1 13

‐ 3733(L)

Pedro Rivera, et al., Edward Ebanks, et al. v. City of New York, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER

J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S

L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER

THE F EDERAL A PPENDIX 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 29 th day of October, two thousand

fourteen.

PRESENT: AMALYA L. KEARSE,

CHESTER J. STRAUB,

RICHARD C. WESLEY,

Circuit Judges.

________________ _______________ _____________

PEDRO RIVERA, ALBERTO RIVERA BEY, NUHA SAABIRAH EL, AJAMA

JABARI BEY, NTCHWAIDUMELA BEY, WAYNE BOLLIN BEY, ZAIMAH EL,

MICHAEL FLYNN, ALBERT KELLY, AGNES BEY, SR. BEY,

Plaintiffs

‐ Appellees,

EDWARD EBANKS, HERBERT L. HINNANT, MICHAEL NICHOLS, HASSAN

ABDALLAH, OBA HASSAN WAT BEY, AKA ROBERT WATSON, PEDRO

RIVERA BEY, SR.,

Plaintiffs

‐ Appellees

‐ Cross

‐ Appellants,

‐ v. ‐ Nos. 13

‐ 3733(L), 13

‐ 3756,2 13

‐ 3760, 13

‐ 3793

CITY OF NEW YORK, RUDOLPH GIULIANI, individually and as Mayor of the

City of New York, MICHAEL CARUSO, individually and as Inspector General of

the City of New York Department of Investigation, BERNARD B. KERIK,

individually and as Commissioner of the Department of Corrections of the City

of New York, WILLIAM FRASER, individually and as Commissioner of the

Department of Corrections of the City of New York, EDWARD KURINSKY,

individually and as Commissioner of Investigation for the City of New York,

ROSEMARIE MALDONADO, individually and as Administrative Law Judge of

the Office of Administrative Trials and Hearings, NICHOLAS KAISER,

individually and as Attorney for the Department of Corrections Office of Trials

and Litigation, NEW YORK CITY DEPARTMENT OF CORRECTIONS,

Defendants

‐ Appellants

‐ Cross

‐ Appellees

. *

________________ _______________ _____________



### FOR PEDRO RIVERA BEY, SR.

(Plaintiff

‐ Appellee

‐ Cross

‐ Appellant): CHARLES D. COLE, JR., Newman

Myers Kreines Gross Harris, P.C.,

New York, NY.

FOR EDWARD EBANKS, HERBERT

L. HINNANT, AND MICHAEL

NICHOLS (Plaintiffs

‐ Appellees

‐ Cross

‐ Appellants):

FOR ROBERT WATSON AND

HASSAN ABDALLAH (Plaintiffs

‐ Appellees

‐ Cross

‐ Appellants):

FOR DEFENDANTS

‐ APPELLANTS

‐

CROSS

‐ APPELLEES: DAVID SCHLACHTER, Law Offices

of David Schlachter, Uniondale, NY.

IRENE DONNA THOMAS, Thomas

& Associates, Brooklyn, NY.

MAXWELL DOUGLAS LEIGHTON,

Assistant Corporation Counsel

(Jeffrey D. Friedlander, Acting

Corporation Counsel, Larry A.

* The Clerk of the Court is directed to amend the caption as above.3 

### Sonnenshein, Assistant Corporation

Counsel, Mordecai Newman,

Assistant Corporation Counsel, on the

brief ), for Corporation Counsel of the

City of New York, New York, NY.

Appeal from the United States District Court for the Southern District of

New York (Nathan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment is AFFIRMED in part and

REVERSED in part.

The parties appeal from an amended judgment entered following trial in

the United States District Court for the Southern District of New York (Nathan,

J

. ). Plaintiffs

‐ appellees

‐ cross

‐ appellants (“Plaintiffs”) are five former correction

officers and one former correction captain, each affiliated with the Moorish

‐

American religion and formerly employed by the Department of Corrections

(“DOC”). Plaintiffs brought claims pursuant to Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”), alleging religious discrimination,

and pursuant to 42 U.S.C. § 1983, alleging violations of the Equal Protection

Clause of the Fourteenth Amendment, as well as claims under New York State

Human Rights Law and the New York City Human Rights Law. Following trial,4 a jury rendered a verdict in favor of Plaintiffs on most of their claims against the

City of New York, William Fraser, and Bernard Kerik (“Defendants”).

