Austin v. Paramount Parks Inc , 195 F.3d 715 ( 1999 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEPHANIE P. AUSTIN,
Plaintiff-Appellee,
v.
PARAMOUNT PARKS, INCORPORATED,
No. 98-1424
d/b/a Kings Dominion, a/k/a
Paramount Kings Dominion,
Defendant-Appellant,
OCTAVIA MARIE EATON,
Movant.
STEPHANIE P. AUSTIN,
Plaintiff-Appellee,
v.
PARAMOUNT PARKS, INCORPORATED,
No. 98-1850
d/b/a Kings Dominion, a/k/a
Paramount Kings Dominion,
Defendant-Appellant,
OCTAVIA MARIE EATON,
Movant.
STEPHANIE P. AUSTIN,
Plaintiff-Appellant,
v.
PARAMOUNT PARKS, INCORPORATED,
No. 98-1897
d/b/a Kings Dominion, a/k/a
Paramount Kings Dominion,
Defendant-Appellee,
OCTAVIA MARIE EATON,
Movant.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-96-1966-PJM)
Argued: April 8, 1999
Decided: November 1, 1999
Before WIDENER and TRAXLER, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Traxler wrote the
opinion, in which Judge Widener and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Steven Colin McCallum, MCGUIRE, WOODS, BAT-
TLE & BOOTHE, L.L.P., Richmond, Virginia, for Appellant.
Andrew J. Toland, SHAPIRO & OLANDER, Baltimore, Maryland,
for Appellee. ON BRIEF: F. Brawner Greer, Jonathan T. Blank,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Richmond,
2
Virginia, for Appellant. Charles S. Fax, SHAPIRO & OLANDER,
Baltimore, Maryland; Henry L. Marsh, III, HILL, TUCKER &
MARSH, Richmond, Virginia, for Appellee.
_________________________________________________________________
OPINION
TRAXLER, Circuit Judge:
Paramount Parks, Inc. ("Paramount") operates an amusement park
in Hanover County, Virginia known as "Paramount's Kings Domin-
ion" ("Kings Dominion" or "the park"). While visiting Kings Domin-
ion in May 1994, Stephanie P. Austin ("Austin") was positively
identified by two of Kings Dominion's employees as a woman who
had passed a bad check at the park less than one week earlier. After
questioning Austin for several hours, a special police officer of the
Kings Dominion Park Police Department caused a warrant to be
issued for Austin's arrest on a charge of grand larceny. The same offi-
cer thereafter caused a second warrant to be issued, this time for Aus-
tin's arrest on charges of forgery and uttering a forged writing. The
Commonwealth's Attorney's Office, with the assistance of the arrest-
ing officer, actively prepared the case against Austin over the next
nine months. The charges were dismissed before trial, however, once
the Commonwealth's Attorney's Office realized that one of the
employees who had identified Austin as having passed the bad check
in question had later identified another park guest in connection with
the same offense.
Austin subsequently brought this civil action against Paramount,
asserting a variety of claims arising from her arrests and prosecution
on the preceding charges. At trial, the jury returned general verdicts
for Austin on her claim under 42 U.S.C.A. § 1983 (West Supp. 1998)
and on several claims under Virginia law, and awarded her compensa-
tory and punitive damages. The district court ultimately entered judg-
ment in favor of Austin, denied Paramount's motion for judgment as
a matter of law, and awarded Austin attorney's fees and expenses
under 42 U.S.C.A. § 1988 (West Supp. 1998) upon finding her to be
a prevailing party on the § 1983 claim. This appeal followed.
3
We conclude that Paramount was entitled to judgment as a matter
of law on Austin's § 1983 claim because Austin failed to establish
that any deprivation of her federal rights was caused by an official
policy or custom of Paramount. We further conclude that Virginia law
compels judgment as a matter of law in favor of Paramount on Aus-
tin's state-law claims because Virginia law shields a private employer
from liability when a special police officer takes an action in compli-
ance with a public duty to enforce the law. Accordingly, we reverse
the denial of Paramount's motion for judgment as a matter of law,
vacate the judgment in favor of Austin, vacate the award of attorney's
fees and expenses, and remand with instructions that judgment as a
matter of law be entered in favor of Paramount.
I.
The Loss Prevention Department at Kings Dominion ("Loss Pre-
vention") is responsible for providing safety to park guests and
employees, preserving park assets, and enforcing Virginia law and
park rules and regulations. The security operations group of Loss Pre-
vention consists of special police officers associated with the Kings
Dominion Park Police Department, and seasonal uniformed security
officers. Unlike the uniformed security officers, the special police
officers are sworn conservators of the peace who are authorized to
carry firearms, make arrests, and perform the same functions that law
enforcement officers in the Commonwealth of Virginia perform. The
special police officers derive this authority from an appointment order
issued annually, on Paramount's application, by the judges of the Cir-
cuit Court of Hanover County under Va. Code Ann.§ 19.2-13
(Michie Supp. 1999).1
_________________________________________________________________
1 Va. Code Ann. § 19.2-13(A) provides in relevant part:
Upon the application of any corporation authorized to do busi-
ness in the Commonwealth or the owner, proprietor or autho-
rized custodian of any place within the Commonwealth and the
showing of a necessity for the security of property or the peace,
the circuit court of any county or city, in its discretion, may
appoint one or more special conservators of the peace who shall
serve as such for such length of time as the court may designate,
but not exceeding four years under any one appointment. The
4
The Sheriff of Hanover County had supervisory authority over the
special police officers of the Park Police Department that was
expressly acknowledged in both the Circuit Court's appointment
order and the Park Police Department's Policy and Procedure Manual
("Manual") in force at the time of the events in question. Specifically,
the appointment order provided that the special police officers "work
only under the control and direction of the Sheriff of Hanover
County." This directive was reiterated in the Manual, which provided
that the Park Police Department "has direct affiliation with the Hano-
ver County Sheriff's Department and is under the direction of the
Sheriff of Hanover County." The Manual further provided:
The Chain of Command and authority for all Kings Domin-
ion Park Police shall be as follows involving official law
enforcement:
a. Sheriff of Hanover County
b. Lieutenant of Kings Dominion Park Police
c. Kings Dominion Park Police Sergeant
d. Kings Dominion Park Police Corporal
e. Kings Dominion Park Police Officer
Although the Park Police Department fell under Loss Prevention in
the organizational structure at Kings Dominion, the testimony at trial
established that the special police officers performed their law
enforcement duties without interference from park management.
