Lesende v. Borrero

Citation752 F.3d 324
Decision Date15 May 2014
Docket NumberNos. 13–1835,13–1985.,s. 13–1835
PartiesSara LESENDE; Victor Lesende, Her Husband, v. Police Officer Arnold BORRERO; City of Newark; Newark Police Department; Sgt. Lillian Carpenter; Capt. Richard Cuccolo; Acting Capt. Crystal Burroughs; Capt. Albert Cicalese; Anthony Ambrose, III, Director of Police; Chief of Police Irving Bradley; John Doe Sgt. Badge No. 6916 ABC Corps 1–10; John Does 1–10. City of Newark, Appellant in No. 13–1835. Sara Lesende; Victor Lesende, Her Husband, Appellants in No. 13–1985.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

OPINION TEXT STARTS HERE

John R. Scott, Esq., (argued), Hardin, Kundla, McKeon & Poletto, Springfield, NJ, for Appellant/Cross–Appellee City of Newark.

Robert D. Kobin, Esq., (argued), Nusbaum, Stein, Goldstein, Bronstein & Kron, Succasunna, NJ, for Appellees/Cross–Appellants Sara Lesende and Victor Lesende, Her Husband.

BEFORE: FISHER, SCIRICA AND COWEN, Circuit Judges.

OPINION

COWEN, Circuit Judge.

This matter requires application of well-settled legal doctrines to an unusual set of facts. As detailed below, Sara Lesende (Lesende) and her husband, Victor Lesende,brought suit against the City of Newark (“the City”) and Police Officer Arnold Borrero. Following a five-day trial, a jury found that both Officer Borrero and the City were liable and awarded Lesende $2,700,000 in compensatory damages. The City moved for remittitur, and its motion was granted; the District Court remitted Lesende's award to $750,000 and informed her of her right to either accept the remitted award or reject it and proceed to a second jury trial, limited to the quantum of her compensatory damages. She chose the latter option.

A second jury was convened and a new trial held, and the second jury awarded Lesende $4,000,000 in compensatory damages. Thereafter, the City moved anew for remittitur. The District Court did not directly resolve that motion. Instead, after conferring with counsel for both Lesende and the City, the court entered a final order, vacating the second jury's verdict, vacating the earlier-entered order that granted the City's motion for remittitur from the first jury's verdict, and reinstating the first jury's verdict in its entirety. The instant appeal and cross-appeal followed.

On appeal, the City attacks the sufficiency of the evidence presented at trial. It also asks us to consider whether the District Court erred either by failing to order a second trial on its liability or instructing the jury to apportion the above-mentioned damages award between Officer Borrero and the City. Finally, it asks us to assign error to the vacatur of the second jury's verdict and reinstatement of the first jury's verdict, contending instead that the District Court should simply have reduced the second jury's verdict to $750,000. Lesende, as evidenced by the cross-appeal, agrees that the vacatur of the second verdict and reinstatement of the first verdict constitute legal error. She argues, however, that error lies in the District Court's entry of a compensatory damages award less than that found by the second jury—i.e., less than $4,000,000.

For the reasons detailed below, though we see little merit in the arguments raised in the appeal or cross-appeal, we will vacate the District Court's final order and remand with instruction that the District Court should resolve the City's motion for remittitur of the second jury's verdict.

I.
A. The Nature of the Lesendes' Lawsuit

The Lesendes' lawsuit was predicated on Lesende's encounter with Officer Borrero on October 18, 2004. The District Court described it as follows:

Mrs. Lesende was pulled over by Mr. Borrero while she was searching for a parking spot near her home in Newark[, New Jersey]. At the time, Mr. Borrero was an officer in the Newark police department, but he was not on duty and was not in uniform. For reasons that are unclear, Mr. Borrero started a loud argument with Mrs. Lesende, claiming that she had been driving her car in an unsafe fashion. Believing that she did not accept his authority, Mr. Borrero produced his badge and gun. He opened her car door, climbed on top of Mrs. Lesende and attacked her with his fists, causing serious injury to her neck, face and ribs. A crowd gathered, and multiple witnesses testified that Mr. Borrero savagely assaulted Mrs. Lesende. When an elderly bystander attempted to intervene, Mr. Borrero turned his weapon on the man and threatened to kill him.

Additional officers arrived at the intersection, and Mrs. Lesende was handcuffed and taken to the police station. Once at the station, Mrs. Lesende was held for the better part of a day without counsel. During that time she was repeatedly harassed by Mr. Borrero. After approximately 12 hours of detention, Mrs. Lesende was charged with assaulting a police officer and resisting arrest and released on $10,000 bail.

