Tuesday, August 14, 2018

When can a federal judge decline jurisdiction?

Federal judges love to exercise control over their docket. But sometimes they move the cases too fast. And sometimes they decline jurisdiction over the case, sending it to state court. In this case, the federal judge kicked the case over to state court right before trial after deciding the plaintiff's attorneys were forum-shopping in filing this wage and hour case in federal court. The Court of Appeals reinstates the case and the plaintiffs are back in federal court.

The case is Catzin v. Thank You & Good Luck, decided on August 18. After litigating the hell out of  the case for a few years, plaintiff's attorneys decided to drop the federal claim brought under the Fair Labor Standards, determining that plaintiffs would get the same relief under the state labor law claims. A week before trial started, the district court, noting the pre-trial filings focused solely on the state law claims and that plaintiffs had abandoned their federal claims, sua sponte decided against exercising supplemental jurisdiction over the state law claims, effectively sending the case over to state court. The district court "concluded that while plaintiffs' 'motives are not entirely clear, it appears to the Court that plaintiffs may have strategically asserted FLSA claims for the purpose of manufacturing [federal] jurisdiction, when they truly intended to litigate only claims under the New York Labor Law.'"

The Court of Appeals (Parker, Hall and Lohier) reverses on several grounds. First, trial courts cannot simply dismiss cases without allowing the parties an opportunity to be heard. You know, due process. That did not happen here. The district court closed the case without any input from the plaintiffs' lawyers. "Sua sponte dismissals without notice and an opportunity to be heard 'deviate from the traditions of the adversarial system' and 'tend to produce the very effect they seek to avoid -- a waste of judicial resources -- by leading to appeals and remands.'" That happens here: a remand. It is not "unmistakably clear" that the district court lacked jurisdiction over the case, and courts are supposed to weigh the factors under the supplemental jurisdiction statute, 28 USC sec. 1367 before declining federal jurisdiction. The Court of Appeals notes it has "upheld the exercise of supplemental jurisdiction even when all federal-law claims were eliminated prior to trial, for example, in long-pending cases presenting no novel issues of state law where 'discovery had been completed, dispositive motions had been submitted, and the case would soon be ready for trial.'" The trial court did not weigh the factors under Section 1367. But the case is more interesting than that, as the trial court also accused plaintiffs' lawyers of screwing around to get the case into federal court.

Plaintiffs may have had good reason to abandon their federal claims in this case because the Second Circuit held in Chowdhury v. Hamza Express Food Corp., 666 Fed. Appx. 59 (2d Cir. 2016), that the state labor law and FLSA liquidated damages provisions are largely identical "and can provide only one overlapping award if liquidated damages for the same conduct." Had the district court given the plaintiffs an opportunity to be heard, "light might have been shed on whether this clarification in the law had impacted the case," that is, "the plaintiffs could have explained whether they were trying to streamline the issues for the jury by not having to prove FLSA elements not required for NYLL liability, under which all their recovery could be obtained."

The Second Circuit also doesn't like how the district court accused plaintiffs of forum shopping. There is no evidence of this and this allegation is undercut by the extensive litigation that took place in this case, like motion practice and significant discovery. "We cannot glean from the record why could would have gone through all this effort if the federal-law claims were simply a ploy to get into federal court." It also bothers the Court of Appeals that the trial court came "perilously close to charging plaintiffs' counsel with unethical behavior, something a court should never do except with the support of a careful inquiry, through analysis, and thoughtfully expressed findings."

Monday, August 13, 2018

It's difficult to reopen a criminal case on the basis of alleged juror misconduct

Have you ever spoken to jurors following the trial? There are few conversations more interesting than post-trial juror interviews, where you can learn what went right and wrong at trial. If you listen carefully, you can improve your trial lawyering by taking the jury's feedback seriously. Sometimes, these conversations yield information that prompts a losing party to ask the court for a new trial on the basis of previously-undisclosed jury misconduct. That happened in this case.

The case is United States v. Baker, decided on August 8. The defendant was convicted of conspiracy to distribute drugs. Five weeks after the jury verdict, Juror No. 10 left a voice mail for defendant's trial counsel, stating that the jury talked about the case throughout trial even though the trial court told the jury not to do so and to keep an open mind. The juror also said one juror said he knew defendant was guilty as soon as he saw him in the courtroom during jury selection. When defendant's counsel asked the trial court for permission to interview the jurors to see if they engaged in misconduct, the trial court denied that application, sending this case to the Court of Appeals, which upholds the trial court's ruling.

Courts do not easily re-open cases based on allegations of juror misconduct. To quote the Federal Rules of Criminal Procedure, litigants need "a damned good reason" for doing this. The allegations in this case gave defendant's lawyer something to work with, as it suggests the jury ignored the trial court's directive not to discuss the case during trial (a standard instruction) and that one juror racially-profiled the defendant as a drug dealer at first sight.