The procedural history underlying this consolidated case is extraordinarily

long and complex. In 1996, New York City investigated a claim that City

employees had been claiming exempt status and excessive allowances on their

tax forms. More than 1,000 employees of the DOC had been filing false tax

documents; Plaintiffs were among the twenty

‐ two Moorish

‐ American DOC

officers who were suspended as a result. They completed their suspensions in

January 1998 and returned to work on modified duty. Following an

Administrative Hearing, an Administrative Law Judge (“ALJ”) determined that

Plaintiffs had filed false tax documents with the intent to defraud and

recommended termination. In December 1998, Plaintiffs were terminated from

their jobs.

Both before, and following, their termination, Plaintiffs and other DOC

employees filed numerous cases in federal court. In February 2007, several

individual cases were consolidated into the current action. On March 25, 2010,

Defendants moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure

for judgment on the pleadings as to six of the then

‐ plaintiffs in this case on the5 grounds of res judicata. The district court held that two of the then

‐ plaintiffs’

claims were barred by res judicata; those plaintiffs appealed and this Court

affirmed in Bey v. City of New York

, 454 F. App’x. 1 (2d Cir. 2011) (summary

order). The other four, plaintiffs Herbert L. Hinnant, Hassan Abdallah, Edward

Ebanks, and Michael Nichols (the “Sierra Plaintiffs”), had been plaintiffs in the

97

‐ cv

‐ 8244 (“ Sierra I ”) and 97

‐ cv

‐ 9329 (“ Sierra II ”) actions (collectively, the “ Sierra

actions”), but the district court held that, as to the Sierra Plaintiffs, Defendants

did not demonstrate one of the three requirements of claim preclusion: that the

claims sought to be barred were, or could have been, raised in a prior action. Bey

v. City of New York

, No. 99 Civ. 3873, 2010 WL 3910231, at *13

‐ *14 (S.D.N.Y. Sept.

21, 2010).

The claims of the Sierra Plaintiffs went to trial on December 4, 2012, along

with the claims of three other plaintiffs, Pedro Rivera Bey, Sr., Alberto Rivera

Bey, and Robert Watson. Following trial, the jury rendered a verdict finding in

favor of Plaintiffs and awarding each Plaintiff back pay, in amounts ranging

from $300,000 to $488,000, and punitive damages, in the amount of $100,000 per

Plaintiff. The jury did not award front pay or compensatory damages. Both

sides then filed motions pursuant to Rule 59 of the Federal Rules of Civil6 Procedure with regard to the jury’s damages awards. The district court

concluded that (1) no party was entitled to a new trial on damages and (2) the

evidence was insufficient to allow the jury to award punitive damages. The

court also declined to provide further equitable or injunctive relief. Both sides

appealed.

A. Res Judicata

Defendants appeal on the sole ground that the claims of the Sierra

Plaintiffs are barred by res judicata. We review de novo a district court’s

decision to deny a motion for judgment on the pleadings pursuant to Federal

Rule of Civil Procedure 12(c). See Patel v. Searles

, 305 F.3d 130, 134 (2d Cir. 2002).

“In deciding a Rule 12(c) motion, we employ the same standard applicable to

dismissals pursuant to Fed. R. Civ. P. 12(b)(6).” Hayden v. Paterson

, 594 F.3d 150,

160 (2d Cir. 2010) (internal quotation marks omitted). Thus, we “accept all

factual allegations in the complaint as true and draw all reasonable inferences in

[plaintiffs’] favor.” Johnson v. Rowley

, 569 F.3d 40, 43 (2d Cir. 2009) (per curiam).

In broad terms, “res judicata means that a matter once judicially decided is

finally decided.” Murphy v. Gallagher

, 761 F.2d 878, 879 (2d Cir. 1985). Res

judicata embraces two concepts: issue preclusion (also known as collateral7 estoppel) and claim preclusion. Defendants argue that claim preclusion applies

to bar the claims of the Sierra Plaintiffs. There are three requirements for the

application of claim preclusion: “(1) the previous action involved an adjudication

on the merits; (2) the previous action involved the plaintiffs or those in privity

with them; [and] (3) the claims asserted in the subsequent action were, or could

have been, raised in the prior action.” Monahan v. New York City Dep’t of Corr.

