Leniart v. Bundy ( 2019 )

17-1243
Leniart v. Bundy
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 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 4th day of February, two thousand and nineteen.
Present:
PETER W. HALL,
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
Circuit Judges,
George M. Leniart,
Plaintiff-Appellant,
v. 17-1243-cv
Eric Ellison, Parole Supervisor, Larry Bransford,
Parole Officer,
Defendants-Appellees.*
For Plaintiff-Appellant: OMAR ALI KHAN (Jack Zarin-Rosenfeld, on the brief)
Wilmer Cutler Pickering Hale and Dorr LLP, New
York, NY
For Defendants-Appellants: STEVEN R. STROM, Assistant Attorney General, for
William Tong, Attorney General, Hartford, CT.
* The Clerk is directed to amend the caption as above.
Appeal from a judgment entered February 19, 2015, and rulings issued on
March 16, 2017, and March 30, 2017, in the District of Connecticut (Fitzsimmons, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s judgment and rulings are
AFFIRMED.
George Leniart appeals from the final judgment of the district court entered
after a jury verdict in favor of all defendants. Specifically, Leniart appeals (1) the
district court’s denial of his renewed motion for judgment as a matter of law against
Ellison under Federal Rule of Civil Procedure 50(b), and (2) the district court’s denial
of his motion for a new trial against Ellison and Bransford under Federal Rule of
Civil Procedure 60(b)(2). For the first time on appeal, Leniart requests a new trial
against Ellison and Bransford under Federal Rule of Civil Procedure 60(b)(3). We
assume the parties’ familiarity with the underlying facts, the procedural history of
the case, and the issues presented on appeal, which we reference only as necessary to
explain our decision to affirm.
I. Rule 50(b) Renewed Motion for Judgment as a Matter of Law
We review de novo the district court’s denial of a Rule 50(b) renewed motion
for judgment as a matter of law. Warren v. Pataki, 823 F.3d 125, 137 (2d Cir. 2016).
A Rule 50(b) motion may be granted “only if the court, viewing the evidence in the
light most favorable to the non-movant, concludes that a reasonable juror would have
been compelled to accept the view of the moving party.” Cash v. Cty. of Erie, 654 F.3d
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324, 333 (2d Cir. 2011) (internal quotation marks omitted). Such a motion must be
made before the case is submitted to the jury. Fed.R.Civ.P. 50(a)(2). A party may
renew the motion after an unfavorable verdict on the grounds specifically raised in
the prior motion for judgment as a matter of law. Tolbert v. Queens College, 242 F.3d
58, 70 (2d Cir. 2001).
Viewing the evidence in the light most favorable to defendants, a reasonable
juror would not be compelled to find in Leniart’s favor. Manager Ellison’s authority
to seize and examine the microcassette recorder and tape flowed from reasonable
suspicion of specific parole violations, including not wearing his GPS monitoring
device, drinking alcohol, and engaging in sexual activities with minors in Leniart’s
home. The recorder and tape were found in the bag containing the laptop that the
parole officers were searching for, which itself was found in Leniart’s bedroom—the
site of an alleged assault. Like the laptop, the recorder and tape were devices capable
of creating and storing a contemporaneous record of Leniart’s alleged parole-violative
contacts with minors, consumption of alcohol, and sexual assault. Accordingly, they
fall within the reasonable scope of the parole investigation of Ellison.
II. Rule 60(b) Motions for a New Trial
We review for abuse of discretion the denial of a motion for relief from a final
judgment under Rules 59 and 60(b). Devlin v. Transpo. Commc’ns Int’l Union, 175
F.3d 121, 131–32 (2d Cir. 1999). A district court exceeds the bounds of its discretion
when it “bases its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or render[s] a decision that cannot be located within the
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range of permissible decisions.” Gomez v. City of New York, 805 F.3d 419, 423 (2d Cir.
2015).
The district court did not exceed the bounds of its discretion in denying
Leniart’s Rule 60(b)(2) motion. A court should grant a new trial under Rule 60(b)(2)
only when “newly discovered evidence . . . [is] of a sort that could, if believed, change
the verdict.” United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995). The party
seeking a new trial must show: “(1) the newly discovered evidence was of facts that
existed at the time of trial or other dispositive proceedings, (2) the movant was
justifiably ignorant of them despite due diligence, (3) the evidence is admissible and
of such importance that it probably would have changed the outcome, and (4) the
evidence is not merely cumulative or impeaching.” United States v. Int’l Bhd. of
Teamsters, 247 F.3d 370, 392 (2d Cir. 2001) (quoting United States v. Int’l Bhd. Of
Teamsters, 179 F.R.D. 444, 447 (S.D.N.Y. 1998)).
Leniart failed to establish that the newly discovered evidence—the chain-of-
custody sheet, the broken envelope seal, the damaged recorder, and the tape—
probably would have altered the jury’s verdict. Because the recorder and tape are
directly relevant only to Leniart’s claim against Ellison, the revelation of the recorder,
the tape, and Bransford’s misrepresentations would likely not change the jury’s
verdict as to Ellison, let alone alter the district court’s grant of summary judgment in
favor of Bransford. Leniart has not demonstrated that Ellison knew the recorder and
tape existed prior to the search or what Leniart had told Bransford about the contents
of that tape. Leniart potentially could question Ellison about such information, but
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without more, at best it would impeach only Ellison. Moreover, Leniart’s counsel had
the opportunity to pursue such a line of questioning when cross-examining Ellison
during the trial but declined to do so. Finally, the fact that the tape did not contain
what Leniart claims indicates that the actual recorder and tape would not likely
change the outcome of the trial. Unlike with regard to Ellison, the new evidence could
be used effectively to impeach Bransford. Any argument as to how the new evidence
affects Bransford’s dismissal from this case on summary judgment, however, was
insufficiently made in Appellant’s brief to warrant a different result: Appellant points
to no direct evidence that Bransford caused Ellison to seize the tape and recorder,
and the new evidence does not, on its face, sufficiently support such an inference.
Alternatively, Leniart asks us to grant a new trial under Rule 60(b)(3) because
of Bransford’s misconduct regarding the recorder and tape. Leniart did not raise this
argument in the district court and the court accordingly did not consider it. We
conclude that Leniart has waived this argument by failing to present it below. See
Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) (“[I]t is a well-
established general rule that an appellate court will not consider an issue raised for
the first time on appeal.”). As we have held elsewhere, “the circumstances normally”
do not “favor an exercise of discretion to address . . . new arguments on appeal where
those arguments were available to the [parties] below and they proffer no reason for
their failure to raise the arguments below.” Id. (internal citations omitted) (alteration
in original).
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We AFFIRM the district court’s judgment and rulings.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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