Chancellor L. Hester ("Hester"), who served as Manager of Loss Pre-
vention at the time of the events in question, provided uncontradicted
_________________________________________________________________
order of appointment may provide that a special conservator of
the peace shall have all the powers, functions, duties, responsi-
bilities and authority of any other conservator of the peace within
such geographical limitations as the court may deem appropriate,
whenever such special conservator of the peace is engaged in the
performance of his duties as such.
5
testimony that his role in matters of law enforcement was limited to
ensuring that guests suspected of committing crimes at the park were
treated courteously and professionally. As to decisions pertaining to
law enforcement, however, Hester testified that he"let the police offi-
cers do the work," knowing that those officers received assistance and
direction from the Hanover County Sheriff's Department and the
Commonwealth's Attorney's Office. The annual training that the spe-
cial police officers received reflected this division. Hester provided
instruction on interpersonal skills, while the Sheriff's Department and
the Commonwealth's Attorney's Office taught law enforcement
classes on such topics as the laws of arrest, the conducting of inter-
views, self-defense, and searches and seizures.
The principal events giving rise to the present litigation occurred
at Kings Dominion on May 15, 1994, when a guest arrived at the
park's Season Pass office and submitted a check for $360 under the
name of "Donita Morgan." Japata Taylor ("Taylor"), a park cashier,
accepted the check and proceeded to retrieve $360 worth of Kings
Dominion currency, known as "Scooby dollars," which guests use to
purchase merchandise for sale within the park. Meanwhile, a guest at
the next window submitted a check under the name of"Catherine
May" to Joshua Stone ("Stone"), another park cashier. Because the
Season Pass office did not have enough Scooby dollars to cash the
two checks, Taylor and Stone contacted their supervisor, Deborah
Samuel ("Samuel"). Samuel then had a chance to observe "Donita
Morgan" and "Catherine May" after obtaining a sufficient amount of
Scooby dollars from the park's Cash Control office.
Several days later, Loss Prevention learned that both the "Donita
Morgan" check accepted by Taylor and the "Catherine May" check
accepted by Stone were fraudulent. In fact, numerous fraudulent
checks under these and other names had been passed at Kings Domin-
ion during the May 14-15 weekend. Loss Prevention suspected that
a group of individuals were operating an illegal check-cashing
scheme at the park using fraudulent identification cards and fraudu-
lent checks,2 and provided the park's cashiers with a memorandum
_________________________________________________________________
2 The fraudulent checks were used to obtain Scooby dollars, which in
turn were used to purchase park merchandise. The merchandise would
then be returned for a refund in cash.
6
listing various names under which bad checks had already been
passed, including "Catherine May." The cashiers were directed to
immediately inform Loss Prevention should a guest submit a check
under a listed name.
Sergeant Cindy Gatewood ("Gatewood") of the Park Police Depart-
ment supervised the investigation into the apparent check-cashing
scheme. On the morning of Saturday, May 21, 1994, six days after
Taylor and Stone had accepted the "Donita Morgan" check and the
"Catherine May" check, respectively, Gatewood obtained verbal
descriptions of the suspects from Samuel, Taylor, and Stone. Accord-
ing to Gatewood's testimony at trial, Samuel described "Donita Mor-
gan" as a "middle-aged black woman with twisted hair." Taylor
described that suspect as "a black female, five foot five, five foot six,
average build, twisted hair braids, sunglasses." After obtaining verbal
statements, Gatewood asked each of the three employees to prepare
written statements. In her written statement, Taylor described "Donita
Morgan" as a woman who had braided hair and wore Chanel sun-
glasses. Samuel, in her written statement, described her as "a middle-
aged black woman with glasses, long twisted braids, and a lot of chil-
dren."
Austin, an African-American woman who at the time was a
twenty-three-year-old student at the University of Maryland, was
among the more than 20,000 guests of Kings Dominion on Saturday,
May 21. That evening, Taylor saw Austin in the park and identified
her as the "Donita Morgan" suspect from the previous weekend. Tay-
lor alerted Loss Prevention accordingly. Officer Michael Drummer
("Drummer") of the Park Police Department subsequently approached
Austin and escorted her to the Loss Prevention office. After being
contacted at home and apprised of the situation, Gatewood arranged
for Investigator Robert Schwartz ("Schwartz") of the Hanover County
Sheriff's Department to meet her at the Loss Prevention office. In the
interim, Samuel went to the Loss Prevention office and, like Taylor,
identified Austin as the "Donita Morgan" suspect from the previous
weekend.
After arriving at the Loss Prevention office, Schwartz advised Aus-
tin of her Miranda rights. He and Gatewood then informed Austin
that two employees had positively identified her as having passed a
7
fraudulent "Donita Morgan" check at the Season Pass office on
May 15, 1994, and questioned Austin for several hours as to her
whereabouts on that date. According to Gatewood's testimony at trial,
Austin stated that she was at a banquet at the University of Maryland
on May 15, 1994, but Austin refused to provide any information
which would allow that statement to be verified. Consistent with his
role as Manager of Loss Prevention, Hester occasionally appeared for
several minutes to observe the questioning. Hester testified at trial
that his purpose in doing so "was to make sure that our folks were
handling their duties properly, that the police were in the process of
moving this situation forward, and that the people involved in it were
being handled professionally and properly."
