Nelson v. County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TERENCE A. NELSON,

MEMORANDUM & ORDER

Plaintiff, 12-CV-5678 (DRH)(AKT)

-against-

COUNTY OF SUFFOLK, DETECTIVE

WILLIAM HUDSON and DETECTIVE

RALPH RIVERA,

Defendants.

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APPEARANCES:

For Plaintiff:

Jacobs & Hazan, LLP

30 Vesey Street, 4th Floor

New York, New York 10007

By: David M. Hazan, Esq.

For Defendants:

Dennis M. Brown

Suffolk County Attorney

H. Lee Dennison Building

100 Veterans Memorial Highway

P.O. Box. 6100

Hauppauge, New York 11788

By: Arlene S. Zwilling, Esq.

HURLEY, Senior District Judge:

The purpose of this Order is to address Plaintiff’s motion for partial

reconsideration of the Court’s Memorandum and Order, dated August 22, 2019 (the

“2019 Order”), granting in part Defendants’ post-trial motion pursuant to Federal

Rules of Civil Procedure 50(b) and 59. Specifically, Plaintiff seeks reconsideration of

that portion of the 2019 Order which granted a new trial on punitive damages

unless he accepts a reduces punitive damages award totaling $21,000.00.

BACKGROUND

This case arises out of the detention and arrest of plaintiff Terence

Nelson (“Plaintiff” or “Nelson”) on November 17, 2011, and his arraignment the

following day, after the Ultra Diamonds store at the Deer Park Tanger Outlet Mall

reported to the Suffolk County Police Department that a 1 carat diamond bracelet

which had been placed on a showcase by store employee Kassandra Messina

(“Messina”) was missing. That bracelet was found the next day, prior to Plaintiff’s

arraignment, but the charges against him, grand larceny in the fourth degree, were

not dismissed until his second appearance in court on November 23, 2011.

The matter was tried before a jury which returned a verdict in favor of the

Nelson and against defendants Detective William Hudson (“Hudson”) and Detective

Ralph Rivera (“Rivera”) (together “Defendants”) on each of the claims presented,

viz. federal civil rights claims for false arrest, malicious prosecution, and denial of a

fair trial/due process and state law claims for false arrest and malicious

prosecution. The jury awarded Plaintiff total compensatory damages of $7,000.00

plus $20,000.00 in punitive damages against Hudson and $30,000.00 in punitive

damages against Rivera. Defendants filed a post-trial motion seeking judgment as a

matter of law or a new trial, pursuant to Federal Rules of Civil Procedure 50(b) and

59. By Order dated August 22, 2019, familiarity with which is presumed, the Court

granted the motion solely to the extent that Defendants were granted a new trial on

punitive damages unless Plaintiff accepted a reduced punitive damages award

totaling $21,000.00.

THE POSITION OF THE PARTIES

In his moving papers in support of reconsideration, Plaintiff maintains that

the Court erred by looking at the total punitive damages award rather than

separately analyzing whether each of the punitive damages awards shocks the

judicial conscience and, as so analyzed, should have upheld the awards;

alternatively, the Court should determine an appropriate remitter of punitive

damages for each individual defendant. (DE 94 at 3-8.) He further argues that the

Court “erred in using the ratio between compensatory and punitive damages as its

primary method for calculating a punitive damages award that does not shock the

conscience.” (Id. at 9-11.)

Opposing the motion, Defendants maintain that reconsideration is

inappropriate because Plaintiff raises arguments that he failed to raise in

opposition to Defendant’s posttrial motion. (DE3-4.) Additionally, it is argued that

he fails to establish that restoration of the original punitive award is required. (Id.

at 4-8.)

In reply, Plaintiff asserts that reconsideration is appropriate as the Court’s

“analysis was significantly broader that defendants’ arguments in their motion.”

(DE 98 at 3.) Further, it is argued that the Court “erroneously relied upon the ratio

between compensatory and punitive damages to determine the award was

excessive,” an analysis that contradicts the jury charge. (Id. at 6-7.) Lastly, he

maintains that the “Defendants did not establish that the punitive damages awards

outweighed the reprehensibility of the officers’ actions.” (Id. at 8.)

