2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-8-2010

Steven Monaco v. City of Camden

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1190

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Recommended Citation

"Steven Monaco v. City of Camden" (2010). 2010 Decisions. Paper 1918.

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The Honorable Cynthia M. Rufe, District Judge for the United States District *

Court for the Eastern District of Pennsylvania, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-1190

____________

STEVEN J. MONACO, 

 Appellant

v.

CITY OF CAMDEN; CITY OF CAMDEN POLICE DEPARTMENT; 

OFFICER LAWRENCE NORMAN; OFFICER MIGUEL RODRIGUEZ; SERGEANT

MICHAEL HALL; OFFICER RICHARD VERTICELLI; OFFICER LUIS SANCHEZ;

OFFICER JUAN RODRIGUEZ, OFFICER SHAY SAMPSON.

____________

On Appeal from United States District Court

for the District of New Jersey

(D.C. No. 04-cv-02406)

District Judge: Honorable Jerome B. Simandle

____________

Submitted Under Third Circuit LAR 34.1(a)

February 4, 2010

Before: McKEE, HARDIMAN, Circuit Judges, and RUFE , District Judge *

(Filed: February 8, 2010)

__________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.
2

Steven Monaco appeals a judgment of the District Court denying his motion for a

new trial and his second motion to amend complaint. Largely for the reasons explained

by the District Court and Magistrate Judge in their cogent opinions, we will affirm.

I.

Because we write for the parties, who are familiar with the facts and procedural

history, we recount only those aspects of the case that are essential to our decision.

On May 31, 2002, Monaco was tailgating in the parking lot near the Tweeter

Center in Camden, New Jersey prior to a concert when a fight broke out. Monaco alleged

that during law enforcement’s response to that fight, he was assaulted by Camden police

officers who mistook him for a combatant. According to Monaco, he was taken to the

police station where he was questioned by another officer, Shay Sampson, who coerced

him into confessing to a public drinking violation.

On May 25, 2004, one week before the expiration of the two-year statute of

limitations, Monaco filed suit in the District Court, alleging constitutional and state law

claims against the City of Camden, the Camden Police Department, and unnamed John

Does. Monaco added Officer Sampson as a Defendant in his first amended complaint.

The case went to trial in June 2008 with the jury finding in Monaco’s favor. The

victory was Pyrrhic, however, because although the jury found “that one or more Camden

Police Officers deprived [Monaco] of the right to be free from excessive force” and “the

right to be free from unlawful arrest,” it also found that Monaco did not prove that the
3

City of Camden had an official custom of deliberate indifference that caused the

constitutional violations. Furthermore, the jury found that Monaco did not “prove that

Defendant Sampson is liable for malicious prosecution.” Monaco filed a motion for new

trial, which the District Court denied.

In this appeal, Monaco challenges both the denial of his motion for new trial as

well as the denial of his second motion to amend complaint. We have jurisdiction over

the appeal pursuant to 28 U.S.C. § 1291.

II.

A.

Monaco contends that the jury’s finding that the police lacked probable cause to

arrest him is inconsistent as a matter of law with its finding that Officer Sampson is not

liable for malicious prosecution because lack of probable cause is an element of a

malicious prosecution claim.

We review the District Court’s denial of a motion for new trial for abuse of

discretion. Thabault v. Chait, 541 F.3d 512, 532 (3d Cir. 2008) (citation omitted). A

district court may grant a motion for new trial “after a jury trial, for any reason for which

a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ.

P. 59(a)(1)(A). Inconsistent general verdicts may constitute grounds for ordering a new

trial. Mosley v. Briggs, 102 F.3d 85, 91 (3d Cir. 1996). However, a court may order a

new trial based on inconsistent verdicts only if “no rational jury could have brought back
4

the verdicts that were returned.” Pearson v. Welborn, 471 F.3d 732 (7th Cir. 2006)

(internal quotations and citations omitted). Accordingly, when one party challenges a

jury’s verdicts as inconsistent, the court has an obligation first to “attempt to reconcile the

jury’s findings” to determine “whether the jury could have, consistent with its

instructions, rendered the challenged verdicts.” Davignon v. Hodgson, 524 F.3d 91, 109

(1st Cir. 2008) (citations omitted); see Gallick v. Baltimore & O. R. Co., 372 U.S. 108,

119 (1963) (“[I]t is the duty of the courts to attempt to harmonize the answers, if it is

possible under a fair reading of them: ‘Where there is a view of the case that makes the

jury’s answers to special interrogatories consistent, they must be resolved that way.’”)

