15-2049

Pistolesi v. Calabrese

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

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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 1 day of December, two thousand sixteen. st

PRESENT: DENNIS JACOBS,

ROSEMARY S. POOLER,

Circuit Judges.

GEOFFREY W. CRAWFORD,

*

District Judge.

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RENATO PISTOLESI, ALLTOW, INC.,

ACTION AUTOMOTIVE COLLISSION &

MECHANICAL INC.,

Plaintiffs-Appellants,

-v.- 15-2049-cv

CARL CALABRESE, individually, MARTIN

NOVICK, individually, MATTHEW

ALEXANDER, individually, JENNIFER

NIZNIK, individually, PAUL ITALIANO,

individually, ALAN WEITLICH,

 Judge Geoffrey W. Crawford, United States District

*

Court for the District of Vermont, sitting by designation.

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individually, JOHN VISENTIN, VILLAGE

OF WAPPINGERS FALLS, DENISE CALABRESE 

Defendants-Appellees,

BRIAN SMITH, individually, JOSH

KEMLAGE, individually, J. ERNS,

individually, SEAN MCNEIL,

individually, M.A. RODRIGUEZ,

individually, RAFAEL TORRES,

individually, P. CAPPARELLI,

individually, MARK LIBERMANN,

individually, MARK KEMLAGE,

individually,

Defendants.

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FOR APPELLANT: MICHAEL H. SUSSMAN, Sussman &

Watkins, Goshen, NY.

FOR APPELLEES: MONTGOMERY L. EFFINGER,

O’Connor, McGuinness, Conte,

Doyle, Oleson, Watson & Loftus

LLP, White Plains, NY. 

Appeal from the judgment of the United States District

Court for the Southern District of New York (Seibel, Aspen,

JJ.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

AND DECREED that the judgment of the district court be

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

Plaintiffs-appellants Renato Pistolesi, Alltow, Inc.,

and Action Automotive Collision and Mechanical, Inc., appeal

from the judgment of the United States District Court for

the Southern District of New York (Seibel, Aspen, JJ.). We

assume the parties’ familiarity with the underlying facts,

the procedural history, and the issues presented for review.

1. Appellants request a new trial on their First

Amendment-based retaliation claim, arguing that the district

court improperly excluded evidence. Appellants complain

that the district court wrongly excluded (a) three exhibits

purporting to demonstrate the defendants’ disparate

treatment of Action and Alltow compared to other towing

companies, and (b) testimony of a former employee of the

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Village of Wappingers Falls (“the Village”), purporting to

demonstrate Police Commissioner Renato Calabrese’s animus

toward Pistolesi. The district court excluded the evidence

on relevance grounds.

“We review a district court’s evidentiary rulings

deferentially, mindful of its superior position to assess

relevancy . . . .” United States v. Abu-Jihaad, 630 F.3d

102, 131 (2d Cir. 2010). We will reverse a district court

on an evidentiary issue only if it commits an abuse of

discretion, which requires us to find that “the trial judge

ruled in an arbitrary and irrational fashion.” United

States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001) (quoting

United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996)).

a. Appellants argue that the documentary exhibits were

relevant because they provided circumstantial support for

their assertion that the Village removed Alltow from the Tow

List because of Pistolesi’s protected speech. The exhibits 1

relate to Calabrese’s treatment of two instances in which

the Village received complaints about other businesses on

the Tow List. Pistolesi argues that the exhibits

demonstrate that Calabrese dealt with these companies more

leniently than he did with Alltow after a customer

complained about Alltow’s service, thereby suggesting that

Calabrese’s treatment of Alltow was motivated by retaliatory

animus. 

However, the complaints about these two other companies

differ in material respects from the complaint about Alltow.

For example, the total amount of Alltow’s challenged bill

was considerably higher than the amounts charged by the

other companies; and the owners of the other companies took

corrective measures, such as reprimanding their employees or

lowering the total bill, whereas Pistolesi took no such

 Appellants also assert that the excluded documents 1

and testimony were relevant because they would undermine a

defense potentially available to the defendants-appellees. 

The appellants contend that the evidence would be relevant

to both this defense and the appellants’ prima facie

retaliation claim “[f]or similar reasons.” Appellant’s

Opening Br., at 20. Since we find that the evidence can be

properly excluded as irrelevant to the appellants’

retaliation claim, the same is true regarding the

defendants-appellees’ possible defense. 

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measures. Because of these factual differences, we cannot

say that the district court’s conclusion that the exhibits

were irrelevant to the First Amendment claim was “arbitrary

or irrational.” Dhinsa, 243 F.3d at 649. 

