Nicholson v. Balt. Police Dep't

1

JAWONE D. NICHOLSON v. BALTIMORE POLICE DEPARTMENT, et al.

Civil Action No. DKC 20-3146

United States District Court, D. Maryland

July 16, 2024

MEMORANDUM OPINION

DEBORAH K. CHASANOW, United States District Judge.

Presently pending and ready for resolution in this civil rights action is the motion to alter or amend the judgment, or in the alternative, motion for new trial nisi remittitur filed by Defendant Damond Durant (“Mr. Durant”). (ECF No 145). The issues have been briefed, and the court now rules no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to alter or amend the judgment or in the alternative, motion for new trial nisi remittitur will be denied.

I. Background

Plaintiff Jawone D. Nicholson (“Mr. Nicholson”) filed this action in state court against the State of Maryland, the Mayor and City Council of Baltimore, the Baltimore Police Department, and Mr. Durant. (ECF Nos. 1; 2). The case arose from an encounter in Howard County between Mr. Durant, an off-duty Baltimore City police officer, Mr. Nicholson, and a friend of his. All three lived in Howard County at the time. After the case was removed to this court, (ECF No. 1), Mr. Nicholson filed an Amended Complaint alleging that Mr. Durant pulled a firearm on Mr. Nicholson, (ECF Nos. 18, at 2). The Amended Complaint contains the following claims against all four then-defendants: (I) False Arrest in violation of the Fourth Amendment to the United States Constitution, (II) False Imprisonment in violation of the Fourth Amendment, (III) Excessive Force in violation of the Fourth Amendment, (IV) False Arrest in violation of Articles 24 and 26 of the Maryland Declaration of Rights, (V) False Imprisonment in violation of Articles 24 and 26, (VI) Excessive Force in violation of Articles 24 and 26, (VII) False Arrest in violation of Maryland common law, (VIII) False Imprisonment in violation of Maryland common law, (IX) Intentional Infliction of Emotional Distress, and (X) Gross Negligence. (ECF No. 18, at 10). The Amended Complaint also contains a claim for Negligent Training, Supervision, and Retention (XI) and a Monell claim (XII) against the State of Maryland, Baltimore Police, and Mayor and City Council of Baltimore. (ECF No. 18, at 10-31).

Motions to dismiss were granted in part and denied in part, and all claims against the State of Maryland, the Baltimore Police Department, and the Mayor and City Council of Baltimore were dismissed. (ECF Nos. 38; 39). Discovery was conducted concerning the remaining claims against Mr. Durant. Summary judgment was granted in part and denied in part on Mr. Durant's motion. (ECF Nos. 87; 88). Judgment was entered in favor of Mr. Durant on portions of Counts I, II, IV, V and VI, and the entirety of Counts VII, VIII, and IX. (Id.). The remaining claims came on for trial before a jury.

After a three-day trial, the jury found in favor of Mr. Durant on the claims for unlawful seizure and excessive force under both the Fourth Amendment and Maryland Declaration of Rights, and gross negligence as to the constitutional claims. (ECF No. 135). The jury found for Mr. Nicholson on the claim for gross negligence by a private person and awarded Mr. Nicholson $250,000 as compensatory damages. (Id.).

On May 2, 2024, Mr. Durant filed a motion to alter or amend the judgment, or in the alternative, for a new trial nisi remittitur. (ECF No. 145). Mr. Nicholson filed an opposition on May 20, 2024, (ECF No. 148), and Mr. Durant replied on June 10, 2024, (ECF No. 151).

II. Analysis

Mr. Durant challenges the decision to allow Mr. Nicholson to pursue the gross negligence claim against him in his private, as opposed to law enforcement, capacity. The matter arose during the final pretrial conference when the parties and the court were discussing jury instructions. Mr. Durant argues that the court erred in allowing the jury to consider a claim for gross negligence by a private person because the Amended Complaint does not contain 3 such a cause of action. (ECF No. 145-1, at 9-14). Specifically, Mr. Durant contends that: (1) Mr. Nicholson “asserted this new theory of liability five (5) days before trial[,]” which “precluded [Mr. Durant] from engaging in any discovery and moving for judgment on the claim prior to trial[;]” (2) “there is no evidence in the record to suggest that [Mr. Durant] was on notice, prior to the second pretrial conference before this Court, that [Mr. Nicholson] was pursuing a theory of liability for actions in breach of a duty of a private citizen[;]” and (3) “[e]ven if [] conversations [between counsel] were sufficient to establish notice . . . such notice was still far beyond the close of discovery . . . and the dispositive motion deadline . . ., precluding [Mr. Durant] from properly being able to defend himself.” (ECF No. 145-1, at 1214).