DISCUSSION

I. Applicable Standard – Motion for Reconsideration

The decision to grant or deny a motion for reconsideration lies squarely

within the discretion of the district court. See Devlin v. Transp. Comm’ns Union,

175 F.3d 121, 132 (2d Cir. 1999). The standard for a motion for reconsideration “is

strict, and reconsideration will generally be denied unless the moving party can

point to controlling decisions or [factual] data that the court overlooked – matters,

in other words, that might reasonably be expected to alter the conclusion reached by

the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (finding

district court properly exercised its discretion to reconsider earlier ruling in light of

the introduction of additional relevant case law and substantial legislative history);

see also Arum v. Miller, 304 F. Supp. 2d 344, 347 (E.D.N.Y. 2003) (“To grant such a

motion the Court must find that it overlooked matters or controlling decisions

which, if considered by the Court, would have mandated a different result.”)

(citation and internal quotation marks omitted). “The major grounds justifying

reconsideration are ‘an intervening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent manifest injustice.’” Virgin

Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)

(quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478

at 790). Thus, a “‘party may not advance new facts, issues, or arguments not

previously presented to the Court.’” National Union Fire Ins. Co. v. Stroh Cos., 265

F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v. St. Martin’s Press, 2000 WL 98057, at

*1 (S.D.N.Y. Jan. 18, 2000)). A party may, however, introduce relevant authority

that was not before the district court when it initially ruled on the matter. See

Vaughn v. Consumer Home Mortgage Co., 2007 WL 140956 at *6 (E.D.N.Y. Jan. 22,

2007). In the alternative, reconsideration is appropriate if a court “misinterpreted

or misapplied” relevant case law in its original decision.

II. Application

In determining whether reconsideration is appropriate, the Court begins with

a brief overview of the arguments raised vis a vis punitive damages in the original

post trial motion papers.1 Defendants’ argument in support of remittitur is aptly

summarized by the following excerpt from their moving papers:

The jury awarded Nelson punitive damages against Det. Hudson of

$20,000 and against Det. Rivera of $30,000, for a total of $50,000, more

than 7 times the amount of compensatory damages awarded. Under

Rule 59, the Court has the power to issue an order directing Nelson to

accept a reduced amount of punitive damages or submit to a new trial.

Respectfully, the excessiveness of the punitive damages award

warrants the exercise of the Court’s Rule 59 authority.

(DE 90 at ECF p. 28.) In response, after citing case law with respect to the purpose

of punitive damages with respect to § 1983 claims, the entirety of Plaintiff’s

opposition was as follows:

1 The Court notes parenthetically, that in their original motion papers neither party addressed all

three guideposts for evaluating whether punitive damages are “fair, reasonable, predictable and

proportionate” set by the Supreme Court in BMW of N. America v. Gore, 517 U.S. 559 (1996) as

further mandated by the Second Circuit in Payne v. Jones, 711 F.3d 85, 101 (2d Cir. 2013).

Defendants focused solely on the relationship of punitive damages to compensatory damages and

Plaintiff mentioned only the conduct at issue in an at best cursory fashion.

In light of the fact that the jury in this case reached a verdict finding

that defendants fabricated evidence that was provided to the District

Attorney’s Office and withheld exculpatory evidence from the District

Attorney’s Office that would have exonerated plaintiff of the crime he

was accused of committing before he was arraigned, punitive damages

are warranted against defendants to deter them and other police

officers from engaging in such unlawful conduct in the future. The

punitive damages of $20,000 against defendant Detective Hudson and

$30,000 against defendant Detective Rivera are not excessive in any

way. For these reasons the Court should deny defendants motion for

remitter of the punitive damages award or in the alternative a new

trial.

(DE 91 at ECF p. 30.)

The Court is hard pressed to discern from the forgoing the proposition

currently advanced in Plaintiff’s moving papers seeking reconsideration, i.e. that

the punitive damages awarded against each defendant must be separately

analyzed, when the defendants’ attack is confined to the total amount of the

punitive award rather than the amount assessed against the individual officers.

Additionally, the Court notes the absence of any reasoned discussion of each of the

Gore factors in Plaintiff’s opposition to the post-trial motion, an omission he

undertakes to remedy in current submission. The purpose of reconsideration,

however, is not to provide a second bite at the apple. See Eaton & Van Winkle, LLP

v. Yunling Ren, 2020 WL 1244135, at *1 (S.D.N.Y., 2020) (“’A motion for

reconsideration may not be used to advance new facts, issues or arguments not

previously presented to the Court, nor may it be used as a vehicle for relitigating

issues already decided by the Court.’”) (quoting Davidson v. Scully, 172 F. Supp. 2d

