Udemba v. Nicoli

• Decision Date: 09 November 2000
• Docket Number: No. 00-1246,00-1246
• Citation: 237 F.3d 8
• Parties: (1st Cir. 2001) OLIVER C. UDEMBA, Plaintiff, Appellant, v. PAUL NICOLI, ET AL., Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 8

237 F.3d 8 (1st Cir. 2001)

OLIVER C. UDEMBA, Plaintiff, Appellant, v. PAUL NICOLI, ET AL., Defendants, Appellees.

No. 00-1246

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

Heard November 9, 2000

Decided January 10, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Stephen B. Hrones, with whom Aderonke O. Lipede and Hrones & Garrity were on brief, for appellant.

Leonard H. Kesten, with whom Kurt B. Fliegauf, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten were on brief, for appellees.

Before Selya, Circuit Judge, Coffin, Senior Circuit Judge, and Stahl, Circuit Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Oliver C. Udemba sued the Town of Framingham and two Framingham police officers, Paul Nicoli and Ronald Brandolini, for violating his civil rights by means of false arrest and the use of excessive force. 42 U.S.C. 1983. Following a full-dress trial, a jury returned a take-nothing verdict. Udemba appeals, claiming that the trial court committed reversible error both in denying his motion for judgment as a matter of law and in allowing the admission of certain evidence. Concluding, as we do, that Udemba failed properly to preserve the former claim and that his lamentations about the district court's evidentiary rulings do not warrant a new trial, we affirm the judgment below.

I. BACKGROUND

We present an overview of the facts as the jury might have found them, consistent with record support. We embellish this barebones account in the course of our subsequent discussion of the appellant's specific assignments of error.

Inclement weather dogged the Boston area during the afternoon and early evening of December 21, 1995. Despite the bad weather, the appellant did some extra driving at his wife's request. The Udembas were immigrants, and Mrs. Udemba had lost her work permit (colloquially known as a "green card") several months earlier. Since she was anxiously awaiting its replacement, she asked the appellant to check their post office box in Boston. The appellant obligingly detoured through Boston on his way home from his office in Canton.

After retrieving the mail, the appellant repaired to the family homestead in Framingham. When he arrived, he gave the mail to his son. Mrs. Udemba became upset when she found that the mail did not contain the anticipated green card. She accused the appellant of taking it, grabbed him by the shirt, and made threatening remarks. The appellant called the police.

Officers Nicoli and Brandolini responded to the appellant's call. The dispatcher informed them en route of complaints from neighbors about a disturbance at the Udembas' home. The officers entered the home -- a town house in a row of town houses -- and were confronted by the appellant (whom they described as "loud," "agitated," and "uncooperative"). They asked him to be seated in the living room. They then proceeded into the kitchen and interviewed Mrs. Udemba. She was five months pregnant at the time, and visibly upset.

Mrs. Udemba initially told the police that her husband had punched her in the stomach (a statement that she soon retracted). She went on to complain bitterly that he was withholding her green card. The officers brought her to the living room and, in her presence, questioned the appellant about the green card. The appellant denied his wife's allegations. Words were exchanged. Although there is conflicting testimony regarding the substance of this exchange, the parties agree that the decibel level was high.

According to the police, the conversation ended when the appellant made a threatening move toward Officer Nicoli. When Nicoli attempted to grab him, the appellant dashed toward the door. A struggle ensued. The officers ultimately subdued the appellant and, as they attempted to handcuff him, he bit Nicoli. They then arrested him for breach of the peace and led him outside in handcuffs. At that time, they noticed that a small crowd had gathered. In due course, the officers transported the appellant to the station house and charged him with disturbing the peace, Mass. Gen. Laws ch. 272, 53, and assault and battery on a police officer, id. ch. 265, 13D.

Some time later, the appellant was found not guilty on the criminal charges. He thereafter sued, remonstrating that the officers had violated his civil rights by falsely arresting him and by using excessive force.¹ The case came on for trial before a jury on August 23, 1999. At the close of the evidence, the appellant moved for judgment as a matter of law. Fed. R. Civ. P. 50(a). The lower court denied the motion, and the jury subsequently returned a verdict in favor of the defendants. The appellant eschewed the filing of any post-trial motions. He did, however, launch an appeal.