(quoting Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364

(1962)). In undertaking to read the verdicts consistently, the court must “view the facts in

the light most favorable to the verdict.” Davignon, 524 F.3d at 109.

Applying these standards to this appeal, we have little difficulty finding that the

jury’s verdicts regarding unlawful arrest and malicious prosecution were not inconsistent. 

Monaco is correct that lack of probable cause is an element of both an unlawful arrest

claim and a malicious prosecution claim. See, e.g., Paff v. Kaltenbach, 204 F.3d 425, 435

(3d Cir. 2000) (unlawful arrest); Brunson v. Affinity Federal Credit Union, 972 A.2d

1112, 1119 (N.J. 2009) (malicious prosecution). Nevertheless, the jury’s finding that the

officers who took custody of Monaco at the Tweeter Center lacked probable cause to

arrest does not preclude a finding that Officer Sampson was not liable for malicious
 The inconsistency of the testimony regarding which alcoholic beverage Monaco 1

was drinking—Monaco and Sampson testified he confessed to drinking a Coors Light

while Doran-Pangborne said it was a Mike’s Hard Lemonade—is immaterial because

either beverage could subject him to the charge of public drinking.

 Monaco argues that the evidence of his confession should have been excluded as 2

“fruit of the poisonous tree,” because it was obtained subsequent to his illegal arrest. This

argument is without merit as it confuses the principles of civil and criminal proceedings. 

5

prosecution. See Pearson, 471 F.3d at 739 (verdicts finding two of five defendants liable

for retaliation were not inconsistent where jury could have believed that two defendants’

actions constituted retaliation while simultaneously finding that other defendants were not

involved in retaliatory act). As explained by the District Court, when the facts are viewed

in the light most favorable to the verdicts, there are at least two explanations that would

render these jury verdicts consistent.

First, the jury could have found that even though the officers who took Monaco

into custody at the Tweeter Center lacked probable cause to arrest, Officer Sampson did

have probable cause to believe Monaco had been drinking in public at the time Sampson

issued the citation. The jury could have credited Sampson’s testimony that he had not

been present during Monaco’s arrest and that Sampson first encountered Monaco at the

police station. Monaco, Sampson, and Monaco’s then-girlfriend, Nicole DoranPangborne, all testified that Monaco told Sampson that he had consumed an alcoholic

beverage before the concert. Doran-Pangborne also testified that Monaco had been

drinking alcohol at the parking lot. Monaco contends that a finding of probable cause 1

could not be based upon his confession because it was coerced. But the evidence 2
The fruit of the poisonous tree doctrine cannot be invoked to support a civil claim for

damages because “the doctrine is an evidentiary rule that operates in the context of

criminal procedure and has generally been held to apply only in criminal trials.” Jenkins

v. City of New York, 478 F.3d 76, 91 n.16 (2d Cir. 2007) (internal quotation and citations

omitted); United States v. Calandra, 414 U.S. 338 348 (1974) (instructing that “standing

to invoke the exclusionary rule has been confined to situations where the Government

seeks to use such evidence to incriminate the victim of the unlawful search”).

6

regarding coercion at trial was disputed: Monaco’s allegation versus Sampson’s denial. 

The jury was entitled to disbelieve Monaco’s allegations of coercion, and credit

Sampson’s testimony that Monaco confessed freely in response to Sampson’s questions.

Based on Monaco’s admission to Sampson that he had consumed alcohol while

tailgating before the concert, the jury reasonably could have found that Sampson had

probable cause to believe Monaco had been drinking in public when he issued the

citation. This is certainly a “minimally plausible view of the case” which renders the

jury’s false arrest and malicious prosecution verdicts consistent. See McAdam v. Dean

Witter Reynolds, Inc., 896 F.2d 750, 764 (3d Cir. 1990).

