversation. The jury could, and likely did, infer from this dubious testimony that Mr. Kasotakis either knew, or purposefully chose to disregard, the nature of the incident. Further, though Mr. Kaso-takis claimed that a verbal warning for poor service was given to the waiter, there was no evidence presented to corroborate this assertion, nor was there evidence that any remedial action whatsoever was taken to prevent -this kind of incident from reoccurring. While it is clear that the “mere failure to dismiss a servant, unaccompanied by conduct indicating approval of the wrongful conduct, is not a sufficient basis on which to impose punitive damages,” Restatement (Second) of Agency § 217C cmt. b, there was evidence in this case from which the jury could infer that the supervisor’s conduct (i.e. the managerial agent’s conduct) at the time of the incident, and Mr. Kasotakis’s failure to address the conduct, amounted to a ratification or approval of the conduct by the defendant and/or by a manager of the employer. See Restatement (first) of ToRts § 909(d). The comments to the Restatement (First) of ToRts § 909, to which Restatement (Second) of Agency § 217C references for comments and illustrations when assessing the liability of an employer, states: Although there is no fault on the part of a corporation or other employer, where a person acting in a managerial capacity either does an outrageous act or approves of such an act by a subordinate, the imposition of punitive damages upon the employer serves as a deterrent to the employment of unfit persons for important positions .... Restatement (First) of Torts § 909 cmt. a (emphasis added). Therefore, even if Mr. Kasotakis is completely innocent in the matter, the fact that the supervisor/night manager acted in such a way to signal ratification or approval of the waiter’s conduct is sufficient to impose punitive damages liability against the defendant. It is evident that the jury’s verdict imposing punitive damages against the defendant did not amount to plain error. b. Jury instructions The court now turns to a plain error analysis of the defendant’s inferred motion for partial judgment as a matter of law insofar as it implicates the instructions given to the jury. With regard to instructing a jury, the Eighth Circuit Court of Appeals has stated: The trial court has “broad discretion” in instructing the jury. Ryther v. RARE 11, 108 F.3d 832, 846 (8th Cir.1997) (en banc) (citing Hastings v. Boston Mut. Life Ins. Co., 975 F.2d 506, 510 (8th Cir.1992)), cert. denied, 521 U.S. 1119, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997). Instructions do not need to be technically perfect or even a model of clarity. Id. Rather, “[i]n reviewing jury instructions, this court must ‘determine whether the instruction[s] fairly and adequately state[ ] the applicable law when reading the instructions as a whole.’ ” Stockmen’s Livestock Mkt., Inc., 135 F.3d at 1245-46 (quoting First Dakota Nat’l Bank v. St. Paul Fire & Marine Ins. Co., 2 F.3d 801, 813 (8th Cir.1993)); Dupre v. Fru-Con Eng’g, Inc., 112 F.3d 329, 335 (8th Cir.1997) (‘“[Wjhen reviewing a claim of instructional error, we consider the instructions in their entirety and determine whether, when read as a whole, the charge fairly and adequately submits the issues to the jury,’ ” quoting Laubach v. Otis Elevator Co., 37 F.3d 427, 429 (8th Cir.1994)); Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th Cir.) (stating this standard of review), cert. denied, 519 U.S. 867, 117 S.Ct. 179, 136 L.Ed.2d 118 (1996). Furthermore, before an appellant is entitled to any relief on the ground that the trial court erred in giving or not giving an instruction, the error must be prejudicial. Id.; Dupre, 112 F.3d at 336; Walker v. AT & T Techs., 995 F.2d 846, 849 (8th Cir.1993). Cross, 142 F.3d at 1067-68. As discussed above, as the defendant has failed to preserve any objection it may have to the jury instructions, the court will review the jury instructions submitted only for plain error. Under plain error review, the defendant must show that the instructions given by this court constituted an “error affecting substantial rights,” that the error was “plain,” and that the error seriously affected “the fairness, integrity or public reputation of judicial proceedings.” Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1220 (8th Cir.1997) (internal quotations omitted). At trial, Final Jury Instruction No. 2 instructed the jury on the elements of the plaintiffs’ claims: Each of the plaintiffs contends that his treatment at The Horizons Family Restaurant on or about June 23, 2001, violated federal law, because it deprived him of the same right to contract for the services of the restaurant as is enjoyed by white citizens. To win his claim of “racial discrimination in services of a public restaurant,” each plaintiff must prove the following elements by the greater weight of the evidence: One, the plaintiff is a member of a “protected class.” The statute upon which each plaintiff bases his claim provides that all customers of a restaurant are entitled to the same treatment as “white citizens.” Therefore, to establish his claim, the plaintiff must be a member of a “protected class,” such as a nonwhite racial group. In this case, the parties do not dispute that the plaintiffs, all of whom are African Americans, are members of a “protected class” within the meaning of the statute. Two, on or about June 23, 2001, the plaintiff sought the services of The Horizons Family Restaurant. The parties do not dispute that each of the plaintiffs was present at The Horizons Family Restaurant on the date in question. Three, the plaintiff did not receive the full benefits and services that a reasonable person would expect in that restaurant. The “right to contract,” within the meaning of the statute upon which the plaintiffs base their claims, includes the right to “the enjoyment of benefits, privileges, terms, and conditions of the contractual relationship.” More specifically, it includes the right of all customers of a restaurant to receive more than just food. Thus, it includes the right to the same treatment in seating and services, the right to be free from hostile treatment based on race, and the right to be served in an atmosphere that a reasonable person would expect in the chosen place. For example, a plaintiff was deprived of the full benefits and services of the restaurant if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was required to sit in a certain section of the restaurant, while white customers were not. Four, the plaintiff was intentionally deprived of the full benefits and services of the restaurant because of the plaintiffs race. Each plaintiff must prove that he was subjected to intentional discrimination “because of race.” The plaintiffs race need not have been the only reason that he was deprived of the full benefits and services of the restaurant. Rather, his race must have played a part or played a role in the defendant’s employees’ decision to deprive the plaintiff of the full benefits and services of the restaurant. You may find that the wrongful treatment of the plaintiff was “because of race” if you find, by the greater weight of the evidence, in light of all of the circumstances, including what was said or done by those present, that a reasonable person would conclude that wrongful treatment was because of the plaintiffs race. You may also find that wrongful treatment was “because of race” if you find, by the greater weight of the evidence, that a legitimate, non-discriminatory reason offered by the defendant for the treatment of the plaintiff is not the true reason, but is instead a pretext to hide discrimination because of the plaintiffs race. However, you cannot find that the wrongful treatment was “because of race” simply because you find that the conduct of the defendant’s employees was poor business practice. Instead, the plaintiff must prove that a reason for the plaintiffs wrongful treatment was the plaintiffs race. Unless a particular plaintiff proves all of these elements by the greater weight of the evidence, your verdict must be for the defendant on that plaintiffs claim. However, if you find that a particular plaintiff has proved all of these elements by the greater weight of the evidence, then that plaintiff is entitled to damages in some amount on his claim of racial discrimination in services of a public restaurant. Preliminary and Final Jury Instructions, Doc. No. 20, at 21-23. Final Jury Instruction No. 7 instructed the jury as to punitive damages: In addition to the “compensatory” or “nominal” damages, described in Final Jury Instruction No. 5 and Final Jury Instruction No. 6, respectively, the law permits the jury, under certain circumstances, to award “punitive damages” in order to punish the defendant for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct. Therefore, if you find that a plaintiff has proved his claim of racial discrimination in services of a public restaurant, then you must consider what, if any, punitive damages you should award. Whether or not to award punitive damages, and the amount of such punitive damages, are for you to decide. You may award punitive damages to a particular plaintiff only if you find that plaintiff has proved the following by the greater weight of the evidence: One, the defendant was callously and recklessly indifferent to the plaintiffs right not to be discriminated against in services of a public restaurant because of his race. The defendant was callously and recklessly indifferent if the plaintiff proves by the greater weight of the evidence that the defendant knew that his employees’ conduct violated the law prohibiting racial discrimination in a public restaurant, but took no reasonable steps to prevent such conduct, or acted with reckless disregard of that law. Two, it is appropriate to punish the defendant or to deter the defendant and others from permitting like conduct by his employees in the future. In determining the amount of punitive damages, if any, to award, you should consider how offensive the defendant’s employees’ conduct was; whether the amount of punitive damages bears a reasonably relationship to the actual damages awarded on a particular plaintiffs claim; what sum is sufficient to deter other similar persons from similar wrongful conduct in the future; any circumstances of mitigation; and what amount is needed, considering the defendant’s financial condition, to punish the defendant for his employees’ wrongful conduct in the future, although the wealth of the defendant cannot justify an award that is not reasonably related to the offensiveness of the defendant’s employees’ conduct or out of reasonable proportion to the actual damages awarded to a particular plaintiff. Again, whether or not to award punitive damages, and the amount of such punitive damages, are for you to decide. You may assess punitive damages in favor or one, some, or all of the plaintiffs, in the same or different amounts, or you may refuse to impose any punitive damages at all, based upon the evidence presented. Preliminary and Final Jury Instructions, Doc. No. 20, at 28-29. The instructions fairly and accurately stated the substantive law on the issues in conformity with the Eighth Circuit Model Jury Instructions in civil cases. See Eighth CiRCüit MAnual of Model Jury InstructioNS: Civil § 5.21 (2001) (requiring showing that defendant took some action against the plaintiff, and that plaintiffs race was a motivating factor in the decision to take such action, for the imposition of liability under § 1981); Id. § 5.24 (allowing imposition of punitive damages where jury has found that defendant intentionally discriminated against plaintiff based on race or defendant was callously indifferent to the plaintiffs rights — further, stating that whether or not to award punitive damages is in sound discretion of the jury) (2001). Further, as discussed above, there was no reason for the court to elaborate in the instructions on the circumstances under which the defendant could be liable for punitive damages as both parties represented to the court that they did “not dispute that Mr. Kasotakis [would] be liable for discriminatory conduct of his employees on the basis that the employees were acting within the scope of their employment.” Court’s Letter to Counsel Regarding the Court’s Proposed Statement of the Case and Proposed Jury Instructions in Sherman v. Kasotakis, Case No. C 02-4047-MWB (N.D.Iowa) (02/13/04 VERSION), Doc. No. 15-2, at 3