,

214 F.3d 275, 285 (2d Cir. 2000). Under claim preclusion, “[e]ven claims based

upon different legal theories are barred provided they arise from the same

transaction or occurrence.” L

‐ Tec Elecs. Corp. v. Cougar Elec. Org., Inc.

, 198 F.3d

85, 88 (2d Cir. 1999) (per curiam).

The only requirement at issue in this case is the third. Defendants argue

that, although Plaintiffs were terminated after bringing their claims in the Sierra

actions, the termination was simply another fact in the same transaction or

occurrence as the one dismissed in the Sierra actions. But it is well settled in this

Circuit that once a complaint is filed, a “plaintiff has no continuing obligation to

file amendments to the complaint to stay abreast of subsequent events; plaintiff

may simply bring a later suit on those later

‐ arising claims.” Curtis v. Citibank

,

226 F.3d 133, 139 (2d Cir. 2000). “Plaintiff’s failure to supplement the pleadings8 of his already commenced lawsuit will not result in a res judicata bar when he

alleges defendant’s later conduct as a cause of action in a second suit.” Maharaj

v. Bankamerica Corp.

, 128 F.3d 94, 97 (2d Cir. 1997). The Sierra actions were

brought in November and December 1997 (with amended complaints filed in

April 1998), before the Sierra Plaintiffs were fired in December 1998. Accordingly,

the Sierra Plaintiffs’ claims based on their termination asserted in this action

were not, nor could they have been, raised in the Sierra actions. And though they

arise from a similar set of underlying facts, the Sierra Plaintiffs’ terminations

provide the basis for an independent cause of action. Thus, the Sierra Plaintiffs’

claims based on acts occurring after the filing of their complaints in the Sierra

actions are not barred by res judicata.

B. Plaintiffs’ Arguments on Appeal

Plaintiffs appeal from the denial of their Rule 59 motion for a new trial on

damages. Specifically, Plaintiffs challenge (1) the district court’s vacatur of the

punitive damages awarded by the jury, (2) the sufficiency of the back pay award,

and (3) the district court’s denial of further equitable or injunctive relief.9 1. Punitive Damages

Plaintiffs argue that Defendants forfeited the argument to vacate the jury’s

punitive damage award by failing to raise it in their Rule 50(a) motion and,

therefore, that the district court’s subsequent vacatur of those damages was an

abuse of discretion. We agree.

It is well established that a party is not entitled to challenge the sufficiency

of the evidence to support a jury verdict on a given issue unless it has timely

moved in the district court for judgment as a matter of law. Kirsch v. Fleet Street,

Ltd.

, 148 F.3d 149, 164 (2d Cir. 1998). Such a motion must be made “before the

case is submitted to the jury,” Fed. R. Civ. P. 50(a)(2), and “must at least identify

the specific element that the defendant contends is insufficiently supported,”

Galdieri

‐ Ambrosini v. Nat’l Realty & Dev. Corp.

, 136 F.3d 276, 286 (2d Cir. 1998).

Any post

‐ trial motion for judgment as a matter of law may renew the party’s

objection “only on grounds that were specifically articulated before submission

of the case to the jury.” Kirsch

, 148 F.3d at 164 (citing Galdieri

‐ Ambrosini

, 136 F.3d

at 286). “The ultimate question is whether the motion, either of itself or in the

context of the ensuing colloquy, was sufficiently specific to alert the opposing

party to the supposed deficiencies in her proof. If specificity was lacking,10 [judgment as a matter of law] may neither be granted by the district court nor

upheld on appeal unless that result is ‘required to prevent manifest injustice.’”

Galdieri

‐ Ambrosini

, 136 F.3d at 287 (quoting Cruz v. Local Union No. 3 of Int’l Bhd.

Of Elec. Workers

, 34 F.3d 1148, 1155 (2d Cir. 1994)).

In this case, it is undisputed that Defendants did not specifically challenge

the sufficiency of the evidence to support a claim for punitive damages in their

Rule 50(a) motion. Though they did raise the issue in their Rule 50(b) motion, by

that time the issue had not been properly preserved.

