United States District Court, E.D. New York
[Copyrighted Material Omitted]
Brian P. Neary, Esq., Huntington, NY, Attorney for Plaintiff.
Office of the Suffolk County Attorney by Christopher A. Jeffreys, Esq., Richard T. Dunne, Esq., Hauppauge, NY, Attorneys for Defendants.
MEMORANDUM & ORDER
HURLEY, Senior District Judge.
Presently before the Court are the following motions: (1) defendants' motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure (" Rule" ) 50(b) or, in the alternative, for a new trial under Rule 59; and (2) plaintiff's motion for reasonable attorney's fees, costs, and interest pursuant to 42 U.S.C. § 1988(b). For the reasons stated below, defendants' motion is DENIED in its entirety, and plaintiff's motion is GRANTED, in part.
Plaintiff Zhiwen Chen (" Chen" or " plaintiff" ) brought this action alleging, inter alia, that Police Officers Shane Wild (" Wild" ), Rita D. Engels (" Engels" ), and James Magyar (" Magyar" ) (collectively, the " defendants" ) violated her constitutional rights under the Fourth Amendment when they used excessive force in arresting her on September 6, 2006. With neither party filing a dispositive motion, the case proceeded to trial, which began on January 10, 2012. The case was tried before a jury over a period of six days, at the conclusion of which the jury returned a verdict finding defendants Engels and Magyar liable and awarded compensatory damages in the amount of $20,000.00. With regard to defendant Wild, the jury found him not liable.
At trial, there was a substantial dispute as to the circumstances surrounding plaintiff's
arrest. According to Chen, after she yelled at Magyar for kicking and damaging her front door, he grabbed her by her ponytail, threw her to the ground, and handcuffed her. Then, she told the jury that Magyar and Engels punched and kicked her all over, including her head and back. (Dunne Aff., Ex. B (" Jan. 12, 2012 Tr." ) at 185.) Chen further testified that during the beating, she was called a " fucking Chinese bitch" accompanied by comment that " we [are] going to teach you how to get along with the neighbors." ( Id. at 186.) Chen also testified that Wild participated in the beating.
Defendants, however, cast the altercation in a different light. Engels testified at trial that at some point while Magyar and Wild were placing Chen's husband Jihad Haddad (" Haddad" ) under arrest and walking him to the police car, Chen pushed Engels in an attempt to get past her. Engels claimed that after advising Chen she was under arrest, she began to swing her arms to avoid being handcuffed and lunged towards her front door. In response, Engels testified that she grabbed Chen's clothing and both she and Chen fell to the ground. While on the ground, Engels claimed that Chen began punching and kicking her. Engels testified that while blocking Chen's blows with her arms, she tried to grab Chen's arms to handcuff her. Engels acknowledged landing a single punch which struck Chen in the temple region of the right side of her face. Right after that punch, Engels indicated that she and defendant Magyar, who was now assisting, were able to handcuff her.
According to Magyar, while he was escorting Haddad he heard a commotion and turned to see Chen attacking Engels. In response, Magyar testified that he went to assist Engels, at which point both Engels and Chen were falling to the ground. Magyar stated that he grabbed Chen's legs to stop her from kicking. Additionally, Wild testified that while Haddad was being handcuffed, he saw a struggle taking place between Chen and Engels. Wild indicated that after Chen and Engels fell to the ground, he stayed with Haddad while Magyar went to assist Engels. Wild's testimony about Magyar's involvement in the arrest largely dovetailed with Magyar's. Wild claimed that he was not involved in the use of physical force against Chen.
On January 19, 2012, after the jury had been deliberating for two days, counsel for defendants for the first time broached the subject of submitting a set of interrogatories to the jury concerning qualified immunity, explaining " [i]t just occurred to me as we're sitting here [that] it's something we didn't address and it is raised as a defense." (Neary Decl., Ex. 3 (" Jan. 19, 2012 Tr." ) at 27.) That same day, the jury returned its verdict. Immediately following the verdict but prior to the jurors being discharged, defendants made an application to submit questions to the jury with regard to the qualified immunity issue. ( Id. at 33-34.) Finding this request untimely under Rule 49(a)(3), the Court denied defendants' application. ( Id. at 34-40.)
