15-1635 Gordon v. Arcanum Investigations Inc., et al.

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 FILE D 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 FEDERA L 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
15 th day of April, two thousand sixteen.

Present: ROSEMARY S. POOLER, DEBRA ANN LIVINGSTON, RAYMOND J. LOHIER, JR., Circuit Judges

.

_____________________________________________________

ERIK H. GORDON,

Plaintiff-Appellant

,

v. 15-1635-cv

ARCANUM INVESTIGATIONS, INC., DAN COHN,

Defendants-Cross-Claimants- Cross-Defendants-Appellees

. 1

_____________________________________________________

Appearing for Appellant: Justin M. Sher (Erica A. Wolff, on the brief ), Sher Tremonte LLP, New York, NY.

Appearing for Appellees: Gre gory Saracino (James Plousadis, on the brief ), Milber, Makris, Plousadis & Seiden, LLP , White Plains, NY.

1 The Clerk of Court is directed to amend the caption as above.2 Appeal from the United States Di strict Court for the Southern District of New York (Berman, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

.

Appellant Erik H. Gordon appeals from the April 30, 2015 judgment entering a jury verdict in favor of defendants-appellees Arcanum Investigations, Inc. and Dan Cohn. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

In 2009, non-party defendant Aron Leifer obtaine d a license plate number registered to a car owned by Gordon. Defendant-appellee Arcanum Investiga tions, Inc., a private investigation firm owned by defendant-appellee Dan Cohn, operate s a website called Docusearch.com and acts
as a “second-tier” reseller of state motor vehicl e department (“DMV”) records. Docusearch.com had an agreement with another company, Softech In ternational, Inc., a Fl orida corporation that purchases information from DMVs and sells it to clients such as Arcanum. Leifer used
Docusearch.com to obtain the name and address of Gordon. Leifer allegedly opened an account
with Docusearch.com under the alias “Jack Lore n,” and claimed to be employed by a nonexistent company called “Bodyguards.com.” While Leifer paid for the service with a credit card, he said the name on the credit card was “Jack Loren,” wh ich was not the name that was actually on the credit card. After obtaining Gor don’s name and address, Leifer then allegedly placed a number of “threatening” and “harassing” phone calls to individuals associated with Gordon. Gordon subsequently filed this action in the district court for the S outhern District of New York (Berman, J. ) claiming that defendants-appellees Arca num and Dan Cohn breached their duty of
reasonable care under the Driver’s Pr ivacy Protection Act of 1994 (“DPPA”).

After a trial, a jury returned a verdict in favor of defe ndants-appellees. Gordon appeals from the judgment entered in connection with the ju ry’s verdict, alleging that the district court’s conduct was prejudicial against him, that the district court abus ed its discretion in connection with several evidentiary rulings, a nd that he was otherwise denied a fair trial. We find no merit in any of Gordon’s claims.

Gordon first argues that the district court asked a numb er of questions and made inappropriate comments during his counsel’s op ening statement and Gordon’s testimony. A jury verdict can be reversed if “the judge’s behavior was so prejudicial that it denied [a party] a
fair . . . trial.” Manganiello v. City of New York , 612 F.3d 149, 169 (2d Cir. 2010) (alteration in original) (internal quotation marks omitted). Whil e a court may not express its “opinion on an ultimate issue of fact in front of the jury or [argue] for one of the parties[,]” id.

, the court retains the discretion to “interpose re levant questions to witnesses to clarify both legal and factual issues and thus minimize possible confusion in the jurors’ minds,” Care Travel Co. v. Pan Am. World Airways, Inc. , 944 F.2d 983, 991 (2d Cir. 1991) (internal quotation marks omitted). The comments Gordon complains of are simply not pr ejudicial. For example, Gordon complains that the judge interrupted his counsel during his ope ning statement when counsel described to the jury that a “stranger” had obtai ned Gordon’s personal information. The district court interrupted and simply asked, “Just for clarity, we mean Mr . Leifer, by the stranger ?” App’x at 308. This3 question evokes no bias or prejudic e; instead, it seems the district court’s intention was to ensure that “the facts [were] clea rly presented” to the jury. Care Travel Co. , 944 F.2d at 991. Judges are permitted to “summarize the evidence for the jury and, if he [or she] chooses, . . . comment on it” and may also “interpose relevant questions to witnesses to clarif y both legal and factual issues and thus minimize possible conf usion in the jurors’ minds.” Id. (internal quotation marks omitted). The questions and comments that Gordon chal lenges do not indicate that the court was “challenging the credibility of the witnesses,” United States v. Victoria , 837 F.2d 50, 54 (2d Cir. 1988), or that the court was “comm unicat[ing] to the jury its impr essions that . . . testimony was unworthy of belief,” United States v. Mazzilli , 848 F.2d 384, 388 (2d Cir. 1988). Even if any of the court’s comments was remotely prejudicial, the court issued at least tw o curative instructions to the jury to ensure that they did not draw adverse inferences from any comments that the
district court made during the trial.