Based primarily upon the accounts of Taylor and Samuel, whom
Gatewood described at trial as "more than a hundred percent sure that
Miss Austin was the one who had written a check to them," Gatewood
decided to arrest Austin. Before doing so, however, Gatewood con-
tacted Seward M. McGhee ("McGhee") of the Commonwealth's
Attorney's Office, who advised Gatewood that Austin could be
charged only with grand larceny until the bank had processed and
returned the bad "Donita Morgan" check at issue. Schwartz thereafter
transported Austin to the Hanover County Magistrate's office, where
Gatewood caused a warrant to be issued for Austin's arrest on a
charge of grand larceny in violation of Va. Code Ann. § 18.2-95
(Michie Supp. 1999).3
_________________________________________________________________
3 While Schwartz transported Austin, Gatewood proceeded to the Han-
over County Magistrate's Office with Octavia Marie Eaton ("Eaton"),
whom Stone and Taylor had identified as the "Catherine May" suspect
from the previous weekend. Eaton was ultimately brought to trial on
charges of grand larceny, forgery, and uttering forged checks, but the
trial court dismissed the charges on the basis that Eaton's guilt could not
be established beyond a reasonable doubt. Eaton subsequently brought a
civil action against Paramount, asserting various claims under Virginia
law. The United States District Court for the Eastern District of Virginia
entered summary judgment in favor of Paramount, however, holding that
no genuine issue of fact existed as to whether Gatewood had probable
cause to believe that Eaton had committed the offenses in question. On
appeal, this court agreed and affirmed. See Eaton v. Paramount Parks,
Inc., No. 96-2518, 141 F.3d 1158, 1998 WL 163833 (4th Cir. Apr. 6,
1998) (per curiam) (unpublished).
8
On the following day, Sunday, May 22, 1994, a significant devel-
opment occurred with respect to the investigation into the check-
cashing scheme at Kings Dominion. Specifically, a guest named
Annette Williams arrived at the Season Pass office and submitted a
check under the name of "Catherine May." The park cashier who
accepted the check recognized "Catherine May" from the memoran-
dum distributed in connection with the scheme and immediately con-
tacted Loss Prevention. Simultaneously, a guest named Tonya
Williams submitted a check at the Season Pass office under the name
of "Demetry Gordon."
Gatewood subsequently arrived at the Season Pass office in
response to the cashier's call. When Gatewood asked Annette Wil-
liams to come to the Loss Prevention office, Tonya Williams became
visibly agitated. Gatewood described the situation at trial in the fol-
lowing manner: "a friend of [Annette Williams] got very verbal and
upset and said she didn't understand why I was taking her friend
away, so I invited her to come to the office with me." During this
encounter, Samuel saw Tonya Williams, an African-American
woman who had braided hair, and identified her as the woman who
had submitted the "Donita Morgan" check to Taylor one week earlier.
Gatewood subsequently brought Annette Williams and Tonya Wil-
liams to the Loss Prevention office for questioning. During the ques-
tioning, the women maintained their respective false identities as
Catherine May and Demetry Gordon. Later that day, after Annette
Williams and Tonya Williams had left the park, Gatewood discovered
their actual identities when a guest named Gladys Ann Williams was
brought to the Loss Prevention office after submitting a fraudulent
check at the Season Pass office under the name of"Michelle Lock-
hart." In a detailed confession, Gladys Ann Williams confirmed the
existence of a check-cashing scheme, provided the names and aliases
of the other participants in the scheme, and provided information con-
cerning the source from whom they had obtained fraudulent identifi-
cation cards and fraudulent checks.
That evening, Samuel alerted Hester at Loss Prevention that she
had recognized Tonya Williams as the woman who had submitted the
"Donita Morgan" check to Taylor on May 15, 1994. Hester's unre-
futed testimony indicates that he personally informed Gatewood of
9
this development later that evening. Samuel's observation, along with
written statements filed by other park employees, led Gatewood and
Hester to conclude that Tonya Williams was one of several women
who had passed bad checks at the park under the name of "Donita
Morgan." When asked at trial whether she specifically informed
McGhee that Samuel had identified Tonya Williams as"Donita Mor-
gan," Gatewood responded that "I'm not sure if I told him those exact
words, but he was advised that there was more than one Donita Mor-
gan." Ultimately, Gatewood testified, McGhee advised her that
"there's more than one person, you have your witnesses, and we're
going to go forward with the case, if there's a scheme, and bust the
scheme."
Gatewood thereafter caused a warrant to be issued for Austin's
arrest on charges of forgery and uttering a forged writing in violation
of Va. Code Ann. § 18.2-172 (Michie 1996). According to Gate-
wood's uncontradicted testimony at trial, she did so only after con-
sulting McGhee once the "Donita Morgan" checks from May 15,
1994, had been processed by the bank and returned to Kings Domin-
ion. Specifically, Gatewood testified that McGhee"told me when the
checks came in, I was to give him a call. I did, and he advised me to
go get the warrants." Gatewood subsequently informed Hester that
she spoke to McGhee and that she intended to bring additional
charges against Austin. In this regard, Hester testified at trial that
Gatewood "indicated to me somewhere in that period of time, I don't
remember the exact date or anything, that [McGhee] and she had had
a conversation, and the charges were being amended, yes, sir, I was
aware of that." Gatewood did not serve Austin with the second arrest
warrant until July 14, 1994, when Austin returned to the Hanover
County Magistrate's Office for a preliminary hearing on the charge
of grand larceny. Austin was not further detained and was allowed to
remain out on her original bond.
In January 1995, a Hanover County general district court con-
ducted a preliminary hearing on the charges pending against Austin.
Based primarily upon Gatewood's testimony, the court found proba-
ble cause to certify the charges for trial. In so doing, the court indi-
cated that it would have dismissed the charges had Austin presented
any evidence supporting her alibi: "if I would have had any evidence
at all that there was a banquet on May the 15th and if, in fact, [Austin]
10
could have come in here and presented that [she] attended a banquet
on May the 15th, then there would be no question in my mind."
Although a Hanover County grand jury subsequently indicted Austin
on the charges, the matter did not proceed to trial. Rather, in April
1995, McGhee had the charges dismissed. McGhee did so apparently
upon learning that Samuel, only one day after identifying Austin as
having passed the "Donita Morgan" check to Taylor on May 15, 1994,
identified Tonya Williams in connection with the same offense.
II.
Austin initiated the present litigation by filing a civil action in
Maryland state court, naming Paramount as the only defendant. Fol-
lowing Paramount's removal of the action to the district court, Austin
filed an eight-count second amended complaint, counts one through
five of which contained claims arising under Virginia law for false
arrest, false imprisonment, malicious prosecution, assault and battery,
and negligence, respectively. Counts six through eight, on the other
hand, contained claims arising under federal law. 4 With respect to her
§ 1983 claim asserted in count six, Austin alleged primarily that she
suffered a deprivation of her federal constitutional rights as a result
of Paramount's policy of causing individuals suspected of passing bad
checks at Kings Dominion to be detained, arrested, and prosecuted,
even without probable cause, to deter other park guests from engaging
in such conduct. Austin also alleged that Paramount failed to exercise
due care in the hiring, retention, training, and supervision of employ-
ees who participated in the investigation, detention, and arrest of indi-
viduals suspected of passing bad checks at Kings Dominion, and that
such failure manifested a conscious disregard for Austin's rights.