A second explanation plausibly reconciles the jury’s verdicts. In addition to a lack

of probable cause, liability for malicious prosecution requires a showing of malice. See

Brunson, 972 A.2d at 1119-20. The jury here could have found that Monaco failed to

prove that Officer Sampson acted maliciously, i.e., “without just cause or excuse.” Id. at

120. The jury was free to disbelieve Monaco’s testimony that Sampson threatened him

into making a false confession, credit Sampson’s testimony that he did not threaten

Monaco, and conclude that Monaco failed to establish the malice element of his claim. 
 Monaco argues that the City should be estopped from asserting the statute of 3

limitations because it did not oppose his first motion to amend, which also was filed after

the statute of limitations expired. We reject this argument as the City’s assertion of the

statute of limitations in opposition to the second motion to amend is not inconsistent with

7

Viewing the testimony before the jury in the light most favorable to the verdicts, we

cannot conclude that “no rational jury could have brought back the verdicts that were

returned.” Pearson, 471 F.3d at 739.

B.

The remainder of the issues Monaco raises concern the denial of his second motion

to amend complaint. Because we find that Monaco’s second motion to amend was

untimely and therefore futile, we do not specifically address his allegations of error in the

District Court’s denials of his appeal from the Magistrate Judge’s order and his motion to

reconsider that denial.

Leave to amend pleadings “shall be freely given when justice so requires.” Fed. R.

Civ. P. 15(a). As articulated by the Supreme Court:

In the absence of any apparent or declared reason-such as undue delay, bad

faith or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, futility of

amendment, etc.-the leave sought should, as the rules require, be “freely

given.”

Forman v. Davis, 371 U.S. 178, 182 (1962). Because Monaco sought to amend his

complaint for a second time approximately two years after the statute of limitations

expired, his motion is futile unless it relates back to the date of the original complaint.3
its failure to object to the first motion to amend, and because it would not have been

reasonable for Monaco to delay filing his second motion to amend in reliance on the

failure to object. See generally Knorr v. Smeal, 836 A.2d 794, 799 (N.J. 2003) (“The

doctrine [of equitable estoppel] is designed to prevent injustice by not permitting a party

to repudiate a course of action on which another party has relied to his detriment.”). 

Furthermore, we note that after Monaco filed his first amended complaint in March 2005,

all of the newly added defendants—save Officer Sampson—successfully moved for

summary judgment on the ground that the claims were barred by the statute of limitations. 

Monaco did not appeal that ruling.

8

See Fed. R. Civ. P. 15(c)(1). Whether Monaco’s amendment relates back to the original

pleading is determined by the law that provides the applicable statute of limitations, see

id., in this case, New Jersey. Two New Jersey rules are relevant to Monaco’s motion,

N.J. Court Rules 4:26-4 and 4:9-3, but Monaco failed to satisfy the requirements of either

rule.

Rule 4:26-4, New Jersey’s fictitious party rule, permits a plaintiff to sue a

defendant under a fictitious name when the defendant’s true name is unknown. The

plaintiff may use the fictitious party rule to add defendants after the expiration of the

statute of limitations “only if the plaintiff exercised due diligence to ascertain defendant’s

true name before and after filing the complaint.” DeRienzo v. Harvard. Indus., Inc., 357

F.3d 348, 353 (3d Cir. 2004) (citation omitted) (emphasis added). “In the context of

N.J.R. 4:26-4, plaintiffs must ‘investigate all potentially responsible parties in a timely

manner’ to cross the threshold for due diligence.” Id. at 354 (quoting Matynska v. Fried,

811 A.2d 456, 457 (N.J. 2002)).
 Monaco’s argument that he could not return to the police station to review the 4

photo book prior to the running of the two-year statute of limitations because of the

intimidation he suffered on May 31, 2002 is not persuasive. Monaco cites no authority

for this proposition, and even if he were fearful of the Camden police, there is no reason

Monaco and his lawyer could not have arranged to review the photo book at another

location.

