Hudson v. District of Columbia

• Citation: 558 F.3d 526
• Decision Date: 03 March 2009
• Docket Number: No. 07-7078.,No. 07-7082.,07-7078.,07-7082.
• Parties: Grace HUDSON and Karim Clayton, Appellees v. DISTRICT OF COLUMBIA et al., Appellants. Grace Hudson, Cross-Appellant v. District of Columbia et al., Cross-Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

558 F.3d 526

Grace HUDSON and Karim Clayton, Appellees v. DISTRICT OF COLUMBIA et al., Appellants.

Grace Hudson, Cross-Appellant v. District of Columbia et al., Cross-Appellees.

No. 07-7078.

No. 07-7082.

United States Court of Appeals, District of Columbia Circuit.

Argued September 8, 2008.

Decided March 3, 2009.

Appeals from the United States District Court for the District of Columbia (No. 02cv02217).

James C. McKay, Jr., Senior Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for the appellants/cross-appellees. Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on brief.

Gregory L. Lattimer, argued the cause for the appellees and cross-appellant.

Before: SENTELLE, Chief Judge, and HENDERSON and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge.

Appellants the District of Columbia (D.C.), Metropolitan Police Department (MPD) Officer Richard Merritt and former MPD Officer John Hackley (collectively, District) appeal jury verdicts finding them liable to Karim Clayton for assault and battery, false arrest and malicious prosecution under D.C. law and for using excessive force against Clayton in violation of section 1 of the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983, and the Fourth Amendment to the United States Constitution. We conclude that the district court erred when it allowed Clayton's counsel to question Merritt about disciplinary actions allegedly brought against him for "improper use of force" and filing "false reports" and then to argue to the jury, in inflammatory terms and unpalliated by a curative instruction, that Merritt acted in conformity with his past "bad cop" conduct when he struck and arrested Clayton here. Because the challenged questioning and argument invited the jurors to find Merritt used excessive force against and falsely arrested Clayton based on similar "prior bad acts," in violation of Federal Rule of Evidence 404(b)—an invitation the jurors may well have embraced—we vacate the verdicts in Clayton's favor and remand for a new trial on the underlying claims. In addition, we affirm the district court's post-trial grant of judgment as a matter of law setting aside the jury verdict in favor of Grace Hudson, Clayton's grandmother, on her claim of negligent infliction of emotional distress.

I.

Sometime during the evening of November 8, 2001, Merritt and Hackley, who were patrolling in a marked police car, stopped in the 600 block of Keefer St. NW and got out of their car. There followed a confrontation between the officers and two individuals, Clayton and his friend Gad Doreus, the details of which were disputed at trial. It is undisputed, however, that during the encounter Merritt gave chase to Doreus, Clayton and Doreus escaped into Hudson's nearby house, closing the door behind them, and Merritt pursued them inside. A scuffle ensued during which Hudson was knocked to her living room floor and, in the end, Clayton was arrested on the charge of assaulting an officer. At some point Merritt struck Clayton at least once. In a subsequent criminal trial in D.C. Superior Court, Clayton was acquitted of one count of assault and one count of possessing a prohibited weapon.

On November 8, 2002, Clayton and Hudson filed the complaint in this action, alleging causes of action for excessive force, assault and battery, false arrest, malicious prosecution and negligent or intentional infliction of emotional distress based on Merritt's and Hackley's conduct the night of November 8, 2001. On September 2, 2005, after an eight-day trial, a jury returned a verdict against the District, awarding Hudson compensatory damages of $25,000 on her claim of negligent infliction of emotional distress and Clayton compensatory damages totaling $81,000 and punitive damages totaling $15,000 on his claims of excessive force, assault and battery, false arrest and malicious prosecution.

On September 30, 2005, the District filed a motion for a new trial on all of Clayton's and Hudson's successful claims, for judgment as a matter of law on Clayton's false arrest and malicious prosecution claims and for remittitur of Clayton's false arrest award. In a memorandum opinion and order filed April 2, 2007, the district court denied the motion as to Clayton's claims but granted judgment as a matter of law on Hudson's claim for negligent infliction of emotional distress, vacating her damage award. Hudson v. District of Columbia, 517 F.Supp.2d 40, 57 (D.D.C.2007). The District and Hudson subsequently filed notices of appeal.

II.

We address in turn the District's and Hudson's appeals.