These latter allegations essentially reiterated the allegations support-
ing Austin's state-law negligence claim asserted in count five.
The matter ultimately proceeded to trial by jury. At the conclusion
of Austin's evidence, Paramount moved under Rule 50(a) of the Fed-
eral Rules of Civil Procedure for judgment as a matter of law on all
_________________________________________________________________
4 Before trial, Paramount moved for summary judgment on each count
asserted in Austin's second amended complaint. The district court
granted the motion solely with respect to counts seven and eight. Austin
does not challenge that ruling on appeal.
11
six counts. The district court denied the motion, and subsequently
denied Paramount's renewed Rule 50(a) motion brought at the con-
clusion of all of the evidence. Moreover, the district court ruled as a
matter of law that Hester constituted a "policymaker" of Paramount
for purposes of § 1983 liability. The district court incorporated this
ruling into its charge on the § 1983 claim, specifically instructing the
jury that "Chance Hester was a policy maker of defendant Paramount
Parks, Inc."
The district court provided the jury with a special verdict form to
be completed during its deliberations. The form directed the jury to
answer numerous interrogatories and to return a general verdict for
either Austin or Paramount on each claim.5 The first set of interroga-
tories addressed whether there was probable cause to arrest Austin on
a charge of grand larceny on May 21, 1994. Although finding that
employees Taylor and Samuel did not themselves have probable
cause to believe that Austin had committed a crime, the jury found
that Drummer, Gatewood, and Hester, along with "[Paramount's] reg-
ular employees and special police officers, acting together," did have
probable cause to believe that Austin had committed a crime. Accord-
ingly, the jury returned a general verdict for Paramount on Austin's
state-law claim for false arrest (May 21, 1994).
The second set of interrogatories concerned Austin's July 14, 1994
arrest on charges of forgery and uttering a forged writing. The jury
found that "[Paramount] participated in the decision to charge [Aus-
tin] on July 14, 1994," and that Paramount lacked probable cause to
believe that Austin had committed the offenses in question. More-
over, the jury found that Paramount's actions in this regard were
based upon the actions of both Gatewood and Hester. Therefore, the
jury returned a general verdict for Austin on her state-law claim for
false arrest (July 14, 1994).
_________________________________________________________________
5 Before the case was submitted to the jury, Austin withdrew her claim
for false imprisonment asserted in count two. Also, during the jury's
deliberations, the district court converted the claim for false arrest
asserted in count one into two separate claims, one pertaining to each
date on which Austin was arrested. We shall refer to these claims as
"false arrest (May 21, 1994)" and "false arrest (July 14, 1994)," respec-
tively.
12
The third set of interrogatories concerned Austin's state-law claim
for malicious prosecution. The jury found that, prior to the dismissal
of the charges, Paramount lacked probable cause to have Austin pros-
ecuted. The jury further found that Paramount's actions in this respect
were based upon Gatewood's actions and not upon Hester's actions.
Ultimately, the jury returned a general verdict for Austin on her state-
law claim for malicious prosecution. The jury returned a general ver-
dict for Paramount, however, on Austin's state-law claims for assault
and battery, and negligence.
The jury was then presented with three interrogatories on the
§ 1983 claim, each of which ultimately asked the jury whether a par-
ticular action was taken "pursuant to a policy, custom or practice of
[Paramount]." The first interrogatory asked the jury whether Drum-
mer and Gatewood lacked probable cause to arrest Austin on May 21,
1994 and, if so, whether Drummer or Gatewood arrested Austin on
that date pursuant to a policy, custom, or practice of Paramount.
Because the jury had earlier found that both Drummer and Gatewood
had probable cause to arrest Austin on May 21, 1994, it did not reach
the "policy, custom, or practice" issue. The second § 1983 interroga-
tory asked the jury whether Gatewood and Hester lacked probable
cause to have Austin arrested on July 14, 1999 and, if so, whether
Austin was arrested on that date pursuant to a policy, custom, or prac-
tice of Paramount. The jury determined that the actions of Gatewood
and Hester in this respect were not taken pursuant to a policy, custom,
or practice of Paramount. In the third § 1983 interrogatory, the jury
was asked whether Paramount lacked probable cause to continue to
prosecute Austin before the charges were dismissed and, if so,
whether Austin was being prosecuted pursuant to a policy, custom, or
practice of Paramount. The jury determined that Paramount's actions
were not taken pursuant to a policy, custom, or practice of Paramount.
The end result, of course, is that in none of the§ 1983 interrogato-
ries did the jury find that Austin's arrest and prosecution resulted
from a policy, custom, or practice of Paramount. Nevertheless, the
jury returned a general verdict for Austin on her§ 1983 claim. The
jury awarded Austin $40,000 in compensatory damages and $40,000
in punitive damages, for a total damages award of $80,000.
Following the announcement of the jury's general verdicts and
interrogatory answers, the district court thanked the jurors for their
13
service and asked the parties "[i]f there is nothing before we dismiss
the jurors[?]" When both parties responded"No, Your Honor," the
district court informed the jurors that their service was completed and
discharged them accordingly. Shortly afterwards, the district court
reviewed the special verdict form and acknowledged that the jury had
not found that a policy, custom, or practice of Paramount caused an
alleged deprivation of Austin's rights. Accordingly, the district court
stated that the jury "really could not find count 6 [the § 1983 claim]
in favor of the plaintiff," observing that "factually the predicate for
any finding in favor of the plaintiff on count 6 would not be present,
given the findings of the jury on all the underlying answers."
Relying upon the jury's interrogatory answers on the§ 1983 claim,
Paramount moved for entry of judgment on that claim under Rule
49(b) of the Federal Rules of Civil Procedure. The district court, how-
ever, denied the motion and entered final judgment in accordance
with the jury's general verdicts and damages award. 6 The court there-
after denied Paramount's Rule 50(b) of the Federal Rules of Civil
Procedural for judgment as a matter of law on the claims upon which
Austin prevailed, thereby leaving the final judgment intact. Then,
upon finding Austin to be a prevailing party on the§ 1983 claim, see
42 U.S.C.A. § 1988(b), the district court awarded her $256,365.80 in
attorney's fees and expenses.
