11-5341-cv
Rafter v. Fleet Bos. Fin. Corp.
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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of April, two thousand thirteen.
PRESENT:
PETER W. HALL,
DENNY CHIN,
Circuit Judges,
JANE A. RESTANI,*
Judge, U.S. Court of International Trade.
_____________________________________
Marcia Rafter,
Plaintiff-Appellant,
v. 11-5341-cv
Fleet Boston Financial Corp., Fleet Bank, City of
New York, Charles Gifford, Xiomara Leto,
Kimberly Jenkins, Irvin Noak, Jane Does, John
Does, Bank of America,
Defendants-Appellees.
_____________________________________
*
Judge Jane A. Restani, of the United States Court of International Trade, sitting by
designation.
For Plaintiff-Appellant: Marcia Rafter, pro se, Denver, CO.
For Fleet Boston
Defendants-Appellees: Kathleen D. Foley, (Christine Gasser, on the brief) Congdon,
Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger,
Uniondale, NY.
For City Defendants-
Appellees: Pamela Seider Dolgow (Dona B. Morris and Sumit Sud, on the
brief), for Michael A. Cardozo, Corporation Counsel of the City of
New York, New York, NY.
Appeal from a judgment and orders of the United States District Court for the Southern
District of New York (Rakoff, J.; Fox, Mag. J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and orders of the district court are AFFIRMED.
Appellant Marcia Rafter, pro se, appeals from the district court’s judgment, pursuant to a
jury verdict, dismissing her complaint. Rafter also appeals from the district court’s orders
granting partial summary judgment against her, declining to impose sanctions on the defendants,
and denying her post-judgment motions for judgment as a matter of law pursuant to Federal Rule
of Civil Procedure 50, or, in the alternative, for a new trial pursuant to Federal Rule of Civil
Procedure 59. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
Rafter asserts various arguments that the district court improperly granted summary
judgment against her. We review orders granting summary judgment de novo and focus on
whether the district court properly concluded that there was no genuine issue as of material fact
such that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff &
Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003). We resolve all ambiguities and draw all
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permissible inferences in favor of the non-moving party. See Nationwide Life Ins. Co. v.
Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999) (citing Cronin v. Aetna Life Ins. Co.,
46 F.3d 196, 202 (2d Cir. 1995)). After de novo review of the record on appeal, we find no
error in the district court’s denial of plaintiff’s summary judgment motion and partial grant as to
various aspects of the bank defendants’ motion.
Likewise, we agree with the district court and the magistrate judge below that all claims
against the city defendants, except for the section 1983 excessive force claim, were properly
dismissed. Even though the magistrate judge appeared to state in his analysis of the malicious
prosecution claim that summary judgment was improper, we “may affirm on any basis for which
there is sufficient support in the record, including grounds not relied on [by the district court].”
Ferran v. Town of Nassau, 471 F.3d 363, 365 (2d Cir. 2006) (per curiam). A necessary element
of a malicious prosecution claim under New York law is that the defendant lacked probable
cause to commence a criminal proceeding. See Moore v. Guerra, 947 N.Y.S.2d 342, 342 (2d
Dep’t 2012). As the magistrate judge properly determined in a separate portion of his report and
recommendation, the detective had probable cause to arrest Rafter. Rafter’s claim for malicious
prosecution thus fails as a matter of law because she could not show that the prosecution was
unsupported by probable cause.
Rafter also contends that the district court erred in instructing the jury on the elements of
malicious prosecution. We review de novo challenges to jury instructions, finding error only if
“‘the jury was misled about the correct legal standard or was otherwise inadequately informed of
controlling law.’” Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 146 (2d Cir. 2010) (quoting
Crigger v. Fahnestock & Co., 443 F.3d 230, 235 (2d Cir. 2006)). Here, New York law requires,
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in relevant part, that a plaintiff show a lack of “probable cause for the criminal proceeding” and
“actual malice.” Moore, 947 N.Y.S.2d at 342. The district court’s instruction to the jury
conveyed these principles in stating that the prosecution against Rafter must have been instigated
by Fleet Boston’s giving of false or misleading information to the authorities and that such
conduct was undertaken with malice towards Rafter.
Rafter also challenges the district court’s denial of a Rule 50 motion for judgment as a
matter of law. We review de novo such denials, United States v. Space Hunters, Inc., 429 F.3d
416, 428 (2d Cir. 2005), setting aside a jury verdict when here 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 . . . such an overwhelming amount of evidence in favor of the movant
that reasonable and fair minded men could not arrive at a verdict against him.” Id. at 429
(quoting Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (internal quotation marks
omitted). After an independent review of the record and relevant case law, we conclude that the
district court properly denied Rafter’s Rule 50 motion. The record contains ample evidence
supporting the jury’s verdict, and we accept the jury’s determination here on issues of witness
credibility.
For similar reasons, we are not persuaded by Rafter’s arguments that the district court
improperly denied her Rule 59 motion for a new trial. We review such denials for abuse of
discretion. See India.com, Inc. v. Dalal, 412 F.3d 315, 320 (2d Cir. 2005). A district court
abuses its discretion when its decision: (1) “rests on an error of law or a clearly erroneous factual
finding”; or (2) “cannot be found within the range of permissible decisions.” Johnson v. Univ. of
Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011) (citation omitted). Furthermore, “[a]
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motion for a new trial ordinarily should not be granted unless the trial court is convinced that the
jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.”
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir. 2007) (internal quotation marks
and alterations omitted). For the reasons we have discussed, the district court’s finding that the
jury’s verdict was neither in error nor a miscarriage of justice is well within its discretion.
Finally, Rafter argues on appeal that the defendants spoliated various pieces of evidence
and challenges the district court’s decision not to impose sanctions. We review such a decision
for abuse of discretion, and the district court’s factual findings in support of that decision for
clear error. See S. New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 143 (2d Cir. 2010).
Here, the magistrate judge denied Rafter’s motions for Rule 11 sanctions because, each time she
moved for sanctions, she failed to comply with Rule 11's requirement that the motion be “made
separately from any other motion.” Fed. R. Civ. P. 11(c)(2). Rafter never sought to comply with
Rule 11, as those requirements were pointed out in the magistrate judge’s orders, by correcting
the defects and filing a proper Rule 11 motion. Even if Rafter had properly moved for Rule 11
sanctions, however, a review of the record does not support Rafter’s contention that the
defendants spoliated evidence.
We have considered Rafter’s remaining arguments on appeal and find them to be without
merit. For the foregoing reasons, the judgment and orders of the district court are hereby
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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