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Conte v. County of Nassau

United States District Court, E.D. New York

March 3, 2017

Anthony Conte, Plaintiff,
v.
County of Nassau, et al., Defendants.

          MEMORANDUM AND ORDER

          Joseph F. Bianco, District Judge [1]

         Following an unfavorable verdict resulting from a jury trial on pro se plaintiff Anthony Conte's claim for tortious interference with contract, defendants William Wallace, Robert Emmons, and Michael Falzarano filed a Rule 50(b) motion seeking judgment as a matter of law (“JMOL”). In addition to challenging plaintiff's claim under the statute of limitations, defendants raised five substantive arguments regarding the sufficiency of the evidence at trial and governmental immunity.

         By Memorandum and Order dated July 26, 2013 (the “July 2013 Order”) (ECF No. 624), this Court granted the motion on the statute of limitations ground without addressing the remaining five arguments and denied both parties' Rule 59 motions for a new trial as moot. Plaintiff appealed. The Second Circuit reversed and remanded on the tortious interference claim with instructions “to resolve that claim in further proceedings consistent Case 2:06-cv-04746-JFB-GRB Document 716 with this order.” Conte v. Cnty. of Naussau, 596 F. App'x 1, 3 (2d Cir. 2014) [hereinafter “Conte I”].

         On remand, the parties disputed the scope of Conte I. Plaintiff argued that the only issue on remand was his Rule 59 motion for a new trial on damages, while defendants argued that this Court was required to address all the arguments they made in their Rule 50 motion. By Order dated April 2, 2015 (the “April 2015 Order”) (ECF No. 650), this Court interpreted Conte I as only requiring it to address plaintiff's Rule 59 motion based on language in Conte I suggesting that the Second Circuit had determined that the defendants waived their remaining Rule 50 arguments.

         The defendants appealed the April 2015 Order, and the Second Circuit again vacated and remanded, holding that “it was this Court's intention that the district court consider, in the first instance, all arguments related to that claim other than the statute of limitations claim.” Conte v. Emmons, 647 F. App'x 13, 14 (2d Cir. 2016) [hereinafter “Conte II”].

         After considering the remaining five grounds defendants raise in their Rule 50 motion, the Court concludes that defendants are not entitled to JMOL and, therefore, denies their Rule 50(b) motion. Specifically, the Court concludes that (1) defendants waived their immunity and sufficiency of the evidence arguments by failing to raise them before the verdict, and (2) no manifest injustice will result from this Court declining to address these arguments on the merits.

         I. Background

         Familiarity with the facts is assumed. As such, this section will only summarize the procedural history relevant to defendants' Filed 03/03/17 Page 2 of 24 PageID #: 17870 Rule 50 motion. Substantive evidence elicited during the trial relevant to specific issues will be summarized in the discussion section.

         Acting pro se, Conte filed this action against the County of Nassau, Emmons, Wallace, Falzarano, Philip Wasilausky, Christina Sardo, Tefta Shaska, and Larry Guerra, alleging federal claims under 42 U.S.C. § 1983 for false arrest, malicious prosecution, abuse of process, violation of the First Amendment, conspiracy, and Monell liability against the County. Plaintiff also asserted various state law claims, including claims for false arrest, abuse of process, and tortious interference with contractual relations.

         Following discovery, plaintiff and all defendants filed motions for summary judgment with the Court. In their motion, defendants extensively argued that they were entitled to absolute immunity and qualified immunity on plaintiff's federal claims for false arrest and abuse of process. (Defs.' Br. Supp. Mot. Sum. J., ECF No. 409 (“Defs.' Sum. J. Br.”), at 14-22.) In a single sentence at the end of their brief, defendants also raised governmental immunity as a defense to the state law claims against Emmons, Wallace, and Falzarano, including the tortious interference with contract claim. (See Id. at 25-26).

         After a detailed review of the record and submissions of the parties, the Court issued a Memorandum and Order dated September 30, 2010 (the “Summary Judgment Order”) (ECF No. 462), granting in part and denying in part defendants' motion for summary judgment and denying plaintiff's motion for summary judgment in its entirety. In that Order, the Court disposed of the defendants' state law governmental immunity arguments with respect to Emmons, Wallace, and Falzarano, concluding that, under New York law, prosecutors are not entitled to governmental immunity “when performing an investigation outside the auspices of the grand jury, ” and there were factual issues over whether the “defendants employed regularly issued legal process with a collateral purpose.” (Summary Judgment Order at 40.) This rendered summary judgment on the state law claims on the grounds of governmental immunity improper. (Id.) Between summary judgment and the jury's verdict, defendants did not explicitly raise governmental immunity in connection with the tortious interference with contract claim. (See, e.g., County Defs.' Proposed Portion of Pre-Trial Order, ECF No. 572 (“Defs.' Pre-Trial Order”), at 5; County Defs.' Proposed Jury Verdict Sheet (“Defs.' Verdict Sheet”), ECF No. 556, at 4-5.)