Paramount now appeals from the judgment, from the denial of its
Rule 49(b) motion for entry of judgment on the § 1983 claim, from
the denial of its Rule 50(b) motion for judgment as a matter of law,
and from the award of attorney's fees and expenses. Austin cross-
appeals from the award of attorney's fees and expenses, asserting that
the district court failed to consider certain work performed following
entry of final judgment in calculating that award, including the prepa-
ration and defense of the motion for attorney's fees and expenses.
_________________________________________________________________
6 In so doing, the district court denied in part Austin's post-trial motion
for entry of judgment in her favor on all claims submitted to the jury.
Austin does not challenge this ruling on appeal.
14
III.
We first address Paramount's contention that it was entitled under
Rule 49(b) to entry of judgment on the § 1983 claim in accordance
with the jury's interrogatory answers. We shall then determine
whether Paramount was entitled to judgment as a matter of law on the
§ 1983 claim either because Paramount was not a state actor or
because Austin failed to establish that any deprivation of federal
rights was caused by an official policy or custom of Paramount.
Finally, we shall determine whether Paramount was entitled to judg-
ment as a matter of law on Austin's claims for false arrest (July 14,
1994) and malicious prosecution on the ground that Gatewood, as a
special police officer, was engaged in the performance of her public
duty to enforce Virginia law when she arrested Austin and assisted
with the prosecution.
A.
Rule 49(b) permits a district court to "submit to the jury, together
with appropriate forms for a general verdict, written interrogatories
upon one or more issues of fact the decision of which is necessary to
a verdict." Fed. R. Civ. P. 49(b). The Rule contemplates three scenar-
ios that may result from such an approach, and provides the district
court with corresponding courses of action. First, if the general ver-
dict and the interrogatory answers are harmonious,"the appropriate
judgment upon the verdict and answers shall be entered pursuant to
Rule 58." Id. Second, if the interrogatory answers are consistent with
each other but one or more is inconsistent with the general verdict, the
district court may enter judgment in accordance with the interrogatory
answers notwithstanding the general verdict, return the jury for fur-
ther consideration of its interrogatory answers and general verdict, or
order a new trial. Third, if the interrogatory answers are inconsistent
with each other and one or more is likewise inconsistent with the gen-
eral verdict, the district court is prohibited from entering judgment,
but may order a new trial or return the jury for further consideration
of its interrogatory answers and general verdict.
We have previously considered the ramifications of a litigant's fail-
ure to challenge a verdict as inconsistent under Rule 49(b) until after
the jury has been discharged. In White v. Celotex Corp., 878 F.2d 144
15
(4th Cir. 1989) (per curiam), the plaintiffs moved for a new trial under
Rule 49(b) on the ground that the jury's interrogatory answers were
inconsistent with each other and likewise inconsistent with the gen-
eral verdict for the defendants, thus implicating the third Rule 49(b)
scenario. The motion, however, was not brought until after the dis-
charge of the jury. In affirming the district court's determination that
the motion was barred from consideration and that judgment was
properly entered in favor of the defendants, we noted that the purpose
of Rule 49(b) is "to promote the efficiency of trials by allowing the
original deliberating body to reconcile inconsistencies without the
need for another presentation of the evidence to a new body." Id. at
146. We determined, therefore, that the Rule obligates a party "to
object to any asserted inconsistencies in the response to jury interrog-
atories prior to the discharge of the jury," id., and that failure to com-
ply with that obligation "will constitute a waiver of a party's right to
seek a new trial," id.
In the present litigation, the district court held that Paramount's
Rule 49(b) motion for entry of judgment on Austin's§ 1983 claim
was barred under White because Paramount failed to raise the alleged
inconsistency between the interrogatory answers and general verdict
prior to the discharge of the jury. The district court further held that
the general verdict on the § 1983 claim could be reconciled with the
jury's finding that Paramount lacked probable cause to arrest Austin
on July 11, 1994, and that Paramount's actions in that regard were
based upon the actions of Hester, whom the district court had held to
be a "policymaker" of Paramount for purposes of § 1983 liability.
Accordingly, the district court entered judgment in favor of Austin on
the § 1983 claim in accordance with the general verdict.
Paramount challenges the district court's determination that its
Rule 49(b) motion was barred. In particular, Paramount argues that
the jury's § 1983 interrogatory answers were not inconsistent with
each other, only inconsistent with the general verdict, and thus the
present matter involved the second Rule 49(b) scenario. Paramount
properly notes that, under the second scenario, a district court may
enter judgment in accordance with the interrogatory answers notwith-
standing the general verdict, return the jury for further consideration
of its interrogatory answers and general verdict, or order a new trial.
Emphasizing that it does not seek a new trial in the present appeal,
16
Paramount concedes that White would have barred a motion for a new
trial because Paramount failed to raise the asserted inconsistency prior
to the jury's discharge. However, Paramount maintains, White does
not bar a motion for entry of judgment because such relief, unlike a
new trial, does not implicate the efficiency concerns underlying
White.
The inherent flaw in Paramount's analysis is the notion that a dis-
trict court is constrained by the options delineated in Rule 49(b)
despite a litigant's failure to raise an asserted inconsistency before the
jury is discharged. Were that the case, the district court in White could
not have entered judgment in favor of the defendants because entry
of judgment is expressly prohibited in a situation falling within the
third Rule 49(b) scenario. Indeed, had the third scenario in Rule 49(b)
controlled in White, the district court's only remaining option would
have been to order a new trial, precisely the relief that we held to be
barred in that case. Accordingly, under White , a litigant's failure to
raise an inconsistency before the jury is discharged renders Rule 49(b)
inapplicable and thus precludes that litigant from relying upon the
inconsistency to challenge an adverse disposition.
