12-4611
Wesolowski v. Bockelmann
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 28th day of October, two thousand thirteen.
5
6 PRESENT: DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 JOHN G. KOELTL*
10 District Judge.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 Amy Negron, FKA Amy O’Bryan, officer,
14 Plaintiff-Counter-Defendant,
15
16 -v.- 12-4611
17
18 Paul Wesolowski, in his official
19 capacity as a member of the Ulster
20 County Sheriff’s Department, and
21 individually,
22 Defendant-Cross-Claimant-
23 Counter-Claimant-Appellant
*
Judge John G. Koeltl, of the United States District
Court for the Southern District of New York, sitting by
designation.
1
1
2 -v.-
3
4 Richard J. Bockelmann, in his official
5 capacity as Sheriff of the County of
6 Ulster and individually
7 Defendant-Cross-Defendant-
8 Appellee
9
10 Bradford Ebel, in his official
11 capacity as Superintendent of the
12 Ulster County jail and individually,
13 Ray Acevedo, in his official capacity
14 as Deputy Superintendent of the
15 Ulster County Jail and individually,
16 Ulster County,
17 Paul J. Van Blarcum, in his official
18 capacity as Sheriff of the County of
19 Ulster, and individually
20 Defendants-Cross-Defendants.
21
22 - - - - - - - - - - - - - - - - - - - -X
23
24 FOR APPELLANT: MICHAEL H. SUSSMAN, Sussman &
25 Watkins, Goshen, New York.
26
27 FOR APPELLEES: MATTHEW J. KELLY, Roemer Wallens
28 Gold & Mineaux LLP, Albany, New
29 York.
30
31 Appeal from a judgment of the United States District
32 Court for the Northern District of New York (Scullin, J.).
33
34 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
35 AND DECREED that the judgment of the district court be
36 AFFIRMED.
37
38 Paul Wesolowski appeals a judgment of the United States
39 District Court for the Northern District of New York
40 (Scullin, J.), dismissing his malicious prosecution claim
41 against Richard Bockelmann, former Sheriff of Ulster County.
42 On appeal, Wesolowski challenges the order setting aside the
43 jury verdict in his favor and granting Bockelmann’s motion
44 for judgment as a matter of law (“JMOL”). Wesolowski argues
45 that (1) there was sufficient evidence to support the
46 verdict, and (2) Bockelmann failed to move properly for JMOL
2
1 under Fed. R. Civ. P. 50(a) before the case was submitted to
2 the jury, and thus failed to preserve his right to renew the
3 motion after the verdict.1 We assume the parties’
4 familiarity with the underlying facts, the procedural
5 history, and the issues presented for review.
6
7 The district court’s ruling on a post-verdict motion
8 for JMOL under Rule 50(b) is reviewed de novo. Runner v.
9 N.Y. Stock Exch., Inc., 568 F.3d 383, 386 (2d Cir. 2009). A
10 Rule 50 motion may be granted only if, “after viewing the
11 evidence in the light most favorable to the non-moving party
12 and drawing all reasonable inferences in favor of the
13 non-moving party, [the district court] finds that there is
14 insufficient evidence to support the verdict.” Fabri v.
15 United Techs. Int'l, Inc., 387 F.3d 109, 119 (2d Cir. 2004).
16
17 “Claims for ... malicious prosecution, brought under
18 § 1983 to vindicate the Fourth and Fourteenth Amendment
19 right to be free from unreasonable seizures, are
20 ‘substantially the same’ as claims for ... malicious
21 prosecution under state law.” Jocks v. Tavernier, 316 F.3d
22 128, 134 (2d Cir. 2003) (citing Conway v. Village of Mount
23 Kisco, 750 F.2d 205, 214 (2d Cir. 1984)). “Because there
24 are no federal rules of decision for adjudicating § 1983
25 actions that are based upon claims of malicious prosecution,
26 [courts] are required by 42 U.S.C. § 1988 to turn to state
27 law - in this case, New York state law - for such rules.”
