Opinion
04 Civ. 8411 (RWS).
August 15, 2008
Attorneys for Plaintiff, JAMES I. MEYERSON, ESQ., New York, NY, JEFFREY ROTHMAN, ESQ., New York, NY.
Attorneys for Defendant, MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, New York, NY, By: Dara L. Weiss, Esq., Elizabeth W. Dollin, Esq., Susan M. Halatyn, Esq.
MEMORANDUM OPINION AND ORDER
Plaintiff Jonathan Bradley ("Bradley" or "Plaintiff") and Defendant Alexis Jusino ("Jusino" or "Defendant") have cross-moved, pursuant to Local Rule 6.3, for reconsideration of this Court's February 12, 2008, opinion (the "February 12th Opinion") granting in part Plaintiff's motion for a new trial and ordering a new trial on Plaintiff's false arrest claim, as well as on Defendant's qualified immunity defense. Bradley v. Jusino, No. 04 Civ. 8411 (RWS), 2008 U.S. Dist. LEXIS 11558 (S.D.N.Y. Feb. 12, 2008). For the reasons set forth below, Plaintiff's motion for reconsideration is denied. Defendant's motion for reconsideration is granted in part, however, upon reconsideration, the Court adheres to its prior ruling.
Prior Proceedings
The parties' familiarity with the facts and prior proceedings is assumed. In brief, this action was initiated by Bradley on October 26, 2004, when he filed a complaint asserting, inter alia, a claim of false arrest against Jusino, the officer who arrested him in Washington Square Park at the close of an anti-war demonstration on March 22, 2003, as well as claims against various supervisory officers, and the City of New York. The defendants' motion for summary judgment was denied on January 25, 2007, in an opinion adopting the Report and Recommendation of Magistrate Judge Michael H. Dolinger. Bradley v. Jusino, No. 04 Civ. 8411 (RWS), 2007 U.S. Dist. LEXIS 7811. This action was tried before a jury from January 29, 2007 to February 9, 2007, and the jury returned a verdict in Bradley's favor with regard to the false arrest claim, but found that Jusino was entitled to qualified immunity.
Standard for Reconsideration
To prevail on a motion for reconsideration, "the moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision." Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003). A motion for reconsideration "is not intended as a vehicle for a party dissatisfied with the Court's ruling to advance new theories that the movant failed to advance in connection with the underlying motion, nor to secure a rehearing on the merits with regard to issues already decided."Id. Therefore, "Local Rule 6.3 is to be narrowly construed and strictly applied in order to avoid repetitive arguments on issues that the court has fully considered." Abrahamson v. Bd. of Educ., 237 F. Supp. 2d 507, 510 (S.D.N.Y. 2002).
Plaintiff's Motion is Denied
Bradley moves for reconsideration on the grounds that: 1) Jusino did not meet his affirmative burden to identify facts "specifically linked" to his qualified immunity defense, as required by Zellner v. Summerlin, 494 F.3d 344 (2d Cir. 2007); 2) the Court erred in ordering a new trial on the false arrest claim, rather than on the issue of qualified immunity alone; 3) the Court can decide the qualified immunity issue as a matter of law at this stage without a new trial; and 4) the City of New York is the real party in interest and, under the doctrine ofrespondeat superior, the Court should enter judgment against the City based on the jury's finding in Plaintiff's favor on the false arrest claim.
The Defendant argues, and the Court agrees, that Plaintiff's arguments are not properly before the Court on a motion for reconsideration, as they do not suggest any controlling cases or factual matters overlooked by the Court in its consideration of the underlying motion. Although Bradley argues that the record before the Court is sufficient, obviating the need for a new trial on the false arrest claim prior to the Court's determination of qualified immunity, the Court already addressed the issue in explicitly determining that factfinding by a jury, through the use of a special interrogatory, was required before the Court could rule on the qualified immunity issue.Bradley, 2008 U.S. Dist. LEXIS 11558, at *14-15. In support of his argument, Bradley has relied upon caselaw which the Court explicitly considered in the February 12th Opinion, with the exception of Judge Sotomayor's concurrence in Walczyk v. Rio, 496 F. 3d 139 (2d Cir. 2007), which is inapposite here.
With regard to Bradley's request that the Court enter judgment against the City, as Bradley did not raise this argument in his motion for a new trial, he is precluded from raising it in a motion for reconsideration. Moreover, the Court previously rejected this argument when it dismissed the City as a defendant prior to trial. Trial Tr. 17:7-11, Jan. 29, 2007. See, e.g., U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., Ltd., 182 F.R.D. 97, 100 (S.D.N.Y. 1998) (stating that on a motion to reconsider, "[t]he parties . . . may not address facts, issues, or arguments not previously presented to the court . . . nor reargue those issues already considered.") (internal quotation marks and citations omitted).