Also subsequent to the verdict, defendants, for the first time, orally moved for judgment as a matter of law pursuant to Rule 50. ( Id. at 45-47.) Then, on March 19, 2012, defendants filed a motion pursuant to Rule 50(b) seeking an order granting defendants judgment as a matter of law, setting aside the jury's verdict against defendants, and dismissing plaintiff's complaint on the grounds that (1) plaintiff did not prove an injury that is more than de minimis; (2) there is no competent evidence that the police officers each used excessive force upon plaintiff; and (3) the
police officers are entitled to qualified immunity for their actions. To the extent that judgment as a matter of law is not granted, defendants also seek a new trial pursuant to Rule 59 on the basis that (1) the jury's verdict is against the weight of the evidence; (2) plaintiff materially misrepresented a proffer of evidence concerning non-party witness Martin Newell (" Newell" ), which caused the Court to permit improperly prejudicial evidence to be presented to the jury; and (3) the Court improperly failed to provide written questions to the jury pursuant to Rule 49(b).
Finally, on March 27, 2012, Chen, as the prevailing party in an action brought under Section 1983, filed a motion pursuant to 42 U.S.C. § 1988(b) seeking an award of reasonable attorney's fees and costs. In total, plaintiff seeks $169,820.00 in attorney's fees and $4,994.38 in costs.
I. Motion for Judgment as a Matter of Law
A. Legal Standard
" The standard governing motions for judgment as a matter of law (‘ JMOL’ ) pursuant to Rule 50, formerly denominated motions for directed verdict or motions for judgment notwithstanding the verdict, is well established." Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998) (internal citations omitted). " Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor." Id. In considering such a motion, " [a] court ‘ must give deference to all credibility determinations and reasonable inferences of the jury,’ and may not weigh the credibility of witnesses or otherwise consider the weight of the evidence." Caruolo v. John Crane, Inc., 226 F.3d 46, 51 (2d Cir.2000) (quoting Galdieri-Ambrosini, 136 F.3d at 289); see also This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir.1998) (noting that the issue on a Rule 50 motion is whether " the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached" ) (internal quotation marks omitted). Therefore, a court should not grant a motion for judgment as a matter of law unless " ‘ there exists such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair minded [persons] could not arrive at a verdict against [it].’ " Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir.2010) (alterations in original) (quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir.2008)).
B. Waiver of Rule 50(b) Motion
As explained by the Second Circuit in McCardle v. Haddad:
Under Rule 50(a), a party may move for JMOL during trial at any time prior to the submission of the case to the jury.... After the jury has returned its verdict, Rule 50(b) allows a party to " renew" his motion. There is no provision for a JMOL motion to be made for the first time after trial. And even when a preverdict motion for JMOL has been made, the movant may not add new
grounds after trial. The posttrial motion is limited to those grounds that were specifically raised in the prior motion for [JMOL]. In sum, a posttrial motion for JMOL can properly be made only if, and to the extent that, such a motion specifying the same grounds was made prior to the submission of the case to the jury.
131 F.3d 43, 50-51 (2d Cir.1997) (internal quotation marks and citations omitted).
Where a moving party fails to move for judgment as a matter of law under Rule 50(a) before the case is submitted to the jury, courts in this Circuit routinely deny a Rule 50(b) motion as procedurally improper. See, e.g., Ali v. AMG Trucking L.L.C., 2011 WL 5184219, at *1 (E.D.N.Y. Oct. 31, 2011) (" Because [plaintiff] did not move under Rule 50(a) for JMOL before submission of his case to the jury, his post-trial Rule 50(b) motion is improper and may be denied on this ground alone." ); Stepski v. M/V Norasia Alya, 2010 WL 6501652, at *2 (S.D.N.Y. May 7, 2010) (" The Plaintiffs in this case did not move the Court for judgment as a matter of law before the Court submitted the case to the jury. Accordingly, the Plaintiffs cannot ‘ renew’ their motion pursuant to Fed.R.Civ.P. 50(b), and are not entitled to relief under this rule." ) (internal citation omitted); Rojas v. Theobald, 2007 WL 2455133, at *4 (E.D.N.Y. Aug. 23, 2007) (" [I]t is firmly established law that a Rule 50(b) motion will not lie unless it was preceded by a motion for judgment as a matter of law under Rule 50(a) before the case was submitted to the jury." ) (internal quotation marks and alteration omitted).