Furthermore, we reject Paramount's position that the efficiency
concerns underlying White are not applicable when a party seeks
entry of judgment rather than a new trial. Irrespective of the relief
sought by a litigant asserting a Rule 49(b) inconsistency, a district
court could ultimately determine that the best course of action with
respect to such an inconsistency is to order a new trial, an option
available under both the second and third Rule 49(b) scenarios. How-
ever, should the objecting party fail to raise the inconsistency prior to
the jury's discharge, the court will effectively lose the opportunity to
have the jury reconsider the inconsistency. As a result, the primary
purpose of Rule 49(b) will have been defeated. See White, 878 F.2d
at 146 (noting that the purpose of Rule 49(b) is"to promote the effi-
ciency of trials by allowing the original deliberating body to reconcile
inconsistencies without the need for another presentation of the evi-
dence to a new body"). Accordingly, we conclude that Paramount's
Rule 49(b) motion for entry of judgment in accordance with the inter-
rogatory answers on Austin's § 1983 claim was properly barred in
light of its failure to raise the alleged inconsistency prior to the jury's
discharge.
17
B.
Paramount next maintains that it was entitled to judgment as a mat-
ter of law on Austin's § 1983 claim either because Paramount was not
a state actor or because Austin failed to establish that an official pol-
icy or custom of Paramount caused a deprivation of her federal rights.
We review de novo a district court's denial of a Rule 50(b) motion
for judgment as a matter of law, viewing the evidence in the light
most favorable to the prevailing party and drawing all reasonable
inferences in her favor. See Konkel v. Bob Evans Farms Inc., 165
F.3d 275, 279 (4th Cir.), cert. denied, 68 U.S.L.W. 3106 (U.S. Oct.
4, 1999) (No. 99-180).
Section 1983 provides in relevant part as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the depriva-
tion of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding
for redress. . . .
42 U.S.C.A. § 1983. To prevail against Paramount on her § 1983
claim, Austin had the burden to establish that she was "deprived of
a right secured by the Constitution or laws of the United States, and
that the alleged deprivation was committed under color of state law."
American Mfrs. Mut. Ins. Co. v. Sullivan, 119 S. Ct. 977, 985 (1999).
Paramount does not dispute that Austin's rights under the Fourth and
Fourteenth Amendments were violated when Gatewood effected the
July 14, 1994 arrest without probable cause. However, Paramount
does dispute that it was a state actor for purposes of § 1983 merely
because it employed Gatewood as a special police officer.
The question of whether Paramount was a state actor is a thorny
one, but one which we need not decide here because Austin's clear
failure to show that an official policy or custom of Paramount was the
moving force behind Austin's July 14, 1994 arrest negates the neces-
sity of addressing the issue. For purposes of our review we will
18
assume, without holding, that Paramount was a state actor and pro-
ceed to consider Paramount's challenge to Austin's assertion that Par-
amount had an official policy or custom justifying the imposition of
liability under § 1983.
Our analysis begins with general principles of municipal liability.
In Monell v. Department of Soc. Servs., 436 U.S. 658 (1978), the
Supreme Court held that municipalities and other local governmental
bodies constitute "persons" within the meaning of § 1983, see id. at
688-89. The Court, however, has consistently refused to impose
§ 1983 liability upon a municipality under a theory of respondeat
superior. See Board of the County Comm'rs v. Brown, 520 U.S. 397,
403 (1997). Rather, under Monell and its progeny, a municipality is
subject to § 1983 liability only when "it causes such a deprivation
through an official policy or custom." Carter v. Morris, 164 F.3d 215,
218 (4th Cir. 1999) (emphasis added). We have determined that
"[m]unicipal policy may be found in written ordinances and regula-
tions, in certain affirmative decisions of individual policymaking offi-
cials, or in certain omissions on the part of policymaking officials that
manifest deliberate indifference to the rights of citizens." Id. (internal
citations omitted). Municipal custom, on the other hand, may arise
when a particular practice "is so persistent and widespread and so per-
manent and well settled as to constitute a custom or usage with the
force of law." Id. (internal quotation marks omitted).
We have recognized, as has the Second Circuit, that the principles
of § 1983 municipal liability articulated in Monell and its progeny
apply equally to a private corporation that employs special police offi-
cers. Specifically, a private corporation is not liable under § 1983 for
torts committed by special police officers when such liability is predi-
cated solely upon a theory of respondeat superior. See Powell v.
Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982); Rojas v. Alexan-
der's Dep't Store, Inc., 924 F.2d 406 (2d Cir. 1990); see also Sanders
v. Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir. 1993) (con-
cluding that private corporation is not subject to§ 1983 liability under
theory of respondeat superior regarding acts of private security guard
employed by corporation); Iskander v. Village of Forest Park, 690
F.2d 126, 128 (7th Cir. 1982) (same). Rather, a private corporation is
liable under § 1983 only when an official policy or custom of the cor-
19
poration causes the alleged deprivation of federal rights. See Rojas,
924 F.2d at 408; Sanders, 984 F.2d at 976; Iskander, 690 F.2d at 128.
In her second amended complaint, Austin primarily alleged in sup-
port of her § 1983 claim that she suffered a deprivation of her federal
constitutional rights as a result of Paramount's policy of causing indi-
viduals suspected of passing bad checks at Kings Dominion to be
detained, arrested, and prosecuted, even without probable cause, to
deter other park guests from engaging in such conduct. At trial, how-
ever, Austin was unable to present any evidence to substantiate those
allegations. Rather, Austin's evidence focused on her alternative the-
ory of § 1983 liability, also alleged in the second amended complaint,
that Paramount failed to exercise due care in training employees who
participated in the investigation, detention, and arrest of individuals
suspected of passing bad checks at Kings Dominion, and that such
failure manifested a conscious disregard for Austin's rights. Indeed,
the district court, in denying Paramount's motion for judgment as a
matter of law on the § 1983 claim at the close of Austin's evidence,
relied solely upon this theory:
I think there's evidence from which [Austin] can argue in
this case that really it was a pretty patchy situation at [Kings
Dominion], that they really didn't have any clear-cut train-
ing program to educate their personnel on dealing with cus-
tomers who are suspected of passing bad checks. They did
something, but arguably it was pretty patchy, and it seems
to me it could be argued that it was deliberately indifferent.