458, 461 (S.D.N.Y. 2001). The Court is also constrained to note that Plaintiff’s reply

in support of his motion for reconsideration improperly raises a number of

arguments absent from both his opposition to the post-trial motion and his initial

moving paper on the current application. See, e.g., Scott v. Westchester Cty., 2020

WL 364251, at *4 (S.D.N.Y. Jan. 22, 2020) (“Arguments made for the first time in a

reply brief need not be considered by a court.” ) (internal quotation marks omitted);

Tutor Time Learning Centers, LLC v. GKO Grp., Inc., 2013 WL 5637676, at *1

(S.D.N.Y. Oct. 15, 2013) (“[A]rguments raised for the first time in a reply

memorandum . . . need not be considered.”); see also United States v. Sampson, 898

F.3d 287, 314 (2d Cir. 2018) (“[I]t is well-settled that we will not usually entertain

an argument made for the first time in a reply brief.”)

Nevertheless, the Court will briefly address why Plaintiff’s arguments are

unpersuasive.

Plaintiff’s application is devoid of any authority for the proposition that the

punitive damages award must be separately analyzed as to each defendant and the

Court has found none. In fact, in Wallace v. Suffolk County Police Dep’t, 2010 WL

3835882 (E.D.N.Y. Sept. 24, 2010), the Court, in finding the punitive damages

award excessive, addressed the issue by analyzing the total compensatory award vis

a vis the total punitive damages awarded against the three defendants. Moreover,

such an analysis is appropriate here, given that the jury found against both

defendants on each of Plaintiff’s claims and there was but one compensatory

damages award against the two defendants. In such a situation, to separately

analyze the Gore factors, particularly the second one, i.e., the ratio of compensatory

to punitive damages, would surely skew the results.

Plaintiff further complains that the Court “erred in using the ratio between

compensatory and punitive damages as its primary method for calculating a

punitive damages award that does not ‘shock the conscience’ and constitute a denial

of justice.” (Pl.’s Mem. at 9.) As the Court explained in the August 2019 Order the

Court specifically stated: “While Defendants focus exclusively upon the second Gore

factor, consideration of the other factors is appropriate. Indeed, the first Gore

factor, the reprehensibility of defendants’ conduct is ‘[p]erhaps the most important

indicium of the reasonableness of a punitive damages award’” (August 2019 Order

at 31 (quoting Gore, 517 U.S. at 575).) The Court then proceeded to discuss the

aggravating factors that the Second Circuit has identified as associated with

particularly reprehensible conduct, (a topic Plaintiff addressed in a cursory

fashion)2, before turning to the other Gore factors. In other words, the Court

focused on all three factors in finding remittitur was appropriate and granting

defendants a new trial on punitive damages unless Plaintiff accepted a reduced

damages award totaling $21,000.00.

As requested by Plaintiff, if the remittitur is accepted, the Court will enter

judgment reflecting punitive damages against each defendant in the same

proportion as they were awarded by the jury. In other words, the judgment will

reflect $8,400 in punitive damages against Defendant Hudson and $12,600 in

punitive damages against Defendant Rivera.

2 For example, Plaintiff’s current application and especially his reply relies upon Lee v. Edwards, 101

F.3d 805 (2d Cir. 1996), a case not even mentioned in his opposition to Defendants’ post trial motion.

(See DE 92 at iii-v.)

In his reply Plaintiff complains that the analysis employed by the Court in its

August 2019 Order is “reversible error” as it “contradict(s) the jury charge” in that

the charge did not direct the jury to consider the”(“1) relationship of the punitive

damages to the compensatory damages, or (2) criminal and civil penalties imposed

by the state’s law for the misconduct in question when determining the value of the

punitive damages award.” (Pl.’s Rep. 6-7.) Firstly, as noted earlier, this argument is

improperly raised for the first time in reply and therefore need not be considered. In

any event, it is without merit. The Court’s charge to the jury on punitive damages

was taken directly from 4 Modern Federal Jury Instructions-Civil P 77.01,

Instruction 77-5. Further, the Court’s analysis of the punitive damages award for

excessiveness comported with the factors set forth by the Supreme Court in Gore,

which factors the Second Circuit has held are applicable to Section 1983 actions.

See, e.g., Payne v. Jones, 711 F.3d 85, 101 (2d Cir. 2013).

CONCLUSION

For the reasons set forth above, Plaintiff’s motion for reconsideration is

denied and the Court adheres to its earlier determination. Plaintiff must advise the

Court within twenty (20) days of the date hereof whether he accepts the remittitur.

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

May 20, 2020 Denis R. Hurley

United States District Judge