28 Conway, 750 F.2d at 214.
29
30 The elements of a malicious prosecution claim in New
31 York are: (1) the defendant initiated a prosecution against
32 the plaintiff, (2) the defendant lacked probable cause to
33 believe the proceeding could succeed, (3) the defendant
34 acted with malice, and (4) the prosecution was terminated in
35 the plaintiff’s favor. Rohman v. N.Y.C. Transit Auth., 215
36 F.3d 208, 215 (2d Cir. 2000).
37
38 1. As the district court concluded, no reasonable juror
39 could have found that Bockelmann initiated Wesolowski’s
40 prosecution. To initiate prosecution, “a defendant must do
1
The district court also granted a new trial under
Fed. R. Civ. P. 59 because it found that the jury’s verdicts
were inconsistent. On appeal, Wesolowski challenges this
finding. However, it is unnecessary to reach that issue
here.
3
1 more than report the crime or give testimony. He must play
2 [] an active role in the prosecution, such as giving advice
3 and encouragement or importuning the authorities to act.”
4 Manganiello v. City of New York, 612 F.3d 149, 163 (2d Cir.
5 2010) (alteration in original) (internal citations and
6 quotation marks omitted). According to Lieutenant Ronald
7 Dreiser’s unrebutted testimony, Dreiser conducted the
8 investigation and himself referred the charges to the
9 district attorney as a matter of department policy, without
10 asking Bockelmann for permission. Trial Transcript (“Tr.”)
11 at 961. While Bockelmann approved of Dreiser’s actions, see
12 Tr. at 1009, there is no evidence that he directed those
13 actions, played any active role in the investigation of
14 Negron’s claims, or encouraged the district attorney to
15 bring the charges.
16
17 On that record, no reasonable juror could conclude that
18 Bockelmann initiated Wesolowski’s prosecution; so we need
19 not consider whether there was probable cause to refer the
20 charges to the district attorney.
21
22 2. Bockelmann sufficiently preserved his right to move for
23 JMOL. Under Fed. R. Civ. P. 50(b), a non-prevailing party
24 can, post-verdict, renew a Rule 50(a) motion that was made
25 prior to the submission of the case to the jury. However,
26 because the motion is a “renewal,” it must be premised on
27 grounds specified in the earlier motion. Lore v. City of
28 Syracuse, 670 F.3d 127, 153 (2d Cir. 2012). The specificity
29 requirement ensures that the opposing party has notice,
30 before the case goes to the jury, of the deficiencies in its
31 case. Id. at 152 (“The principal purpose of the requirement
32 that any such motion be made before the case is submitted to
33 the jury is to assure the responding party an opportunity to
34 cure any deficiency in that party’s proof.”) (internal
35 quotation marks omitted).
36
37 The specificity requirement, while “obligatory,” must
38 nevertheless be viewed “in [] context” in assessing whether
39 the motion was “sufficiently specific to alert the opposing
40 party to the supposed deficiencies in her proof.”
41 Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d
42 276, 286-87 (2d Cir. 1998). Immediately before Bockelmann’s
43 motion, Negron moved to dismiss the malicious prosecution
44 claim against her. The grounds for the Rule 50(a) motion
45 were the insufficiency of the evidence that Negron initiated
46 Wesolowski’s prosecution. See Tr. at 1181 (“Based on the
47 inadequacy of proof with respect to the joint participation
4
1 or cooperation with the county ... there hasn’t been
2 adequate evidence to submit [the malicious prosecution]
3 issue to the jury ....”). Wesolowski’s counsel argued in
4 response that under “one reading of the evidence ... Negron
5 ... encouraged the matter to be sent to prosecution ....”.
6 Tr. at 1182-83. The court granted Negron’s motion. Id. at
7 1184. Bockelmann’s counsel then stated that he wished to
8 “make the same motion” to dismiss the malicious prosecution
9 claim against Bockelmann. Id. (emphasis added). The
10 context makes clear that Bockelmann moved on the same
11 grounds as Negron, i.e., that there was insufficient
12 evidence to support a finding that the defendant had
13 initiated the prosecution. Accordingly, the motion meets
14 the specificity requirement of Rule 50(a), and the district
15 court correctly granted Bockelmann’s renewed motion for
16 JMOL.
17
18 For the foregoing reasons, and finding no merit in
19 Wesolowski’s other arguments, we hereby AFFIRM the judgment
20 of the district court.
21
22 FOR THE COURT:
23 CATHERINE O’HAGAN WOLFE, CLERK
24
5