On appeal, however, Austin has abandoned the preceding theory of
§ 1983 liability, obviously because the general verdict in favor of Par-
amount on the negligence claim contained in count five and the
adverse interrogatory answers on the § 1983 claim showed that the
jury rejected Austin's claim of inadequate training. Now, Austin pre-
sents a theory of § 1983 liability that resembles the reasoning offered
by the district court in disposing of Paramount's Rule 49(b) motion
and is purportedly reconcilable with the jury's verdict. Specifically,
Austin argues that Hester was a policymaker who acquiesced in Gate-
wood's intention to effect the July 14, 1994 arrest of Austin on
charges of forgery and uttering a forged writing, and who thereby
subjected Paramount to liability. We find this claim untenable.
20
1.
The Supreme Court has recognized that, under appropriate circum-
stances, a municipality may incur § 1983 liability for a single decision
of a policymaking official. See Pembaur v. City of Cincinnati, 475
U.S. 469, 480 (1986) (plurality opinion) (holding county liable under
§ 1983 when county prosecutor instructed sheriff's deputies to forci-
bly enter plaintiff's place of business to serve capiases upon third par-
ties); Carter, 164 F.3d at 218 ("Municipal policy may be found . . .
in certain affirmative decisions of individual policymaking officials,
or in certain omissions on the part of policymaking officials that man-
ifest deliberate indifference to the rights of citizens.") (internal cita-
tions omitted). In determining whether an individual constitutes a
"policymaking official" in this sense, courts inquire whether the indi-
vidual speaks "with final policymaking authority for the local govern-
mental actor concerning the action alleged to have caused the
particular constitutional or statutory violation at issue." Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 737 (1989); see Pembaur, 475 U.S.
at 481 ("Municipal liability attaches only where the decisionmaker
possesses final authority to establish municipal policy with respect to
the action ordered."). Whether the individual in question exercises
such authority "is not a question of fact in the usual sense." City of
St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). Rather, the inquiry
"is dependent upon an analysis of state law," McMillian v. Monroe
County, Alabama, 520 U.S. 781, 786 (1997), requiring review of "the
relevant legal materials, including state and local positive law, as well
as custom or usage having the force of law." Jett, 491 U.S. at 737
(internal quotation marks omitted). A district court's determination of
whether an individual exercises final policymaking authority in a par-
ticular area is reviewed de novo. See Scala v. City of Winter Park, 116
F.3d 1396, 1399 (11th Cir. 1997); Gillette v. Delmore, 979 F.2d 1342,
1349 (9th Cir. 1992).
The foregoing principles of § 1983 "policymaker" liability were
articulated in the context of suits brought against municipalities and
other local government defendants. Nevertheless, these principles are
equally applicable to a private corporation acting under color of state
law when an employee exercises final policymaking authority con-
cerning an action that allegedly causes a deprivation of federal rights.
See Howell v. Evans, 922 F.2d 712, 724-25, vacated after settlement,
21
931 F.2d 711 (11th Cir. 1991) (assessing whether prison medical
director employed by private corporation exercised final policymak-
ing authority for employer concerning equipment and staff procure-
ment). In the present appeal, Austin asserts that Paramount's liability
under § 1983 derives from Hester's single decision to acquiesce in
Gatewood's intention to effect Austin's July 14, 1994 arrest on
charges of forgery and uttering a forged writing. Accordingly, the rel-
evant "policymaker" inquiry is whether Hester, as a matter of state
and local positive law, or custom or usage having the force of law,
see Jett, 491 U.S. at 737, exercised final policymaking authority con-
cerning arrests effected by the special police officers of the Park
Police Department.7 We are satisfied that he did not.
First, nothing in the positive law of the Commonwealth of Virginia
or of Hanover County granted Hester any policymaking authority
concerning arrests effected by the special police officers. In particu-
lar, nothing in the Virginia statute authorizing the appointment of spe-
cial police officers granted a private corporation or any of its
employees authority over the law enforcement functions performed
by those officers. See Va. Code Ann. § 19.2-13(A). Moreover, noth-
ing in the appointment order issued by the Circuit Court of Hanover
County granted any authority over the special police officers' law
enforcement functions to any of Paramount's employees, including
the Manager of Loss Prevention. Indeed, the appointment order
explicitly mandated that those officers "work only under the control
and direction of the Sheriff of Hanover County."
Second, nothing in the written policies of Paramount or of Kings
Dominion granted Hester any policymaking authority over arrests
effected by the special police officers. The Park Police Department's
Policy and Procedure Manual provided that the Park Police Depart-
ment "has direct affiliation with the Hanover County Sheriff's Depart-
ment and is under the direction of the Sheriff of Hanover County."
The Manual further provided:
_________________________________________________________________
7 At trial, the district court instructed the jury that Hester was "a policy
maker of defendant Paramount Parks, Inc.," but failed to specify the area
in which Hester purportedly exercised final policymaking authority for
Paramount.
22
The Chain of Command and authority for all Kings Domin-
ion Park Police shall be as follows involving official law
enforcement:
a. Sheriff of Hanover County
b. Lieutenant of Kings Dominion Park Police
c. Kings Dominion Park Police Sergeant
d. Kings Dominion Park Police Corporal
e. Kings Dominion Park Police Officer
Aside from effectively illustrating the final authority of the Sheriff of
Hanover County over the special police officers, the preceding list
conspicuously omitted any reference to the Manager of Loss Preven-
tion.
Third, even viewing the evidence at trial in the light most favorable
to Austin and drawing all reasonable inferences in her favor, we can-
not conclude that Hester had any policymaking authority concerning
arrests effected by the special police officers as a matter of custom or
usage having the force of law. See Jett, 491 U.S. at 737. At trial, Aus-
tin presented no evidence that Hester had ever directed a special
police officer to effect an arrest or that he had ever prevented the
same. Moreover, there was no evidence that the special police officers
routinely consulted Hester or obtained his approval concerning
impending arrests. Nor was there any evidence that Gatewood con-
sulted Hester or obtained his approval concerning the two arrests in
the present litigation. Rather, Gatewood's testimony regarding the
events preceding those arrests demonstrates that she consulted only
McGhee of the Commonwealth's Attorney's Office. Furthermore,
when asked whether he knew that Gatewood planned to bring addi-
tional charges against Austin, Hester testified that"[Gatewood] indi-
cated to me somewhere in that period of time . . . that [McGhee] and
she had had a conversation, and the charges were being amended, yes,
sir, I was aware of that." Although certainly suggesting that Gate-
wood kept Hester informed as to the status of Austin's case, this testi-
23
mony in no way indicates that Gatewood attempted either to consult
with Hester or to obtain his approval regarding her decision to bring
additional charges against Austin. Put simply, there was no evidence
that Hester, despite his title of Manager of Loss Prevention, in prac-
tice exercised any control over the decisions of the special police offi-
cers regarding detention and/or arrests of park guests suspected of
criminal offenses in this case or any other case. Indeed, the uncontra-
dicted testimony was to the contrary. In fact, we find no support in
the record for any specific policymaking authority given to or exer-
cised by Hester regarding matters of law enforcement. The questions
simply were not asked, nor was evidence ever produced in this regard.