In the months following the arrest, Mrs. Lesende was forced to hire counsel and appear in court on multiple occasions to answer the groundless and frivolous charges. At the same time, the Newark Police Department engaged in efforts to intimidate witnesses and discourage any action against Mr. Borrero. Indeed, Mr. Lesende testified that he was told by a Newark police officer that no action would ever be taken by the city against Mr. Borrero. In addition, when Mr. Borrero was brought before [an] Administrative Law Judge on disciplinary charges, the city “neglected” to present his prior disciplinary history, permitting him to lie about the extent of his past misconduct and avoid termination. Borrero's extensive discipline file included 45 prior charges—including multiple findings that Mr. Borrero had either filed false assault charges or was “not credible” in his testimony.

Lesende v. Borrero, No. 06–4967, 2011 WL 6001097, at *1–2 (D.N.J. Nov. 30, 2011). The District Court's description of that incident, which substantially comports with the descriptions appearing in the briefs filed before this Court, has not been challenged.

The Lesendes brought suit in October of 2006. Lesende raised claims against Officer Borrero pursuant to 42 U.S.C. § 1983 (Section 1983) for use of excessive force, false arrest and/or imprisonment, and malicious prosecution. She also raised claims against the City pursuant to Section 1983 and Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for negligently training and supervising Officer Borrero and, separately, for failing to terminate his employment before October 18, 2004. Her husband raised a derivative claim against Officer Borrero and the City for loss of consortium.1

B. The First Trial

The first trial was held in June of 2011. Both the Lesendes and the City were represented by counsel. Officer Borrero was represented during jury selection and during the beginning of trial, but he thereafter appeared pro se and did not present a defense.2

Following the presentation of evidence, neither Officer Borrero nor the City moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). Lesende, however, raised such a motion with respect to each of the three Section 1983 claims raised against Officer Borrero. This colloquy, which concerns both Lesende's motion and the proposed jury questionnaire (i.e., the verdict sheet), followed:

THE COURT: Well, normally I would defer a motion for directed verdict and expect the jury to do the work that I otherwise should have done. And in normal cases no harm has been done that results from that, because I can always reverse it if I think, after further st[u]dy, it's appropriate.

In this case there is a major problem. Should the jury find no, and I conclude there should be a judgment, then the jury would not have directed itself to the really critical question in this case, which is, has Mrs. Lesende proved that she's been deprived of her rights as a result of a custom [or] policy [of] the City of Newark? So I think I'm going to have to rule on the directed verdict motion at this time, and ... I will direct the jury to vote to check yes on each of those three questions. [The e]vidence is so overwhelming. There's no reasonable person that could find that there wasn't a violation of federal rights here by Officer Borrero....

MR. KOBIN[, COUNSEL FOR THE LESENDES]: There is a damage assessment.

THE COURT: Well, that's true, damages will still be an issue.

MR. KOBIN: Obviously I assume that you're not directing a verdict on damages against him.

THE COURT: Oh, no, only on liability.

MS. BENJAMIN[, COUNSEL FOR THE CITY]: With respect to your ruling, the question on damages come[s] with respect to the City of Newark.

THE COURT: What did I do to the City of Newark?

MS. BENJAMIN: The questions that you have on damages, you indicate on the [verdict] sheet if they find yes for 1, 2, 3,[ 3] or 4,[ 4] you have an issue of damages, and maybe this is another issue. If you're directing them to answer yes, for 1, 2[,] and 3, it may be I'm going to [suggest] to the Court that damages need to be separate. There needs to be [ ] separate damages for Officer Borrero then, and one for the City of Newark.

MR. KOBIN: No, your Honor, it's punitive damages as to Officer Borrero, which would still be on the sheet.

THE COURT: That is separate.

MR. KOBIN: Yes.

THE COURT: Th[at] wouldn't affect the City.

MR. KOBIN: If you're directing them to answer yes for 1, 2, and 3, it's your position then that they would only get punitive damages. What if they find no? Let's just hypothetically find no against the City's liability.

THE COURT: Well, then, that's it.

MR. KOBIN: Well then—

MS. BENJAMIN: You follow what I'm saying?

MR. KOBIN: They can still award in this case compensatory damages against Officer Borrero, couldn't they? Am I missing something?

MS. BENJAMIN: It needs to be separate.

MR. KOBIN: No, it's still compensatory.

MS. BENJAMIN: You just ruled that there's a directed verdict with respect to the claims against Officer...

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