But Juror No. 10 said nothing about the content of the mid-trial discussions. Not every comment among jurors about the case will violate the court's directive, and we don't know if the jury talked about guilt or innocence. Even if premature deliberations did take place, the rules generally prohibit jurors from impeaching their verdicts by testifying about their deliberations. As for the other allegation -- that a juror knew defendant was guilty from the start -- that is not a clear statement about racial stereotypes, distinguishing this case from Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), where the Supreme Court ruled the defendant got an unfair trial on the basis of a juror's racial prejudice. In this case, any inference this was a racial statement is speculation, and we assume the juror in question took seriously the trial court's order at the start of trial the the jurors had to "remain true to their oath," allowing the defendant to start the trial with a "clean slate."

Thursday, August 9, 2018

First Department provides another tutorial on the City Human Rights Law

Having litigated civil rights cases in the state appellate courts under the New York City Human Rights Law, I can tell you the City law is quite different from Title VII and the State Human Rights Law. The City law takes a zero-tolerance approach to employment discrimination, requiring management to properly train its employees to avoid discrimination in the first place, including sexual harassment. This is what the City Council wanted in enacting the law, and this is how the state courts are now interpreting it.

The case is Suri v. Grey Global Group, decided by the Appellate Division First Department on August 3. After rejecting plaintiff's claim under State law, the Appellate Division turns to the City law claim, reinstating the lawsuit after State Supreme Court granted defendant's motion for summary judgment. This result shows the stark contrast between the two laws. Claims that fail under State law can survive under the City law.

What does the evidence show? After plaintiff began working her new job, her boss, Cirullo told her she had beautiful hair. The next day Cirullo said plaintiff had nice boots. A week later, he placed his hands on plaintiff's thigh and squeezed lightly for a few seconds. After plaintiff rebuffed these advances, Cirullo retaliated against her, as follows:

Suri claims that Cirullo's behavior towards her changed. According to Suri he dismissed her work; talked over her; put his hand in her face when she was talking; criticized, belittled and mocked her in front of other employees; cut her out of meetings; withheld resources; and delayed one of her projects. For the last six months of her employment, Cirullo stopped talking to her, even though he sat next to her. She also maintains that because Cirullo mistreated her, other employees followed along believing that it was permissible to disrespect her.

After plaintiff complained to management, the retaliation continued:

Cirullo briefly relented and invited her to a few meetings. However, Cirullo soon resumed cutting her out of meetings and emails. Suri maintains that after she objected, Cirullo gave her the task of setting up the very same meetings to which she was not invited. In May or June 2009, Suri states that she complained to the human resources manager that Cirullo pulled her on and off projects and left her with no resources on one project. According to Suri, the human resources manager responded "that that's how men are and we have to tiptoe around their egos and this is a male-dominated world and we already know we work twice as hard as they do with less pay." As a result of this complaint, Suri explains that the manager requested that Cirullo create a new job description for her. Cirullo did so, but three days after the complaint, he removed her from a project.
The majority notes the City Council in enacting the City law wanted to "meld the broadest vision of social justice with the strongest law enforcement deterrent," and the State Court of Appeals said all provisions of the City law should be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible." This means that "to establish a gender discrimination claim under the City Human Rights Law, a plaintiff need only demonstrate 'by a preponderance of the evidence that she has been treated less well than other employees because of her gender.'" Also, "the federal and state law, limiting actionable sexual harassment to 'severe or pervasive' conduct, was not appropriate for the broader and more remedial City Human Rights Law."

Looking at the case holistically, the First Department says the jury must determine if Cirullo created a hostile work environment and whether he made a sexual overture. As sexual advances are not always explicit, we leave it to the jury to interpret this kind of workplace behavior. "It is a jury's function to determine what happened between Cirullo and Suri, and whether it amounted to gender discrimination. If it credits plaintiff's account of two 'compliments' followed within approximately one week by her supervisor's palm on her thigh, and her description of how her treatment at the workplace deteriorated in the wake of these incidents, then a jury could find that such behavior did not constitute 'petty slights or trivial inconveniences.'"

The First Department also provides guidance on when the burden-shifting framework set forth in Bennett v. Health Management Systems, 92 A.D.3d 29 (1st Dept 2011), applies to a case like this. Bennett applied the McDonnell-Douglas prima-facie case/pretext model to a disparate treatment claim, albeit rejecting the pretext-plus model that the Second Circuit has employed in Title VII cases, which requires the plaintiff to prove evidence the employer lied about the reason for her termination and additional evidence that speaks to discriminatory intent. Under Bennett, the employer's lie is usually enough to win the case.