         Pursuant to the Summary Judgment Order, the following claims survived summary judgment: (1) plaintiff's false arrest claim against Wasilausky; (2) plaintiff's abuse of process claim against all of the County defendants except Sardo; (3) plaintiff's Monell claim against the County; and (4) plaintiff's tortious interference with contract claim against all of the defendants except Sardo and Shaska. The matter was then tried before a jury.

         At the conclusion of plaintiff's case in chief, defendants orally moved pursuant to Rule 50(a) for JMOL. (Tr. 902-08). With respect to plaintiff's tortious interference with contract claim, defense counsel only raised a statute of limitations argument. (See Id. at 902-05.) He then spent considerable time discussing plaintiff's claims for false arrest and abuse of process, neither of which is at issue here. (See Id. at 905-08.) At the conclusion of his argument on an abuse of process issue, counsel remarked that he “did not fully brief that particular issue.” (Id. at 908.)

         It was at that point that the following exchange occurred:

The Court: That is preserved for purposes of renewing it at the end of the case. Do you believe there is insufficient evidence as a whole as well?
Mr. Scott: Absolutely.
The Court: In your summary judgment motion, you moved both on absolute immunity [and] qualified immunity. And I assume that that is continuing as well?
Mr. Scott: Yes. Thank you, Judge.

(Id.) Counsel did not elaborate on either of these arguments, and the Court reserved decision on the Rule 50 motion. (Id. at 908, 912.)

         At the end of the trial, the jury found that (1) Wasilausky subjected plaintiff to an unlawful arrest; (2) none of the defendants maliciously abused process in connection with plaintiff's arrest on a bad check charge or in connection with the issuance of Grand Jury subpoenas; and (3) Emmons, Wallace, and Falzarano tortiously interfered with plaintiff's contractual relationships.[2] With respect to damages, the jury awarded $500.00 in compensatory damages and $26, 000.00 in punitive damages against Wasilausky in connection with plaintiff's false arrest claim. As to plaintiff's tortious interference with contract claim, the jury awarded plaintiff $3, 500.00 in compensatory damages for tor-tious acts that took place before June 1, 2005, and $700, 000.00 in compensatory damages for tortious acts that took place on or after June 1, 2005. The jury also awarded punitive damages in connection with plaintiff's tor-tious interference with contract claim: $60, 000.00 against Emmons; $443, 000.00 against Wallace; and $175, 000.00 against Falzarano.

         After the trial, defendants Wasilausky, Wallace, Emmons, and Falzarano[3] moved for JMOL pursuant to Federal Rule of Civil Procedure 50(b) on various grounds. As relevant here, defendants argued that (1) plaintiff's tortious interference claim was barred by the statute of limitations; (2) plaintiff failed to adduce evidence of contracts he could enforce; (3) plaintiff failed to establish defendants breached any contract; (4) plaintiff failed to establish he had suffered any economic harm; (5) plaintiff's agreements with route distributors were terminable at will, and thus could not give rise to an action; and (6) plaintiff's claim was barred by governmental im-munity.[4] (See Defs.' Br. Supp. of Mot. J. as Matter Law, ECF No. 601-20 (“Defs.' Br.”), at 10-31). Plaintiff, meanwhile, moved under Rule 59 for a new trial on damages, arguing that the Court improperly denied him the opportunity to present to the jury certain evidence of damages associated with the tortious interference with contract claim.

         In its July 2013 Order, this Court granted defendants' Rule 50(b) motion-finding that Emmons, Falzarano, and Wallace were entitled to JMOL on plaintiff's tortious interference with contract claim because plaintiff failed to prove that any injury occurred within the limitations period. (July 2013 Order at 34). Because the Court vacated the jury's verdict with respect to the tortious interference with contract claim, the Court denied both parties' Rule 59 motions for new trials as moot.

         On appeal, plaintiff argued, as relevant here, that this Court erred by granting the Rule 50(b) motion on his tortious interference with contract claim against Wallace, Emmons, and Falzarano and denying his Rule 59 motion for a new damages trial.[5] Defendants contested these arguments, contending that this Court's statute of limitations reasoning was correct and, in the alternative, that the Second Circuit could affirm the judgment on the basis of the other five issues raised in their Rule 50(b) motion.

         On December 17, 2014, the Second Circuit vacated this Court's ruling granting JMOL (on the statute of limitations ground) in favor of Wallace, Emmons, and Falzarano in connection with Conte's claim for tortious interference with contractual relations, and remanded. Conte I, 596 F. App'x at 5-7. The Court held that, because the factual issues relating to the statute of limitations defense were not submitted to the jury, the defendants were not entitled to have that issue decided by the district court. Id. at 6. With respect to the alternative grounds raised on appeal by defendants for JMOL on the tortious interference claim, the Second Circuit “decline[d] to address” defendants' immunity or insufficiency of the evidence arguments “for the first time on appeal” after noting that “defendants did not specifically articulate these grounds for reversal in their Rule 50(a) motion.” Id. “To be entitled to judgment as a matter of law on a factual issue, ” the Court continued, “the movant must, at the close of the plaintiff's case, identify the specific element that the defendant contends is insufficiently supported.” Id. (quoting Galdieri- Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 286 (2d Cir. 1998)). With respect to the new trial motions under Rule 59, the Court determined that plaintiff was entitled to have the district court decide his new trial motion on remand. Id. at 6-7. With respect to the defendants' new trial motion, the Court held that “because the defendants do not raise any reason for a new trial on appeal, we see no reason to deprive [Conte] of the benefit of the jury's verdict.” Id. at 7 (citation omitted). In closing, the Second Circuit directed this Court “to resolve that claim [i.e., plaintiff's tortious interference with contract claim] in further proceedings consistent with this order.” Id.