Mr. Nicholson responds that: (1) during trial, Mr. Durant waived the argument that gross negligence as a private person was not pleaded for purposes of Rule 50; (2) the argument that gross negligence as a private person was not pleaded is not a cognizable argument under Rule 59(e); (3) Mr. Durant's motion fails on its merits because the Amended Complaint alleged gross negligence as a private individual; and (4) Mr. Durant has long known that private action is a part of the case. (ECF No. 148, at 5-16).

Mr. Nicholson first expressed-to the court during the final pretrial conference-his understanding that the Amended Complaint encompassed, and he intended to pursue, a claim against Mr. Durant even if the jury found that he was not acting under color of state law for his federal claims or within the scope of employment for the state law claims.

At that time, the court expressed skepticism as to whether the Amended Complaint included a claim for gross negligence as a private person. (ECF No. 140, at 13-23, 26, 31-32). It explained that on summary judgment it understood the Amended Complaint as only raising a claim for gross negligence as an officer. (Id. at 26). It also noted that Mr. Nicholson had not included in his proposed jury instructions the duty that Mr. Durant owed as a private person. (Id. at 14). Mr. Nicholson's counsel responded that the duty Mr. Durant owed was the duty “[n]ot to assault another private citizen.” (Id.). He acknowledged that the Amended Complaint does not contain the word “assault,” but contended that it “alleged the facts that demonstrate an assault.” (Id. at 16). Mr. Nicholson's counsel also represented to the court that he and Mr. Durant's counsel had had conversations about whether gross negligence as a private person was part of the case:

I've explained that to counsel in discussions going back months from today, maybe many months. I can probably even find it in email. As soon as counsel began to raise this question of scope of duty, my response immediately to counsel was, you know, and again, it was in discussions that aren't necessarily for the court but just this narrow part of the discussion was that I'm surprised you're not conceding scope of employment because we have the gross negligence count and he could be liable for gross negligence. And counsel never said to me your gross negligence counts turn on your constitutional count and so it's all the same. In fact, he said words to the effect of well, that might be true but that's a high standard and the jury would have to find gross negligence in that case. And that discussion was had. So counsel was on notice that we viewed the complaint this way, and it was incumbent upon him if he was going to seek summary judgment, which is what this amounts to as that count standing alone, that it be done before this point. So he absolutely knew that, Your Honor, and that's been our intention all along.

(ECF No. 140, at 22-23). Mr. Durant's counsel responded:

I'm not going to disagree with counsel that we've had these discussions, but by the same token we've been analyzing the complaint as preparing for trial and we've come to a similar conclusion. So it's not a matter of anything other than we don't feel the facts and the evidence are there for this theory . . . [T]here's no facts alleged that is there for this . . . When I took over the case, we certainly brought up the idea that the only count that would ever have individual liability would be a gross negligence, but I never -- certainly never conceded that I thought it was legitimate. So I, you know, or that it was supported by the allegations in the complaint. I just said yes, under the technical rule the only count that doesn't allege color of law is gross negligence.

(Id. at 23-24). Mr. Durant's counsel did not contradict Mr. Nicholson's counsel's statement that these discussions had occurred months prior.

During the pretrial conference, the court instructed Mr. Nicholson to file supplemental proposed jury instructions with more detail as to the potential cause of action for gross negligence as a private person. (ECF No. 140, at 14). Mr. Nicholson did so and included Mr. Durant's responses to his proposed jury instructions. (ECF Nos. 121; 122). In his responses, Mr. Durant again objected to allowing the jury to consider the cause of action. In response to Mr. Nicholson's proposed instruction defining assault, (ECF No. 121, at 1-2), Mr. Durant stated:

Defendant continues his objection to this theory as there was no assault count in the Amended Complaint. Further, the sole allegation of assault in the Amended Complaint is that Defendant pointed a gun at Plaintiff. See Paragraph 98 of the Amended Complaint. Discovery is closed, and there was not a single piece of admissible evidence or testimony by Plaintiff, that Defendant ever pointed the gun at Plaintiff.

(ECF No. 121, at 3). In response to Mr. Nicholson's...