Even were we to decide that the exhibits were relevant,

we would not order a new trial. Because of the marginal

probative value of the evidence, and the need to litigate

the particulars of what occurred in these other transactions

and complaints, the district court could properly exclude

this evidence on the basis that its probative value would be

substantially outweighed by undue delay. See Fed. R. Evid.

403. 

b. The district court also did not abuse its

discretion by excluding as irrelevant the testimony of John

Fenton, a former Village employee. Pistolesi asserts that

Fenton would testify that, soon after Pistolesi’s protected

speech, Calabrese called Pistolesi a “scumbag” and said he

“intended to run Mr. Pistolesi out of the village.” J.

App’x at 1433-34. However, the district court was skeptical

that Fenton’s testimony would be probative of whether

Pistolesi’s protected speech caused Alltow’s removal from

the Tow List. This skepticism is justified by deposition

testimony in which Fenton stated that Calabrese made

derogatory comments about Pistolesi because Pistolesi “was

consistently breaking the law with respect to the zoning--or

. . . the towing list.” Id. at 1433. Because Fenton

suggested that Calabrese’s animus toward Pistolesi was

driven by factors other than Pistolesi’s protected speech,

the district court’s exclusion of Fenton’s testimony did not

abuse discretion. 

Since we find no reversible error as to any of the

district court’s evidentiary rulings, appellants are not

entitled to a new trial on their First Amendment claim.

2. Action appeals the district court’s grant of

summary judgment on its Equal Protection Clause claim. We

“review a . . . grant of summary judgment de novo,

construing the evidence in the light most favorable to the

non-moving party and drawing all reasonable inferences in

its favor.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113

(2d Cir. 2005). We affirm a grant of summary judgment only

if there is no genuine dispute as to any material fact, and

the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

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Action pursues a “class of one” equal protection claim,

asserting that the appellees discriminated against it and

improperly removed it from the Tow List. To set out a valid

“class of one” claim, a plaintiff must “allege[] that [it]

has been intentionally treated differently from others

similarly situated and that there is no rational basis for

the difference in treatment.” Ruston v. Town Bd. for

Skaneateles, 610 F.3d 55, 58 (2d Cir. 2010) (quoting Village

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

curiam)). The plaintiff must demonstrate that “no rational

person could regard the circumstances of the plaintiff to

differ from those of a comparator to a degree that would

justify the differential treatment on the basis of a

legitimate government policy.” Id. at 59-60 (quoting

Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.

2006)).

Action failed to identify sufficiently similar

comparators. After Action’s removal from the Tow List, only

Alltow and one other company remained. That other company

is therefore the only comparator upon which Action can base

its class-of-one claim. But Action is co-owned by

Pistolesi, who also owns another company on the Tow List

(Alltow), whereas the owner of the other company does not

own multiple businesses on the list. A factfinder could

conclude that the Village removed Action from the Tow List

to avoid the unfairness of having a company owned by

Pistolesi being called in sequence to perform a tow twice as

often as the non-Pistolesi-owned company. Contrary to

Action’s assertions, it is irrelevant whether a desire for

fairness was the actual motivation of the Village’s removal

decision. Consequently, Action has not identified a 2

 In class-of-one claims, a plaintiff is required to 2

identify comparators that are “prima facie identical” in

order to “provide an inference that the plaintiff was

intentionally singled out for reasons that so lack any

reasonable nexus with a legitimate governmental policy that

an improper purpose . . . is all but certain.” Neilson v.

D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005), overruled on

other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir.

2008). Since Action failed to identify sufficiently similar

comparators, we cannot say that it is “all but certain” that

the Village’s decision to remove Action was based on an

improper purpose.

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sufficiently similar comparator to base its class-of-one

claim.

3. Action appeals the district court’s refusal (in a

separate order) to grant an injunction ordering the Village

to reinstate it to the Tow List, even though the district

court had held preempted a Tow List regulation that Action

had challenged. The district court justified its refusal to

grant an injunction solely on the ground that doing so would

constitute retroactive relief, in conflict with Ex parte

Young, 209 U.S. 123 (1908), which allows only prospective

injunctive relief for constitutional violations. See

Edelman v. Jordan, 415 U.S. 651, 664 (1974).

The relief of reinstating Action to the Tow List would

be prospective, not retroactive. See Dwyer v. Regan, 777

F.2d 825, 836 (2d Cir. 1986) (holding reinstatement to

government employment is prospective relief). Therefore, we

vacate the district court’s order refusing to reinstate

Action to the Tow List, and remand the case to the district

court to reconsider Action’s request for an injunction. We

express no opinion on the merits of Action’s request. 

For the foregoing reasons, we hereby AFFIRM IN PART,

AND VACATE AND REMAND IN PART, the judgment of the district

court.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK

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