13-4282-cv (L)
Jackson v. City of New York


                               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.

      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 21st day of April, two thousand fifteen.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
NANCY JACKSON,
                                 Plaintiff-Appellant,

                              v.                                         13-4282-cv (L),
                                                                         13-4306-cv (CON)

CITY OF NEW YORK, JOHN DAMMACCO, Police
Officer, MONTESQUIEU, Sergeant, JOHN DOE, Police
Officer #1, P.O. SHAWN JOHNSTON, P.O. DANIELLE
CAMPO, RACHARD ROE (names and number of whom
are unknown at present) and other unidentified members of
the New York City Police Department,
                           Defendants-Appellees,




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QUEENS COUNTY DA RICHARD BROWN, ADA LEE
BERGSTEIN,
                                 Defendants.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          ROBERT RAMBADADT, The Rambadadt Law
                                                  Office, New York, New York.

APPEARING FOR APPELLEES:                   RONALD E. STERNBERG, of Counsel, for
                                           Zachary W. Carter, Corporation Counsel of the
                                           City of New York, New York, New York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (William F. Kuntz, II, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on October 8, 2013, is AFFIRMED.

       Plaintiff Nancy Jackson, who sued pursuant to 42 U.S.C. § 1983 for unlawful

seizure, false arrest, excessive force, failure to intervene, and malicious prosecution,

appeals from a judgment entered in favor of defendants after a jury trial. We assume the

parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

       Jackson argues that the district court erred in entering judgment as a matter of law

because she presented legally sufficient evidence to prove each of her claims. 1 This


1
  Although Jackson argues that judgment as a matter of law was entered pursuant to Rule
50(a), the district court expressly stated that it acted “pursuant to Rule 50(b)(3).” J.A. 29;
compare Fed. R. Civ. P. 50(a) (stating that motion may be made “at any time before the
case is submitted to the jury” (emphasis added)), with Fed. R. Civ. P. 50(b) (“If the court
does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is
considered to have submitted the action to the jury subject to the court’s later deciding the
legal questions raised by the motion. No later than 28 days after the entry of judgment[,]

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argument is largely beside the point, however, given the jury’s verdict for defendants on all

of Jackson’s claims, except that for false arrest against Officer Montesquieu. Thus, any

error by the district court in stating that it was granting judgment as a matter of law

generally, as opposed to specifically on the false arrest claim based on qualified immunity,

was harmless because vacating the district court’s judgment based on Fed. R. Civ. P.

50(b)(3) would result only in reinstatement of the judgment based on the jury’s verdict in

favor of defendants. See, e.g., Tolbert v. Queens Coll., 

, 78 (2d Cir. 2001)

(reversing district court’s entry of judgment as a matter of law under Rule 50(b) and

remanding for entry of amended judgment reinstating jury verdict). At no point below did

Jackson argue that the jury verdict was against the weight of the evidence or seek a new

trial on that basis under Rule 59. See Farrior v. Waterford Bd. of Educ., 

, 634

(2d Cir. 2002); see also Fed. R. Civ. P. 59(b) (“A motion for a new trial must be filed no

later than 28 days after the entry of judgment.”). Thus, she has forfeited the right to do so

on appeal. See Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 

, 404 (2006).

       As for Jackson’s false arrest claim, the district court did not clearly state whether it

entered judgment for Officer Montesquieu based on Jackson’s failure to present legally

sufficient evidence, qualified immunity, or both. In any event, any error was harmless in

light of the jury’s determination that Montesquieu was entitled to qualified immunity,

which Jackson does not challenge on appeal. See Zalaski v. City of Hartford, 723 F.3d

. . . the movant may file a renewed motion for judgment as a matter of law . . . .), and Fed.
R. Civ. P. 50(b)(3) (“In ruling on the renewed motion, the court may . . . direct the entry of
judgment as a matter of law.”).

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382, 390 (2d Cir. 2013) (“Even where a reviewing court . . . concludes that probable cause

to arrest was lacking . . . , an officer will still be entitled to qualified immunity if he can

establish that there was ‘arguable probable cause to arrest.” (internal quotation marks and

alteration omitted)); see also Pearson v. Callahan, 

, 245 (2009) (stating that “it

is improper to subject [officers] to money damages for their conduct” where “unlawfulness

of [their] conduct . . . was not clearly established” and officers are entitled to qualified

immunity).2 Accordingly, Jackson has identified no reversible error in the district court’s

entry of judgment as a matter of law under Rule 50(b).

       Jackson has not argued—either before the district court or on appeal, until her reply

brief—that the jury’s verdict was inconsistent under Rule 49, insofar as it both found

Officer Montesquieu entitled to qualified immunity and awarded punitive damages against

him. See Cash v. Cnty. of Erie, 

, 342–44 (2d Cir. 2011) (observing that, in

some circumstances, inconsistent verdicts may require that judgment be vacated). Nor


2
  Because Jackson did not object to the district court’s decision to charge the jury on
qualified immunity—either below or on appeal—any such argument is waived or at least
forfeited. See Local Union No. 38, Sheet Metal Workers’ Int’l Ass’n v. Pelella, 

, 87 (2d Cir. 2003) (waiver); Presidential Gardens Assocs. v. U.S. ex rel. Sec’y of Hous.
& Urban Dev., 

, 141 (2d Cir. 1999) (forfeiture). We express no view as to
the propriety of that procedure here. Compare Stephenson v. Doe, 

, 81 (2d
Cir. 2003) (observing that “ultimate legal determination of whether qualified immunity
attaches to a law enforcement agent’s actions is a question of law better left for the court to
decide” (internal quotation marks omitted)), with Taravella v. Town of Wolcott, 

, 135 (2d Cir. 2010) (noting that qualified immunity presents “mixed question of law
and fact,” and “[a]lthough a conclusion . . . as a matter of law may be appropriate where
there is no dispute as to the material historical facts, if there is such a dispute, the factual
question must be resolved by the factfinder” (emphasis added) (internal quotation marks
omitted)).

                                               4
has she argued that any error in the jury instructions requires a new trial under Rule 59.

See Velez v. City of New York, 

, 134 (2d Cir. 2013) (stating that erroneous

jury instruction requires new trial, unless error is harmless). As a result, any such

arguments are waived or certainly forfeited, and we do not further consider them here.

See Kosmynka v. Polaris Indus., Inc., 

, 83 (2d Cir. 2006) (“It is well established

that a party waives its objection to any inconsistency in a jury verdict if it fails to object to

the verdict prior to the excusing of the jury.”); Local Union No. 38, Sheet Metal Workers’

Int’l Ass’n v. 

(“A party that fails to object to a jury instruction at

trial waives the right to make that instruction the basis for an appeal.” (internal quotation

marks omitted)); see also Presidential Gardens Assocs. v. U.S. ex rel. Sec’y of Hous. &

Urban 

(holding argument forfeited where party failed to raise it until

reply brief).

       We have considered Jackson’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                     FOR THE COURT:
                                     CATHERINE O’HAGAN WOLFE, Clerk of Court




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