A. The District

As a preliminary matter, Clayton challenges the court's jurisdiction on the ground that the District failed to file a timely and effective notice of appeal pursuant to Federal Rules of Appellate Procedure 3 and 4. We conclude that we have jurisdiction over the District's appeal.

Under Rule 4(a)(1)(A), the District was required to file a notice of appeal in the district court "within 30 days after the judgment or order appealed from"—that is, no later than May 2, 2007, 30 days after the April 2, 2007 order disposing of the District's post-trial motions. Fed. R.App. P. 4(a)(1)(A). Clayton does not dispute that the District filed a timely notice of appeal on May 2, 2007 but argues it was ineffective because it did not comply with the directive in Rule 3(c) that the "notice of appeal must ... designate the judgment, order, or part thereof being appealed." Fed. R.App. P. 3(c)(1)(B). Clayton argues the notice was defective because it designated for appeal "the judgment of this Court (Collyer, J.) entered on the 2nd day of April, 2007 against defendants and in favor of Grace Hudson," Notice of Appeal, Hudson v. District of Columbia, C.A. No. 02-2217 (D.D.C. filed May 2, 2007), whereas their appeal was in fact from the judgment against the defendants and in favor of Karim Clayton. Clayton's argument is hyper technical and ignores the rationale underlying Rule 3(c)'s requirements: to ensure that an appellant provides "fair notice to the opposing party and to the court," Anderson v. District of Columbia, 72 F.3d 166, 168 (D.C.Cir.1995). The District's notice of appeal provided adequate notice to both Clayton and this court that "the judgment, order, or part thereof being appealed," Fed. R.App. P. 3(c)(1)(B), was, as identified in the notice, "the judgment ... entered on the 2nd day of April, 2007 against defendants." Although the additional phrase "and in favor of Grace Hudson" was not technically accurate, this defect "did not mislead or prejudice" Clayton, Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), because the notice "unambiguously inform[ed] the opposing counsel and the district court" of the particular order being appealed, Anderson, 72 F.3d at 168. Moreover, it was obvious to both Clayton and the court that the District intended to appeal the designated order filed April 2, 2007 insofar as the order favored Clayton (rather than Hudson) as this was the only respect in which the order was adverse to, and therefore appealable by, the District. Thus, the notice of appeal was effective and we have jurisdiction to consider the merits of the District's appeal. Cf. Foman, 371 U.S. at 181-82, 83 S.Ct. 227 (finding notice of appeal from denial of post-dismissal motion to vacate provided "effective, although inept" notice of intent to appeal dismissal itself); Anderson, 72 F.3d at 168 ("because it was obvious in which court his appeal properly lay, [appellant] gave fair notice to the opposing party and the court" notwithstanding notice of appeal "improperly designated the United States Supreme Court as the court to which the appeal was taken"); Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988) (although requirements of Rules 3 and 4 are jurisdictional, "if a litigant files papers in a fashion that is technically at variance with the letter of a procedural rule, a court may nonetheless find that the litigant has complied with the rule if the litigant's action is the functional equivalent of what the rule requires").¹

The District contends that the district court abused its discretion when it denied the District's motion for a new trial on all of the claims notwithstanding Clayton's counsel's improper "prior bad acts" cross-examination and closing argument. Hudson, 517 F.Supp.2d at 51-55; see Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 166 (D.C.Cir. 2007) ("We review the district court's denial of [the] motion for a new trial `only for an abuse of discretion.'" (quoting Daskalea v. District of Columbia, 227 F.3d 433, 443 (D.C.Cir.2000))). We agree with the District that the trial court committed reversible error and therefore remand for a new trial.

During Clayton's counsel's cross-examination of Merritt, the following colloquy occurred:

Q: Before we go on any further, would it be fair to say that you have issues with anger?

A: No.

Q. Would it be fair to say that you have issues with your veracity?

A. No, no more than anyone else.

[Defense Counsel]: I object unless there's some good faith belief that he can give a positive answer to these questions.

[Clayton's Counsel]: We're getting there.

The Court: Well let us proceed. If there's no support for the questions, then we can direct the jury.

Q. Now haven't you in fact been disciplined for those things? He can't help you now.

[Defense Counsel]: Yes, I can because I object. I don't know what he is talking about. I think we should take a proffer at the bench, and then if he has some evidence because it's very prejudicial to imply stuff that he can't prove.

Transcript of Trial, Hudson v. District of Columbia, C.A. No. 02-2217, 103 (D.D.C. Aug. 25, 2005) (8/25/05 Trial Tr.)....