Defendant's Motion is Granted, However, the Court Adheres to its Prior Ruling
The Defendant moves for reconsideration on the grounds that: 1) Plaintiff requested the jury instruction and special verdict form to which he objects in his post-trial motions, and the Court "overlooked well established law that a party who fails to raise a timely objection to a jury instruction waives such objection"; 2) a new trial would not change the ultimate outcome; 3) the Court has not articulated a finding that the jury's verdict was "seriously erroneous" or "a miscarriage of justice"; and 4) the Court erroneously considered an affidavit submitted by Plaintiff's counsel regarding alleged juror confusion over the special verdict form.
The Court grants Defendant's motion to the extent that the February 12th Opinion failed to address his argument that Bradley had waived any objection to the jury instructions. However, upon reconsideration, the Court adheres to its prior ruling that a new trial is warranted.
Even if a party fails to preserve his objections to the jury instructions on qualified immunity during trial, pursuant to Fed.R.Civ.P. 501(d)(2), the Court may review the instructions for plain error if the error affects substantial rights. An error in a jury charge is plain "if it results in a miscarriage of justice, or if it is an obvious instance of misapplied law." Latsis v. Chandris, Inc., 20 F.3d 45, 50 (2d Cir. 1994) (internal quotation marks and citations omitted).
Here, not only did the Court err in sending the issue of qualified immunity to the jury, but that error was compounded by the delivery of a flawed charge on the qualified immunity standard. As Defendant notes, Plaintiff requested that the Court deliver the qualified immunity charge used in Scherer v. City of New York, No. 03 Civ. 8445 (RWS), which read, in relevant part: "A defendant is entitled to qualified immunity if he did not know that, in the situation he confronted, what he did was in violation of federal law and if a competent public official could not have been expected at the time to know that the conduct was in violation of federal law" (emphasis in original). The Court delivered the requested charge, however, at the Defendant's request, the Court changed the word "and" to "or", resulting in a charge that misstated the applicable law. See, e.g., Stephenson v. Doe, 332 F.3d 68, 75 (2d Cir. 2003); Leonard B. Sand, et al., 5 Modern Federal Jury Instructions: Civil, Instruction 87-86 (2006). Whether it was objectively reasonable for a defendant to believe that his acts did not violate federal law is central to a qualified immunity determination, see Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007), and the use of the word "or" in the jury instructions rendered it possible for the jury to find Jusino entitled to qualified immunity on the sole basis that he did not know his acts violated federal law, even if such a belief was not objectively reasonable. Particularly in light of the complexity of a qualified immunity determination, the Court cannot consider this misstatement harmless.
Although the jury's finding both that Jusino had violated Bradley's constitutional rights and that Jusino was entitled to qualified immunity are not inherently inconsistent, see Kent v. Katz, 125 Fed. App'x 334, 335 (2d Cir. 2005), and although there may have been substantial evidence to support the verdict, the Court may nonetheless grant a new trial "to see that there is no miscarriage of justice." De Witt v. New York State Housing Fin. Agcy., No. 97 Civ. 4651 (SAS), 1999 U.S. Dist. LEXIS 13057, at *3 n. 1 (S.D.N.Y. Aug. 26, 1999) (internal quotation marks and citation omitted); see also Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir. 1978). Here, as in Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2003), given the circumstances in this case, "there is a high likelihood of confusion, as well as `a risk that the effect of having an "out" (by finding qualified immunity) affected the care with which the jury conducted' its inquiry of the underlying claim," Bradley, 2008 U.S. Dist. LEXIS 11558, at *14-15 (quoting Stephenson, 332 F.3d at 80), and, as a result, "enforcing the jury's verdict on qualified immunity may unjustly deprive [the plaintiff] of the right to recover for a violation of his constitutional rights."Stephenson, 332 F.3d at 76. The errors of submitting the qualified immunity question to the jury and doing so with an erroneous instruction are together sufficiently serious to call into question "the very integrity of the trial" of this issue.Shade ex rel. Velez-Shade v. Hous. Auth., 251 F.3d 307, 312 (2d Cir. 2001).
Finally, with regard to the affidavit submitted by Plaintiff's counsel, while the Court, in recounting the proceedings in this case, noted that it had been submitted, the affidavit was not referred to elsewhere in the opinion, and the Court did not consider it in reaching its decision.
Conclusion
For the reasons set forth above, Plaintiff's motion for reconsideration is denied, and Defendant's motion for reconsideration is granted in part. Upon reconsideration, the Court adheres to its prior ruling.
It is so ordered.