The dissent in this case wants to apply the Bennett burden-shifting model to this hostile work environment case. But as the majority puts it: "the dissent mistakenly applies the Bennett burden-shifting test to Suri's claim that Cirullo tacitly sought sexual favors from her, and mistreated her after she rebuffed him." However, "Bennett did not involve a claim for differential treatment resulting in a hostile environment. Our . . . cases demonstrate that courts should not automatically apply the Bennett burden-shifting framework to every aspect of a plaintiff's City Human Rights Law claim." This means that while Bennett burden-shifting might be appropriate in a wrongful termination case, it would not apply in a case involving "alleged sexual advances and subsequent demeaning conduct."

Tuesday, August 7, 2018

Circuit sustains large verdict in false arrest case

After the plaintiff was charged with assault and harassment in connection with an altercation with a retired NYC police officer, plaintiff sued the police over his false arrest, winning $225,000 in compensatory damages and $100,000 in punitive damages. The Court of Appeals upholds the verdict.

The case is Walsh v. City of New York, a summary order issued on August 3. False arrest cases are hard to win, as the police enjoy immunity from suit unless they acted in violation of clearly-established law such that no competent officer would have made the arrest. Many false arrest claims never reach trial for that reason, as the probable cause defense is easy for the police to satisfy on a motion for summary judgment.

But not this case. The Second Circuit ruling does not provide details about what happened here, but the district court ruling on the post-trial motion says it all happened on New Year's Eve 2013, when plaintiff was working as a security guard at the Hilton Hotel near Times Square, gatekeeping people out of the hotel who wanted to get closer to Times Square. The off-duty officer, Vadala wanted to get into the hotel and attacked plaintiff, prompting plaintiff to punch Vadala in the face. Vadala resisted "violently." At the police station, plaintiff insisted on pressing charges against Vadala, and when he declined to drop the charges, hew as immediately arrested for assault.

Under normal circumstances, that behavior will land your rear-end in the slammer. But it is not illegal to hit someone if the contact is "privileged," a legal term of art that means there was some justification to do so. Somehow, plaintiff was legally able to hit the off-duty officer, and the arresting officers knew that plaintiff was privileged in doing so. But in this case, the trial court said that arresting plaintiff because he would not drop the charges against Vadala means he was not arrested in good faith. While bad faith arrests are not necessarily illegal under the Fourth Amendment, they are illegal if the police lacked probable cause to start with. Support for this obscure proposition is found in United States v. McDermott, 918 F .2d 319, 325 (2d Cir. 1990). In this case, the arresting officers "failed to consider facts reasonable available to them that were critical to the question of probable cause." What follows is the heart of the trial court's reasoning on this issue:

Roach and Clark [the arresting officers] knew that Walsh had voluntarily come to the precinct specifically to file a complaint against Vadala, and that Vadala had been brought to the precinct in handcuffs, having been arrested for assault. Vadala did claim that he had been assaulted by Walsh, but Roach and Clark knew that Walsh had been working as a security guard, that he was a peace officer, and that his use of force was privileged, made in reaction to Vadala's effort to force his way past Walsh into the Hilton. Significantly, Roach and Clark knew from the outset that Walsh had punched Vadala, but they made no effort to arrest him until he refused to drop his complaint against Vadala. Based on the evidence before it, the jury reasonably found that Roach and Walsh disregarded information known or reasonably available to them, and therefore lacked probable cause to arrest Walsh.

But there's always qualified immunity, right? That immunity is available to police officers who do not violate clearly-established law. We call it arguable probable cause. A lot of officers walk away from the lawsuits against them on this basis. Not these officers. In this case, the jury could have found the arresting officers withheld material information from the prosecutor, and also encouraged the off-duty officer to press charges against plaintiff even though knew the charges were bogus.

Monday, August 6, 2018

Voter fraud case involving fabricated evidence dismissed on a technicality - statute of limitations

We got forgery all around in this election fraud case arising from the Northern District of New York, where the Democratic Election Commissioner was prosecuted in connection with forged absentee ballot signatures. After the Commissioner was acquitted in criminal court (following an earlier mistrial), he went after the special prosecutor, claiming the special prosecutor fabricated evidence against him in violation of the Due Process Clause. The Commissioner's case is now gone-goodbye.

The case is McDonough v. Smith, issued on August 3. McDonough's case fails not because he does not have a case but because it runs afoul of the statute of limitations. McDonough also brought a malicious prosecution claim against the jackals who went after him, but that case also fails in the Court of Appeals because of the three-year statute of limitations.

You have the right under the Constitution not to be deprived of liberty as a result of fabricated evidence. For statute of limitations purposes, your right to sue accrues when you first learn of the fabrication and your liberty is deprived in some way. As it happens, we got a Circuit split here, as the Third, Ninth and Tenth Circuits have held the statute of limitations starts to run only after the criminal proceeding has ended. There might be some logic to that. Can you imagine bringing a fabrication-of-evidence claim against the police while the underlying prosecution is still proceeding against you? With the Second Circuit going the other way on this issue, we are ripe for Supreme Court intervention.