Gordon also challenges the district court’s d ecision to admit the testimony of one of the defendants-appellees’ expert witn esses, Patrick O’Leary, who wa s an expert in credit-card vending transactions. A “trial j udge has broad discretion in th e matter of the admission or exclusion of expert evidence, a nd his action is to be sustaine d unless manifestly erroneous.”
Salem v. U.S. Lines Co. , 370 U.S. 31, 35 (1962). Because O’Lear y’s testimony was relevant as to
whether Cohn exercised reasonable care when a ccessing Gordon’s personal DMV records, we find no merit to Gordon’s argument that the admission of his testimony was “manifestly
erroneous.”

Gordon also complains of two decisions made by the district court that bear on the issue of damages in the case. First, he argues the district court erred by pr ecluding the testimony of Gordon’s proposed expert witness Philip Kleckner, who was to testify about Gordon’s future damages. Second, he argues the district court erro neously instructed the jury that it should not consider “emotional injury” when assessing damages. Because th e jury did not find defendants liable, it never reached the issue of damages. Thus, even if either of these decisions was erroneous, they are moot. See Knitwaves, Inc. v. Lollytogs Ltd. , 71 F.3d 996, 1012 (2d Cir. 1995).

Gordon also challenges several other instructions th e court delivered to the jury regarding the following issues: (1) “impermissible purpos e”; (2) strict liability; and (3) proximate
causation. “It is well established that the instruct ion may not be judged in artificial isolation, but
must be considered in the context of the in structions as a whole and the trial record.” Estelle
v. McGuire , 502 U.S. 62, 72 (1991) (internal quotation marks omitted).

The first two instructions were relevant clarific ations, as this court he ld in a prior appeal involving this case that the DPPA wa s not a strict liability statute, and thus, while the jury had to
find that the information was disclosed for an “i mpermissible purpose,” this was, not by itself,
sufficient to find a vi olation of the DPPA. See Gordon v. Softech Int’l., Inc. , 726 F.3d 42, 50 (2d Cir. 2013) (“ Gordon I ”) (holding that “a strict liability standa rd is inconsistent with the DPPA as a whole”). Instead, the jury had to find not onl y that the information was disclosed for an “impermissible purpose,” but also that defendant s-appellees breached their duty of reasonable
care under the DPPA.4 Gordon’s complaint that the judge erred by inst ructing the jury that the disclosure had to have proximately caused Gordon’s al leged injuries also has no mer it. In holding that defendants had a duty of reasonable care under the DPPA, this Court implicitly held th at the statute imposed a negligence standard for liability. See Gordon I , 726 F.3d at 54 (noting that “the [DPPA’s] use of the word ‘knowingly’ is not inconsiste nt with the notion that some duty of care exists . . . . [and that] [n]egligence law in particular frequently invokes the concept of constructive knowledge when deciding whether a pa rticular outcome was foreseeable”). Indeed, it is well-established law that in order to prove that a defendant is liab le for negligent conduct, the plaintiff must show proximate causation. See, e.g.

, Sawyer v. Wight , 196 F. Supp. 2d 220, 227 (E.D.N.Y. 2002) (“To prove causation, plaintiffs must show that breach of a duty was both the cause in fact and proximate cause of their inju ry.”). Thus, the district court’s instruction did not “mislead[] the jury as to the correct legal stan dard or . . . [in]adequately inform the jury on
the law.” LNC Invs., Inc. v. First Fidelity Bank, N.A. New Jersey , 173 F.3d 454, 460 (2d Cir. 1999).

We have considered the remainder of Gor don’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk