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NIEMANN v. WHALEN

May 24, 1996

JOANNE NIEMANN, Plaintiff, against WILLIAM WHALEN, sued in his official and individual capacities, and FLEET BANK, Defendants.


The opinion of the court was delivered by: CONNER

 CONNER, Senior D.J.:

 Following trial of the above-captioned case, the jury returned a verdict for plaintiff. Defendant William R. Whalen has made a motion for judgment as a matter of law, pursuant to Fed. R. Civ. P. 50(b), or for a new trial, pursuant to Fed. R. Civ. P. 59. In the alternative, he seeks a remittitur of the punitive damage award against him. Plaintiff has filed an application seeking an award of attorney's fees and expenses. For the reasons set forth below, we deny defendant's motion for judgment as a matter of law and grant his motion for a new trial, solely on the issue of punitive damages, unless plaintiff accepts a remittitur. Plaintiff's application for attorney's fees and expenses is granted.

 BACKGROUND

 In June 1992, plaintiff Joanne Niemann was a teller supervisor at a branch office of defendant Fleet Bank. On June 30, 1992, a day when plaintiff was absent from work, other branch employees discovered that $ 3,220 was missing from the bank vault. The bank began an investigation. Shortly thereafter, the bank reported the incident to the New York State Police and defendant Whalen, a State Police investigator, was assigned to the case. As part of the inquiry into what happened to the missing money, Whalen and Frank Connelly, the bank's assistant security officer, interviewed plaintiff. By the conclusion of that interview, Niemann had signed a confession stating that she took the money. Subsequently, the bank decided to press charges against Niemann. On July 9, 1992, plaintiff was arraigned on a charge of grand larceny, pled not guilty and was released on a personal recognizance bond. On July 21, 1993, the Town Justice dismissed the charge against Niemann for failure to prosecute in a timely fashion.

 On November 3, 1993, plaintiff filed this suit under 42 U.S.C. § 1983 against defendants Whalen and Fleet Bank. This court conducted a jury trial in February 1996. The claim submitted to the jury was whether defendants, acting in concert, had violated plaintiff's Fifth Amendment rights by coercing her confession. On February 9, 1996, the jury returned a verdict for plaintiff and awarded her $ 150,000 in compensatory damages, $ 200,000 in punitive damages against Whalen and $ 275,000 in punitive damages against Fleet Bank. Prior to the entry of judgment, defendants made motions seeking judgment as a matter of law, a new trial or a remittitur of the punitive damage awards. While these motions were pending, defendant Fleet Bank settled with plaintiff for $ 150,000, inclusive of compensatory damages, punitive damages and attorney's fees.

 DISCUSSION

 On the instant motion, defendant Whalen seeks three types of relief: judgment as a matter of law under Rule 50(b), a new trial pursuant to Rule 59 or a remittitur. The court may grant a motion for judgment as a matter of law where "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue . . . ." Fed. R. Civ. P. 50. "The standard for granting a motion for judgment [as a matter of law] pursuant to Rule 50(b) is whether the evidence, viewed in the light most favorable to the non-movants without considering credibility or weight, reasonably permits only a conclusion in the movants' favor." Jund v. Town of Hempstead, 941 F.2d 1271, 1290 (2d Cir. 1991) (internal quotation omitted). Judgment as a matter of law is reserved for the rare occasions when there is a complete absence of evidence to support the jury's verdict or the evidence is so overwhelming that a reasonable person could only have reached the opposite result. See Sorlucco v. New York City Police Dep't, 971 F.2d 864, 871 (2d Cir. 1992).

 The standard for granting a motion for a new trial is less stringent. See King v. Macri, 800 F. Supp. 1157, 1160 (S.D.N.Y. 1992), remittitur ordered, 993 F.2d 294 (2d Cir. 1993). "The district court ordinarily should not grant a new trial unless it is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988); see also Sorlucco, 971 F.2d at 875.

 Defendant's third alternative request for relief is for a remittitur, which is "the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Earl v. Bouchard Transp. Co., 917 F.2d 1320, 1328 (2d Cir. 1990). On a motion for a remittitur, the standard is "whether the award is so high as to shock the judicial conscience and constitute a denial of justice." Ismail v. Cohen, 899 F.2d 183, 186 (2d Cir. 1990); King, 800 F. Supp. at 1161. If the district court elects to order a remittitur, it "should remit the jury's award only to the maximum amount that would be upheld by the district court as not excessive." Earl, 917 F.2d at 1330.

 A. Fifth Amendment

 Defendant seeks judgment as a matter of law on plaintiff's § 1983 claim that defendant Whalen violated her Fifth Amendment privilege against self-incrimination. Defendant contends that because plaintiff testified that she did not know that Whalen was a police officer, she cannot, as a matter of law, recover on her § 1983 claim for coercion of her confession. Defendant's argument could be construed in two ways, neither of which is persuasive. First, defendant could be arguing that as a matter of law, plaintiff cannot establish that Whalen was acting under color of state law if plaintiff did not know that Whalen was a police officer. This is precisely the argument that we rejected when we denied defendant's Rule 50(a) motion made at the close of plaintiff's case. See Tr. 355-56. Defendant has advanced no new arguments on this point, and we see no reason to reach a different result at this time.

 Second, defendant could be arguing that as a matter of law, plaintiff's Fifth Amendment rights could not have been violated during the interview because she could not have been in custody if she did not know that Whalen was a police officer. An interviewee's Fifth Amendment privilege against self-incrimination attaches during custodial interrogations. See Weaver v. Brenner, 40 F.3d 527, 534-35 (2d Cir. 1994). In the absence of a formal arrest, the test used to determine whether an interviewee is in custody is an objective one that focuses on whether a reasonable person in the interviewee's position would have understood herself to be subject to restraints comparable to those associated with formal arrest. See United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992). As we stated in our ruling on defendant's summary judgment motion, in which defendant advanced the same argument that he raises here, the question of whether plaintiff knew that Whalen was a police officer is relevant to the determination of whether she was in custody during the interview because a reasonable person would be far more likely to feel subject to restraints comparable to those associated with formal arrest when questioned by Connelly and a police officer than when questioned by Connelly and a "friend." See id., at 99 (stating that interviewee's assertion that he did not know that questioner was EPA criminal investigator diminished his contention that he was subject to coercive pressures).

 Defendant is not, however, entitled to judgment as a matter of law on this basis. Whalen testified at trial that he was introduced to plaintiff as a State Police officer. See Tr. 365, 374-75. While plaintiff testified to the contrary, see Tr. 77-78, 81, 127, 132-33, the jury could have credited Whalen's testimony on this point. Therefore, when we view the evidence in the light most favorable to plaintiff, without considering credibility or weight, we believe that the jury could reasonably have concluded that plaintiff knew that Whalen was a police officer. Because there is evidence in the record that ...


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