II. JUDGMENT AS A MATTER OF LAW

The appellant argues that the district court erred in denying his motion for judgment as a matter of law on the false arrest component of his section 1983 claim because the evidence permitted only one conclusion: that the police officers lacked probable cause to arrest him for disturbing the peace.² We conclude that the appellant has not properly preserved this point for appellate review.

In order to challenge on appeal the denial of a motion for judgment as a matter of law, the challenger must first have presented the same claim to the district court. Hammond v. T.J. Litle & Co., 82 F.3d 1166, 1171 (1st Cir. 1996); Jusino v. Zayas, 875 F.2d 986, 991 (1st Cir. 1989). Indeed, no less an authority than the Supreme Court has declared that an appellate court is "without power to direct the District Court to enter judgment contrary to the one it had permitted to stand" absent a motion for judgment notwithstanding the verdict in district court. Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 218, 91 L. Ed. 849, 67 S. Ct. 752 (1947). In this instance, the appellant moved for judgment as a matter of law at the close of all the evidence. Fed. R. Civ. P. 50(a). The district court denied that motion the same day and the jury subsequently returned a verdict. The appellant thereafter failed to renew his motion. That omission is fatal to the claim that he attempts to advance on appeal. We explain briefly.

The Civil Rules provide that when a trial court denies a motion for judgment as a matter of law prior to the submission of a case to the jury, the moving party may renew the motion no later than ten days after the entry of judgment. Fed. R. Civ. P. 50(b). If the moving party fails so to renew the motion, he forfeits any entitlement to appellate review of the earlier denial. See Cantellops v. Alvaro-Chapel, 234 F.3d 741, 743, (1st Cir. 2000); Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269-71 (5th Cir. 1998); Varda, Inc. v. Ins. Co. of N. Am., 45 F.3d 634, 638 (2d Cir. 1995); see also 9 James Wm. Moore et al., Moore's Federal Practice 50.41 (3d ed. 1999). Thus, to preserve for appeal the district court's rejection of a motion for judgment as a matter of law made at the close of the evidence, the movant must seasonably renew that motion post-verdict. The appellant's failure to comply with this requirement forecloses his attempted appeal of the district court's earlier ruling denying his motion for judgment as a matter of law.

To be sure, even when a party has failed to make the proper motion below, this court retains the authority to "inquire whether the record reflects an absolute dearth of evidentiary support for the jury's verdict." Faigin v. Kelly, 184 F.3d 67, 76 (1st Cir. 1999). Withal, this authority must be exercised sparingly, Correa v. Hosp. San Francisco, 69 F.3d 1184, 1196 (1st Cir. 1995), and the circumstances of this case do not lend themselves to its use.

An officer has probable cause to arrest a person for disturbing the peace if that person, in the officer's presence, engages in unreasonably disruptive conduct that annoys or disturbs one or more other individuals. Commonwealth v. Orlando, 371 Mass. 732, 359 N.E.2d 310, 312 (Mass. 1977). In denying the appellant's pre-verdict motion for judgment as a matter of law, the district court found that the record contained "sufficient evidence . . . for [the jury] to find that there was probable cause to believe that the offense of disturbing the peace took place and it took place in [the officers'] presence." Given the elements of the offense and the evidence of record here (particularly the testimony anent the appellant's behavior, his wife's agitation, the neighbors' complaints, and the gathered crowd), this finding does not seem so obviously insupportable as to warrant abandonment of the usual principles of forfeiture and procedural default.

III. EVIDENTIARY ISSUES

The appellant raises three different, but arguably related, evidentiary issues. We deal with them sequentially, keeping in mind that a trial court enjoys considerable discretion in connection with the admission or exclusion of evidence, and that its rulings in that regard are reviewed only for abuse of that discretion. Iacobucci v. Boulter, 193 F.3d 14, 20 (1st Cir. 1999).

A.

The appellant asseverates that the district court erred in admitting evidence of his arrest, on or about June 15, 1997, for striking his spouse. In his view, this information constituted inadmissible character evidence under Federal Rule of Evidence 404(b) and, in all events, carried so significant a potential for prejudice that the lower court should have precluded its introduction under Federal Rule of Evidence 403.

The facts are straightforward. The appellant himself set the stage for the admission of the evidence that he now seeks to challenge. In elaboration of his claimed damages, he told on direct examination about his humiliation when news of his arrest appeared in the local newspaper and emphasized the mental anguish that followed. Since the appellant did not testify to a closed period of emotional distress, defense counsel sought to minimize this open-ended claim by inquiring about...