Defendants argue that even if they had forfeited the argument, the vacatur

of punitive damages was necessary to prevent manifest injustice. We cannot find

manifest injustice here, where, had Defendants properly raised the issue at trial,

“it may be that [Plaintiffs] would have been able to present additional evidence,”

Kirsch

, 148 F.3d at 165, “to show that Defendants’ conduct was ‘motivated by evil

motive or intent,’ or ‘involve[d] reckless or callous indifference to the federal

protected rights of others,’ Kolstad v. Am. Dental Ass’n

, 527 U.S. 526, 536 (1999)

(quoting Smith v. Wade

, 461 U.S. 30, 56 (1983)). Thus, the district court was not

permitted to reach the question of the sufficiency of the evidence, and the

subsequent vacatur of the punitive damages award was an abuse of discretion.11 Accordingly, we reverse the Amended Judgment of the district court insofar as it

vacated the awards of punitive damages.

2. Plaintiffs’ Motion for a New Trial on Damages

Following trial, all Plaintiffs (except Robert Watson) moved, pursuant to

Federal Rule of Civil Procedure 59, for a new trial on damages. The district court

denied Plaintiffs’ motion, finding that “Plaintiffs’ award is sufficient, under the

circumstances of this case, to make them whole for the violation that the jury

determined they had suffered.” Oba Hassan Wat Bey, et al. v. City of New York, et

al.

, No. 99

‐ cv

‐ 3873, slip op. at 58 (S.D.N.Y. Sept. 4, 2013).

We review the denial of a Rule 59 motion for a new trial for abuse of

discretion. Baker v. Dorfman

, 239 F.3d 415, 422 (2d Cir. 2000). “A district court

abuses its discretion when (1) its decision rests on an error of law (such as the

application of the wrong legal principle) or a clearly erroneous factual finding, or

(2) its decision

– though not necessarily the product of a legal error or a clearly

erroneous factual finding

– cannot be located within the range of permissible

decisions.” Manley v. AmBase Corp.

, 337 F.3d 237, 245 (2d Cir. 2003) (internal

quotation marks omitted). We cannot find that the district court abused its

discretion here. The court applied the appropriate standard, which required that12 the jury’s verdict stand unless it was palpably and grossly inadequate, Caskey v.

Vill. of Wayland

, 375 F.2d 1004, 1007 (2d Cir. 1967), and finding that it was not,

properly upheld the verdict. Despite Plaintiffs’ argument that the back pay

damages awarded by the jury are significantly less than they expected, the

district court reasonably determined that the jury could have found that the

compensation owed to Plaintiffs was markedly lower, and the compensation

Plaintiffs received in other employment during the relevant period markedly

higher, than the figures Plaintiffs provided at trial. Accordingly, we cannot find

that the district court abused its discretion and we affirm the denial of a new trial

as to damages.

Plaintiffs also challenge the district court’s denial of further equitable

relief, in the form of reinstatement, front pay, and pension and other benefits.

We review the district court’s order denying equitable relief, such as pension

credits or other benefits of retirement, for abuse of discretion. Sharkey v. Lasmo

(AUL Ltd.)

, 214 F.3d 371, 374 (2d Cir. 2000). The district court carefully

considered what evidence the jury may have credited or discredited, and the

court concluded that the damages awarded by the jury were sufficient to make13 the Plaintiffs whole, and that no further equitable relief was warranted. We see

no abuse of discretion in the district court’s decision.

Finally, Plaintiffs Watson and Abdallah challenge the district court’s denial

of their request for injunctive relief. We review a district court’s denial of a

motion for injunctive relief for abuse of discretion. Forschner Group, Inc. v. Arrow

Trading Co.

, 124 F.3d 402, 406 (2d Cir. 1997). The district court concluded that

Plaintiffs failed to identify a cognizable danger of recurrent violations and,

consequently, denied Plaintiffs’ request for injunctive relief. We agree.

We have considered the parties’ remaining arguments and find them to be

without merit. For the reasons stated above, the judgment of the district court is

AFFIRMED in part and REVERSED in part. The matter is remanded for entry

of a further amended judgment to reinstate the jury’s award of punitive damages

to each of the Plaintiffs.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk