Wierzbic v. Howard, 13-CV-978F

RAYMOND WIERZBIC, BERNICE WIERZBIC, BRIAN WIERZBIC,and ANGELENE WIERZBIC, Plaintiff, v. ERIE COUNTY SHERIFF TIMOTHY HOWARD, DEPUTY ERIE COUNTY SHERIFF MICHAEL HOOCK,DEPUTY ERIE COUNTY SHERIFF JASON WEISS, DEPUTY ERIE COUNTY SHERIFF THOMAS WAS, andDEPUTY ERIE COUNTY SHERIFF JAMES FLOWERS, Defendants.

13-CV-978F

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

May 6, 2019

AMENDED DECISION and ORDER

APPEARANCES:

PAUL E. FALLON, ESQ.

Attorney for Plaintiffs

57 High Park Boulevard

Amherst, New York 14226

DAIRE BRIAN IRWIN, ESQ.

Attorney for Plaintiffs

210 Voorhees Avenue

Buffalo, New York 14214

LIPPES MATHIAS WEXLER FRIEDMAN LLP

Attorneys for Defendants

JENNIFER C. PERSICO,

ERIC MICHAEL SOEHNLEIN, and

JAMES PETER BLENK, of Counsel

50 Fountain Plaza

Suite 1700

Buffalo, New York 14202

JURISDICTION

On April 20, 2018, the parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned. (Dkt. 101). The matter is presently before the court on Defendants' motion for judgment as a matter of law (Dkt. 136), filed December 11, 2018, and on motions in limine, filed on November 1, 2018, by Defendants (Dkt. 115), and on November 2, 2018, by Plaintiff (Dkt. 118), and Defendants (Dkt. 119).

BACKGROUND

Plaintiffs Raymond Wierzbic ("Raymond"), his wife Bernice Wierzbic ("Bernice"), their son Brian Wierzbic ("Brian"), and their daughter Angelene Wierzbic ("Angelene"), commenced this by filing on September 27, 2013, the Complaint, pursuant to 42 U.S.C. § 1983, against Defendants County of Erie ("County"), Erie County Sheriff's Department ("Sheriff's Department"), Erie County Sheriff Timothy Howard ("Sheriff Howard"), Erie County Deputy Sheriffs Michael Hoock ("Deputy Hoock"), Jason Weiss ("Deputy Weiss"), Thomas Was ("Deputy Was"), and James Flowers ("Deputy Flowers") (together, "County Defendants"), and the East Aurora Police Department ("East Aurora Police"), East Aurora Police Chief Ronald Krowka ("Police Chief Krowka"), and East Aurora Police Officer Robert Braeuner ("Officer Brauener") (together, "East Aurora Defendants"). The Complaint sets forth federal civil rights claims for (1) excessive force; (2) malicious prosecution; (3) failure to intervene; (4) conspiracy; (5) First Amendment violation; (6) Fifth Amendment violations; (7) false arrest; and (8) false imprisonment, and state law claims for (1) false arrest; (2) false imprisonment; (3) assault; (4) battery; (5) intentional infliction of emotional distress; (6) negligent hiring and retention; and (7) negligent training and supervision. Plaintiffs seek in connection with their claims compensatory damages, punitive damages, and an award of reasonable attorney fees under 42 U.S.C. § 1988.

After discovery was complete, motions for summary judgment were filed by East Aurora Defendants (Dkt. 81) ("East Aurora Defendants' summary judgment motion"), County Defendants (Dkt. 83) ("County Defendants' summary judgment motion"), and Plaintiffs (Dkt. 84) ("Plaintiffs' summary judgment motion"). In a Decision and Order filed January 25, 2018 (Dkt. 98) ("Summary Judgment D&O"), District Judge William M. Skretny granted East Aurora Defendants' summary judgment motion and terminated the East Aurora Defendants as parties, denied Plaintiffs' summary judgment motion, and granted in part and denied in part the County Defendants' summary judgment motion dismissing the County as a party, dismissing all claims against remaining Defendants in their official capacities, dismissing the state law claims against Defendants in their individual capacities except with regard to Defendants Sheriff Howard and Deputy Hoock, dismissing all other claims as against Sheriff Howard, dismissing Plaintiff's First and Fifth Amendment claims, holding no punitive damages claim could be brought against any Defendant in his official capacity, and deeming the Complaint amended to include a New York common law claim for trespass which was could be maintained against only Defendants Sheriff Howard and Deputy Hoock ("Defendants"). Summary Judgment D&O at 32-33. With regard to the trespass claim, Judge Skretny further found all the necessary elements to hold Deputy Hoock liable for trespass except for sufficient proof that Plaintiff were owners and possessors of the subject premises at the time of the incident. Summary Judgment D&O at 31-32.

After the parties consented to proceed before the undersigned (Dkt. 101), trial was scheduled with jury selection to commence November 5, 2018 (Dkt. 107). Defendants filed two in limine motions including their first, filed November 1, 2018,seeking an order precluding at trial Plaintiffs from (1) presenting evidence of indemnification of Defendant Deputy Sheriffs, (2) presenting evidence of or referring to the fact that the County was once a Defendant to this action, (3) referring to Defendants' counsel as County Attorneys, and (4) suggesting the jury award a specific dollar amount as damages, (Dkt. 115) ("Defendants' First In Limine Motion"), and their second, filed November 2, 2018, seeking a court order allowing Defendants to assert during trial a qualified immunity defense and a justification defense to the state trespass claim. (Dkt. 119) ("Defendants' Second In Limine Motion"). On November 2, 2018, Plaintiffs filed an in limine motion seeking a court order with regard to the trespass claim that only the question of damages be submitted to the jury with directions the jury can award unlimited damages, and clarifying that Bernice Wierzbic asserted claims for trespass, false arrest, excessive force, malicious prosecution and intentional infliction of emotional distress. (Dkt. 118) ("Plaintiffs' In Limine Motion") (collectively, "the In Limine Motions").

Trial commenced on November 5, 2018, with the selection of eight jurors, and continued through November 8, 2018, with Plaintiffs calling as witnesses Brian, Raymond, Angelene, and Bernice Wierzbic, and Deputy Hoock, Deputy Flowers, and Deputy Weiss.¹ At the conclusion of Plaintiffs' direct examination of Defendant Deputy Hoock, Plaintiffs moved pursuant to Fed.R.Civ.P. 50(a) for a directed verdict on the New York common law trespass claim, TR3 at 138-49, which the undersigned denied. Id. at 152. After the close of all proof, Defendants moved pursuant to Fed.R.Civ.P. 50(a) for judgment as a matter of law on their affirmative defense of qualified immunity, with theundersigned reserving decision pending the jury's determination on the substantive claims and special interrogatories. Dkt. 135. Prior to submitting the case to the jury, the undersigned, upon Defendants' motion, directed verdict in favor of Defendants on Plaintiffs' malicious prosecution claim, November 9, 2018 Minute Entry (Dkt. 128), Plaintiffs voluntarily withdrew all New York common law claims except for trespass, and all federal claims except for unlawful arrest and excessive force, as well as all claims against Defendants Deputy Flowers, Deputy Weiss, and Deputy Was, leaving only the New York common law trespass claim and the federal civil rights claims for unlawful arrest and excessive force as against only Defendants Deputy Hoock and Sheriff Howard for whom any liability would be in his official capacity and derivative of Deputy Hoock's liability pursuant to the theory of respondeat superior.

The jury commenced deliberations on November 9, 2018, and continued on November 13, 2018, when the jury indicated they were deadlocked and unable to reach a verdict on any of the claims as against either Defendant. The court then declared, with the parties' concurrence, a mistrial and dismissed the jury (Dkt. 129).

Intending to retry the case, a pretrial conference to set retrial dates was scheduled first for December 17, 2018 (Dkt. 130), and then adjourned to January 28, 2019 (Dkt. 131), and further adjourned on January 18, 2019 (Dkt. 140), pending resolution of Defendants' instant motion for judgment as a matter of law, filed December 11, 2011 (Dkt. 136) ("Defendants' Rule 50(b) Motion"), attaching the Attorney Affidavit of Jennifer C. Persico, Esq. (Dkt. 136-1) ("Persico Affidavit"), and Defendants' Motion for Judgment as a Matter of Law Pursuant to Rule 50 of the Federal Rules of Civil Procedure (Dkt. 136-2) ("Defendants' Memorandum"). On January 17, 2019, Plaintiffsfiled the Memorandum in Opposition to Defendants' Motion for Rule 50 Judgment (Dkt. 140) ("Plaintiffs' Response"). On February 1, 2019, Defendants filed Defendants' Motion in Reply to Plaintiffs' Opposition to Defendants' Motion for Judgment as a Matter of Law, Pursuant to Rule 50 of the Federal Rules of Civil Procedure (Dkt. 142) ("Defendants' Reply"). Oral argument was deemed unnecessary.

Based on the following, Defendants' Rule 50(b) Motion is GRANTED in part, and DENIED in part; the In Limine Motions are DISMISSED as moot.

FACTS²

On July 2, 2012, Defendant Deputy Erie County Sheriff Michael Hoock ("Hoock"), was asked by his supervisor for the Erie County Sheriff civil process division, to serve in regard to a collections action against Plaintiff Raymond Wierzbic ("Raymond"), a subpoena duces tecum ("the subpoena"), on Raymond. TR3 at 54-55, 73-75.³ Hoock had received training with regard to process serving, including the difference between process serving and trespassing, which could entail violating someone's civil rights, TR3 at 56-67, a subject that is covered in the Erie County Sheriff's Department Civil Process Division's manual, parts of which Hoock testified he has read, TR 57-60, including the provision that there is no way to compel a person to be served to identify himself. Id. at 100-01. The subpoena contained two addresses for Raymond, including 5734 Burton Road ("the Burton Road address") which was listed as Raymond's business address, and 49 Willis Road ("the Willis Road premises"), which was listed as Raymond's residential address. TR3 at 76-79. Because the subpoena was returnable on August 3,2012, the subpoena did not have to be served until July 23, 2012, yet Hoock...