But for now, Second Circuit law is Second Circuit law. Plaintiff's claim fails no matter what the prosecutors did to him because the statute of limitations began to run, at the earliest, when he was indicted and arrested and, at the latest, when the first trial ended in a mistrial. That was more than three years before plaintiff brought this action.

What about the malicious prosecution claim? That fails also, because the prosecutor-defendant in this case has absolute immunity, which prevents any lawsuits for prosecutorial acts that are "intimately associated with the judicial phase of the criminal process" and their role as advocates, which includes initiating prosecutions or trial-work. Since plaintiff sues the prosecutor for work he did in his prosecutorial function, the case is dismissed.

Friday, August 3, 2018

Trial court removes juror from case because he cannot read nor write

A jury of your peers sounds nice, but they are not really your "peers." They are people who swear they can be fair, who do not know any of the parties of witnesses, do not have any felony convictions and can read and write English. In this case, the trial court dismissed a juror mid-trial upon learning the juror was not able to read or write. The criminal defendant appeals from that ruling, claiming it denied him a fair trial. The Court of Appeals does not agree, and the conviction stands.

The case is United States v. Iverson, issued on July 31. I wrote about the search and seizure issue at this link. On that issue, the trial court found, and the Court of Appeals agreed, that the search of defendant's apartment which revealed drugs was legal. Once the case went to trial, during jury selection Prospective Juror 16 said during voir dire that he looks at magazines but that he is not "really a good reader." He also said he can sometimes make out what the stories are about. The government wanted to excuse Number 16 from the trial because he fell asleep during jury selection, but the trial court upheld defendant's Batson objection and said if the juror fell asleep during trial that would be "easily corrected" and that while the juror was uneducated, "he seemed to be bright . . . and he impressed me as being able to grasp the facts." (A Batson challenge alleges the government is trying to eliminate a juror because of his race).

Once the trial started, however, the court's jury administrator told the judge that Number 16 may not have completed his juror questionnaire. When the judge questioned the juror about this, he said his wife filled out the form because he was unable to do it. Once the judge determined the juror cannot read or write, he excused Number 16.

The Court of Appeals notes that federal jurors must be able to understand the English language sufficient to complete the questionnaire, which means that an illiterate juror cannot be empaneled. The problem here is that the trial court questioned the juror outside the presence of the parties, and there is no indication the parties consented to the court's decision to immediately dismiss the juror following the ex parte conversation about his literacy. Despite that procedural error, defendant does not get a new trial. The Court of Appeals (Kearse, Calabresi and Livingston) applies the harmless error rule, as the trial court properly found the juror could neither read nor write and that the information this juror provided to the court on this issue compelled the court to dismiss the juror from the trial.

Thursday, August 2, 2018

"Come on in, officers," leads to drug arrest

Here's a convoluted Fourth Amendment case in which the police found drugs in this guy's apartment after they showed up in connection with the defendant's report that there was a prowler in the area. The police found the drugs by accident, and defendant got nailed.

The case is United States v. Iverson, decided on July 31. This case took place in Western New York. Defendant invited a nice girl into his apartment; he had met her at a liquor store. We all want love, right? But the girl behaved suspiciously, and defendant saw a guy lurking outside the building. After she abruptly left the apartment, believing the girl was a setting up defendant for a robbery, he called the police, who were looking for the prowler who had allegedly robbed a pizza parlor. The police show up at defendant's place after defendant invited them in. Hey, we all want houseguests, right? The lawmen were not there to arrest or search defendant, but his door was open when they were looking for the prowler. The police dog, who had tagged along looking for the prowler's scent, smelled the defendant's drugs, and after some give and take in which the police promised defendant would not get into too much trouble, defendant let the police see the drugs, which got him arrested.

Defendant wants the drugs suppressed as a the product of an unlawful search. But the trial court found, and the Court of Appeals agrees, that the search was not illegal. Defendant gave the police consent to enter his apartment, even if that consent was implied. There is also no evidence the police entered the apartment for purposes of searching defendant; they were looking for the prowler. While defendant claims the police dog's sniffing was an unlawful search, the Supreme Court has already ruled that a "canine sniff" is not a search under the Fourth Amendment. Since the police were lawfully in defendant's apartment and no one commanded the dog to look for drugs, the search was not reasonable.

What do we learn from this? You do not have the let the police into your apartment without a warrant. If you do -- and I know it is hard to say know when the police arrive -- there is a risk the police will find your stash, your gun or whatever else you have closeted away. A police dog can sniff anything out.