The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Derek DeMeo ("plaintiff" or "DeMeo") filed a civil action against defendants alleging violations of his federal constitutional rights and New York state law arising from an altercation outside The Bayou Cafe located in Albany, New York, on December 10, 2006.*fn1 The four defendants include New York State Police officers Joshua Kean ("Kean") and Michael Reyner ("Reyner"), Phlip 'N Spill, Inc. ("Phlip 'N Spill"), and its employee Dorian Tucker ("Tucker"). Specifically, plaintiff brought the following federal claims: (1) unlawful seizure against Kean and Tucker; (2) excessive force against Kean and Tucker; (3) deprivation of due process through witness intimidation against Kean and Reyner; (4) deprivation of due process through evidence destruction against Reyner and Phlip 'N Spill; and (5) conspiracy against Reyner and Phlip 'N Spill. Plaintiff also brought the following state claims: (6) false arrest against Kean, Tucker, and Phlip 'N 'Spill; (7) assault against Kean, Tucker, and Phlip 'N 'Spill; (8) battery against Kean, Tucker, and Phlip 'N 'Spill; and (9) negligence against Kean, Tucker, and Phlip 'N 'Spill.
Following a jury trial, and in accordance with the jury's verdicts, judgment was entered on September 30, 2011, dismissing all federal and state claims against Kean, Reyner, and Tucker as well as the federal conspiracy and all state claims against Phlip 'N Spill. Judgment was entered in favor of plaintiff and against Phlip 'N Spill in the amount of $110,000-$10,000 in compensatory damages for the loss of due process through evidence destruction and $100,000 in punitive damages.
Phlip 'N Spill has filed a post-trial motion seeking: (1) an amended judgment pursuant to Federal Rule of Civil Procedure 59(e) ("Rule __") dismissing the § 1983 due process cause of action against it; (2) a judgment as a matter of law on this cause of action pursuant to Rule 50(b); or, in the alternative, (3) a new trial on this cause of action pursuant to Rule 59(a) or remittitur of the damages award. Plaintiff has moved, pursuant to Rule 50, for a judgment in his favor regarding only those causes of action that were dismissed or, in the alternative, an order vacating the dismissal of these causes of action and ordering a new trial on them pursuant to Rule 59(a).
Oral argument was held on November 10, 2011, in Utica, New York. Decision was reserved.
A. Phlip 'N Spill's Motions
Phlip 'N Spill seeks an amended judgment pursuant to Rule 59(e) dismissing the § 1983 due process claim against it. Phlip 'N Spill argues that the jury's verdict is internally inconsistent because while it was found to have willfully engaged in joint activity with Reyner, these same defendants were found not to have entered into a conspiracy and Reyner was found not to have altered, destroyed, or lost the evidence.
"When confronted with a potentially inconsistent jury verdict, the court must adopt a view of the case, if there is one, that resolves any seeming inconsistency." Turley v. Police Dep't of N.Y., 167 F.3d 757, 760 (2d Cir. 1999) (internal quotation marks omitted).
When looking for consistency, it is important to "bear in mind that the jury was entitled to believe some parts and disbelieve other parts of the testimony of any given witness." Tolbert v. Queens Coll., 242 F.3d 58, 74 (2d Cir. 2001).
The jury's verdict was not inconsistent. That Phlip 'N Spill and Reyner did not engage in a conspiracy does not preclude a finding that they nonetheless engaged in legal joint activity. Nor does the fact that Reyner did not alter, destroy, or lose the evidence necessarily mean Phlip 'N Spill could not have done so. A finding that a private person is engaged in legal joint activity with a state actor does not automatically mean the state actor is liable for any subsequent constitutionally violative conduct by the private person.
For example, a jury could determine that a bouncer is engaged in joint activity with a police officer when he and the officer both take action to break up a large fight on a street outside a bar. This completely legal activity makes the bouncer a state actor for purposes of § 1983. Now assume the bouncer uses excessive force against actor A while the officer is twenty feet away using reasonable force against actor B. The bouncer is liable under § 1983 for violating A's constitutional rights, but the police officer-whose conduct remained lawful throughout the joint ...