Here, defendants incorrectly state that they moved at trial for judgment as a matter of law pursuant to Rule 50(a), and therefore preserved their right to renew the motion under Rule 50(b). ( See Defs.' Mem. at 14.) From a review of the record, it is clear that defendants failed to make a Rule 50(a) motion before the case was submitted to the jury. In fact, defendants did not make a Rule 50 motion until after the jury returned its verdict. ( See Jan. 19, 2012 Tr. at 45-46.) Moreover, and contrary to the defendants' contention, the Court did not " dictate[ ] the procedure under which the Rule 50 motion should be presented in the case at bar." (Defs.' Reply at 1.) After the jury rendered its verdict, defendants' counsel indicated his desire to make a " written application [under Rule 50] within the statutory time rather than do it orally now." (Jan 19, 2012 Tr. at 45.) In response, the Court suggested that counsel make the application orally, and then elaborate in a written submission. ( Id. at 46.) Prefacing that defendants " intend[ ] to supplement [their Rule 50 Application] with papers," counsel essentially argued that the evidence did not support a plaintiff's verdict, and that defendants were entitled to qualified immunity. ( Id. at 46-47.) After counsel presented his arguments, the Court responded that " [t]he issue is framed for present purposes" and that " [t]he motion is deemed made at this point." ( Id. at 47.) At no point was there a determination that defendants' motion was timely under Rule 50, or that the obligatory procedural requirements set forth in Rule 50 were somehow being waived by the Court.
Finally, defendants' correctly note that even if there was a " technical deficiency ... the Second Circuit has determined that a District Court may entertain a Rule 50(b) motion even where a Rule 50(a) motion has not been made if it is necessary to prevent manifest injustice." (Defs.' Reply at 2); see, e.g., Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir.2003); Kirsch v. Fleet St., Ltd., 148 F.3d 149, 164 (2d Cir.1998); Welch v. United Parcel Serv., Inc., 871 F.Supp.2d 164, 177-78 (E.D.N.Y.2012). While what constitutes manifest injustice hinges on the specifics of a particular case, " a defendant may not merely argue that the procedural bar should be waived because they should win on the underlying motion." Welch, 871 F.Supp.2d at 178. As explained below in connection with defendants' Rule 59 motion, the verdict was not against the weight of the evidence, and therefore no manifest injustice will result in denying defendants judgment as a matter of law based on the purported lack of evidence supporting plaintiff's excessive force claim.
Similarly, no manifest injustice will arise in not granting judgment as a matter of law for defendants in connection with their purported entitlement to qualified immunity since this defense was waived altogether. Qualified immunity is an affirmative defense that must be asserted in an answer and proven by the defendant. McCardle, 131 F.3d at 50. The defense " can be waived, either by failure to raise it in a timely fashion, or by failure to raise it with sufficient particularity." Id. at 51 (internal citations omitted).
From the time the Complaint was filed in September 2007, until the jury began deliberations on January 18, 2012 (a span of over 4 years), defendants can only identify two instances where the defense of qualified immunity was placed before the Court. The first was in the Answer, filed on November 15, 2007, in which defendants assert as their fourteenth affirmative defense that they acted in good faith because they reasonably believed that they were exercising and acting within their statutory and constitutional powers, and as such, are protected by qualified immunity. (Docket No. 3 (" Answer" ) ¶¶ 29-32.) The second reference is found in the Joint Pre-Trial Order dated March 31, 2009, which merely indicates that " [t]he individual defendants will contend that they are entitled to judgment in their favor on the basis of qualified immunity." (Docket No. 17 (" Joint Pre-Trial Order" ) at 4.) Defendants claim that based on the presence of the affirmative defense in these documents, " there can be no surprise that qualified immunity was an issue that had to be decided incident to the trial of this action." (Defs.' Mem. at 19.) Surprise, however, is not the standard when confronted with the question of whether the affirmative defense has been waived. See McCardle, 131 F.3d at 51-52; Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir.1995).
Other than generally pleading the affirmative defense of qualified immunity and indicating in the Joint Pre-Trial Order their intention to argue that they are entitled to judgment on the basis of this affirmative defense, defendants neither addressed the qualified immunity defense prior to trial nor even broached the subject before the case was submitted to the jury for its determination. For instance, not only did defendants not move for judgment as a matter of law on their qualified immunity defense before the verdict was rendered, but they also did not raise the qualified immunity defense in the form of a dispositive motion prior to trial. Moreover, defendants did not propose any jury instructions relating to their qualified immunity defense nor any questions which would ascertain facts necessary to prove
such a defense. Also relevant is the fact that defendants did not object to the questions contained in the jury verdict sheet prior to its submission to the jury or request that additional questions be included. Simply put, defendants have waived the issue of qualified immunity. Blissett v. Eisensmidt, 940 F.Supp. 449, 455 (N.D.N.Y.1996); accord McCardle, 131 F.3d at 52.
In urging a contrary conclusion, defendants maintain that " [t]he timing of the defendants' qualified immunity discussion was thoroughly consistent with Second Circuit precedent on the issue, as well as this Honorable Court's prior procedures on issues of qualified immunity." (Defs.' Mem. at 21.) Neither ...