9

Monaco has not presented adequate evidence of efforts taken before the expiration

of the statute of limitations to satisfy the diligence requirement. Monaco alleges that his

efforts were thwarted because, in response to the discovery requests he made in defending

the public drinking charges in municipal court, the City stated that it was “unable to

locate any report” relevant to the charge. Monaco fails to show why the City’s inability to

locate any reports prevented him or his eyewitnesses from reviewing the police photo

book to identify potential defendants during the two years before he filed suit. The City’s

inability to locate a report at that time, while troubling, does not excuse Monaco from his

diligence obligations. Accordingly, he cannot avail himself of Rule 4:26-4 to avoid the

statute of limitations bar to his second motion to amend.4

Rule 4:9-3, New Jersey’s general relation back rule, provides that an amendment

changing the party against whom a claim is asserted relates back to the date of the

original complaint if: (1) it arose out of the same transaction or occurrence set forth in

the original pleading; (2) the proposed defendant received notice of the institution of the

action within the limitations period such that the party will not be prejudiced in

maintaining a defense; and (3) the proposed defendant knew or should have known that,
10

but for the misidentification of the proper party, the action would have been brought

against him or her. Arroyo v. Pleasant Garden Apartments, 14 F. Supp. 2d 696, 701

(D.N.J. 1998) (citing Viviano v. CBS, Inc., 503 A.2d 296, 304 (N.J. 1986)). In this case,

Monaco has not met his burden with respect to the second or third prongs of the test.

Monaco argues that the proposed defendants had notice of the lawsuit and

knowledge that they were potential defendants because: (1) in an interview with the

media shortly after the incident, a member of the Camden Police Department stated that

the incident would be investigated internally, (2) the proposed defendants are Camden

Police officers and the City of Camden was named a defendant in the original complaint,

and (3) in their answer to the amended complaint, the City acknowledged that there was

another lawsuit pending regarding the May 31, 2002 incident. We disagree for several

reasons.

First, the media statement regarding an internal investigation could not have

notified the proposed defendants of Monaco’s lawsuit since it was made almost two years

prior to the initiation of the lawsuit. Additionally, the investigation itself was not

conducted by the Camden City Police Department until February of 2005, over seven

months after the expiration of the statute of limitations; therefore, the investigation could

not have put the proposed defendants on notice of the lawsuit before the expiration of the

limitations period.
11

Second, while in some circumstances, the “identity of interest” method permits

imputing notice of an action to an unnamed party, see Singletary v. Pennsylvania Dept. of

Corrections, 266 F.3d 186, 198 (3d Cir. 2001), Monaco has not shown that the proposed

defendants and the City of Camden share such an identity of interest. See Otchy v. City of

Elizabeth Bd. of Educ., 737 A.2d 1151, 1157 (N.J. Super. A.D. 1999). Also, Monaco

filed his original lawsuit only six days before the statute of limitations expired and did not

serve the City until June 14, 2004; therefore, we cannot conclude that the City would have

had time to identify and notify the proposed defendants of the action before the statute of

limitations ran. See Love v. Rancocas Hosp., 270 F. Supp. 2d 576, 581 (D.N.J. 2003)

(holding that where employer and some employees were served just days before

limitations period expired, they did not have sufficient time to determine that named

employees were identified incorrectly and notify correct employee of the action).

Finally, the mere existence of a related lawsuit was insufficient to put the proposed

defendants on notice of Monaco’s lawsuit, or that they might be defendants in the case. 

Even if additional lawsuits over the May 31, 2002 incident alerted the proposed

defendants to the existence of potential claims, it would not have alerted them to the

institution of Monaco’s lawsuit. See Otchy, 737 A.2d at 1156 (“The rule expressly

requires ‘notice of the institution of the action’ not just of a claim. The purpose of that

notice provision in the rule is to assure that the added party will not be prejudiced by
12

having to defend a stale claim.”). Therefore, Monaco has not satisfied the requirements

for relation-back under Rule 4:9-3.

III.

For the foregoing reasons, we conclude that the verdicts were not inconsistent and

that Monaco’s second motion to amend complaint was untimely and properly denied as

futile. Accordingly, we will affirm the judgment of the District Court.