In light of the foregoing analysis, we have no basis upon which to
conclude that Hester exercised final policymaking authority concern-
ing arrests effected by the special police officers of the Park Police
Department. Because Austin's position on Paramount's liability under
§ 1983 rests entirely upon her theory that Hester was a "policymaker,"
we are satisfied that she failed to establish that any deprivation of her
federal rights was caused by an official policy or custom of Para-
mount. Accordingly, we conclude that Paramount was entitled to
judgment as a matter of law on Austin's § 1983 claim.8
2.
Because Paramount was entitled to judgment as a matter of law on
Austin's § 1983 claim, Austin cannot be considered a prevailing party
on that claim for purposes of § 1988. We therefore vacate the district
court's award of attorney's fees and expenses. Accordingly, we need
not address the issue presented in Austin's cross-appeal, which per-
tains solely to the district court's calculation of that award.
_________________________________________________________________
8 It is worth remembering that the jury found Austin's July 14, 1994
arrest was not effected pursuant to a policy, custom, or practice of Para-
mount, notwithstanding the district court's instruction that Hester was a
"policymaker" of Paramount. The net result in this case is that there was
neither a legal nor a factual basis to find Paramount liable under § 1983
based upon a policy.
24
C.
Lastly, we turn to the issue of whether Paramount is entitled to
judgment as a matter of law on Austin's state-law claims for false
arrest (July 14, 1994) and malicious prosecution. Again, we review de
novo the district court's denial of Paramount's Rule 50(b) motion for
judgment as a matter of law, viewing the evidence in the light most
favorable to Austin and drawing all reasonable inferences in her
favor. See Konkel, 165 F.3d at 279.
The Virginia Supreme Court has established that a private
employer may not be held liable under a theory of respondeat
superior for torts committed by a special police officer when he or
she acts as a public officer, as opposed to an agent, servant, or
employee of the employer. See Norfolk & W. Ry. Co. v. Haun, 187
S.E. 481, 482 (Va. 1936); Glenmar Cinestate, Inc. v. Farrell, 292
S.E.2d 366, 369-70 (Va. 1982). The court elaborated upon this key
distinction in Glenmar:
Moreover, we held in N. & W. Ry. Co. v. Haun, 167 Va.
157, 187 S.E. 481 (1936), that a special police officer
appointed by public authority, but employed and paid by a
private party, does not subject his employer to liability for
his torts when the acts complained of are performed in car-
rying out his duty as a public officer. The test is: in what
capacity was the officer acting at the time he committed the
acts for which the complaint is made? If he is engaged in the
performance of a public duty such as the enforcement of the
general laws, his employer incurs no vicarious liability for
his acts, even though the employer directed him to perform
the duty. On the other hand, if he was engaged in the protec-
tion of the employer's property, ejecting trespassers or
enforcing rules and regulations promulgated by the
employer, it becomes a jury question as to whether he was
acting as a public officer or as an agent, servant, or
employee.
292 S.E.2d at 369-70.
25
In the present litigation, the only viable factual predicate for Aus-
tin's claims for false arrest (July 14, 1994) and malicious prosecution
is that Gatewood lacked probable cause to effect the July 14, 1994
arrest and further lacked probable cause to assist with the prosecution
of the pertinent charges.9 It is without question, however, that Gate-
wood effected Austin's arrest and assisted with the prosecution in the
course of performing her public duty to enforce the Commonwealth
of Virginia's law against forgery and uttering a forged writing. See
Va. Code Ann. § 18.2-172. Accordingly, under Glenmar, the issue of
whether Gatewood acted in her capacity as a public officer was not
one for the jury's resolution.
Because Austin presented no evidence that Gatewood acted other
than in her capacity as a public officer in effecting Austin's July 14,
1994 arrest and assisting with the prosecution, Paramount cannot be
held vicariously liable with respect to Austin's claims for false arrest
(July 14, 1994) and malicious prosecution. See Glenmar, 292 S.E.2d
at 369 ("If [the officer was] engaged in the performance of a public
duty such as the enforcement of the general laws, his employer incurs
no vicarious liability for his acts. . . ."). We conclude, therefore, that
Paramount was entitled to judgment as a matter of law on both claims.10
IV.
In summary, we conclude that Paramount was entitled to judgment
as a matter of law on Austin's § 1983 claim because Austin failed to
establish that any deprivation of her federal rights was caused by an
official policy or custom of Paramount. We further conclude that,
because Gatewood was engaged in the performance of her public duty
_________________________________________________________________
9 In light of our analysis in part III.B., we are satisfied that there is no
basis for the jury's finding that Austin's July 14, 1994 arrest was based
upon Hester's actions. Indeed, the record is devoid of any evidence that
Hester participated in or approved the decision to effect that arrest or that
he could have prevented that arrest upon learning of Gatewood's inten-
tion to bring additional charges.
10 Although certain individuals may have been liable for their acts in
regard to Austin's arrest and prosecution, Austin did not join them as
defendants in the present litigation. Rather, Austin chose to bring suit
only against Paramount.
26
to enforce Virginia law when she effected Austin's July 14, 1994
arrest and assisted with the prosecution, Paramount was entitled to
judgment as a matter of law on Austin's claims for false arrest
(July 14, 1994) and malicious prosecution. Accordingly, we reverse
the denial of Paramount's Rule 50(b) motion for judgment as a matter
of law, vacate the judgment in favor of Austin, vacate the award of
attorney's fees and expenses, and remand with instructions that judg-
ment as a matter of law be entered in favor of Paramount.
VACATED AND REMANDED
27