         On remand, the parties disputed the scope of Conte I. Plaintiff argued that the only issue for the Court to decide was his motion for a new trial on damages, while defendants contended that the mandate required the Court to revisit their Rule 50 motion in its en-tirety-beyond the limitations issue that precipitated the remand.

         In its April 2015 Order, this Court interpreted Conte I as only requiring it to address plaintiff's Rule 59 motion for a new trial.[6] It read the language in Conte I regarding defendants' failure to “specifically articulate these [alternative] grounds for reversal in their Rule 50(a) motion, ” 596 F. App'x at 6, as a holding that defendants waived their im- munity and sufficiency of the evidence arguments “in the District Court” (April 2015 Order at 4; see also Id. at 5 (“[T]he Second Circuit made it abundantly clear that it had reviewed the record and found those exact arguments to be waived. In other words, they could not be considered on appeal because they had been waived in the District Court.”)). Correspondingly, this Court held that “the scope of the remand [from Conte I was] clearly limited to consideration of plaintiff's motion for a new trial on damages” and, therefore, declined to address defendants' remaining substantive arguments. (Id. at 6.)

         On appeal, the Second Circuit vacated the April 2015 Order and remanded. Conte II, 647 F. App'x at 14. It clarified that, in Conte I, “it was this Court's intention that the district court consider, in the first instance, all arguments related to [the tortious interference with contract] claim other than the statute of limitations claim.” Id. Consequently, it “re-mand[ed] again to give the district court the opportunity to do so.” Id.

         As such, the Court now considers defendants' Rule 50(b) motion, including the five separate arguments raised as grounds for relief that this Court previously declined to address in its April 2015 Order. For the reasons set forth below, defendants' Rule 50(b) motion is denied in its entirety.

         II. Standard of Review

         The standard governing motions for JMOL pursuant to Rule 50 is well-settled. A court may not properly grant JMOL under Rule 50 against a party “unless the evidence, viewed in the light most favorable to the non-moving party, is insufficient to permit a reasonable juror to find in his favor.” Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007) (citing Galdieri-Ambrosini, 136 F.3d at 289). Generally, a court reviewing such a motion must defer to all credibility determinations and reasonable inferences that the jury may have drawn at trial. See Frank Sloup & Crabs Un-ltd., LLC v. Loeffler, 745 F.Supp.2d 115, 120 (E.D.N.Y. 2010). That is, a court considering a Rule 50 motion “may not itself weigh the credibility of witnesses or consider the weight of the evidence.” Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 145 (2d Cir. 2001) (quoting Galdieri-Ambrosini, 136 F.3d at 289); see also Playtex Prod., Inc. v. Procter & Gamble Co., No. 02 CIV.8046 WHP, 2004 WL 1658377, at *2 (S.D.N.Y. July 26, 2004) (“A Rule 50(b) motion cannot be granted ‘if, drawing all reasonable inferences in favor of the nonmoving party and making all credibility assessments in his favor, there is sufficient evidence to permit a rational juror to find in his favor.'” (quoting Sir Speedy, Inc. v. L&P Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir. 1992))).

         Thus, JMOL is appropriately granted where “(1) there is 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 (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].” Advance Pharm., Inc. v. United States, 391 F.3d 377, 390 (2d Cir. 2004) (alterations in original) (quoting Galdieri-Ambrosini, 136 F.3d at 289); see also Kinneary v. City of N.Y., 601 F.3d 151, 155 (2d Cir. 2010) (same); This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998) (stating that a court assessing a Rule 50 motion must consider 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 [people] could have reached” (quoting Cruz v. Local Union No. 3, Int'l Bd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994))). In other words, this Court may only grant defendants' Rule 50(b) motion “if it cannot find sufficient evidence supporting the jury's verdict.” Playtex Products, 2004 WL 1658377, at *2; see also Black v. Finantra Capital, Inc., 418 F.3d 203, 209 (2d Cir. 2005) (“A court evaluating [] a motion [for JMOL] cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.”). For this reason, a party moving to set aside a jury verdict must clear “a high bar.” Lavin-McEleney v. Marist College, 239 F.3d 476, 479 (2d Cir. 2001).

         III. Discussion

         Defendants argue that (1) they raised their governmental immunity and sufficiency of the evidence arguments in their Rule 50(a) motion and (2) even if they had not done so, JMOL is necessary to avoid a manifest injustice. For the reasons set forth below, ...


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