Sara Lesende, et al v. Arnold Borrero, et al

Filing

PRECEDENTIAL OPINION Coram: FISHER, SCIRICA and COWEN, Authoring and Circuit Judges. Total Pages: 33. [13-1835, 13-1985]

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 13-1835 and 13-1985
_______________
SARA LESENDE;
VICTOR LESENDE, HER HUSBAND,
v.
POLICE OFFICER ARNOLD BORRERO;
CITY OF NEWARK; NEWARK POLICE DEPARTMENT;
SGT. LILLIAN CARPENTER;
CAPT. RICHARD CUCCOLO;
ACTING CAPT. CRYSTAL BURROUGHS;
CAPT. ALBERT CICALESE;ANTHONY AMBROSE, III,
DIRECTOR OF POLICE; CHIEF OF POLICE IRVING
BRADLEY; JOHN DOE SGT. BADGE NO. 6916
ABC CORPS 1-10; JOHN DOES 1-10
City of Newark,
Appellant in No. 13-1835
Sara Lesende;
Victor Lesende, Her Husband,
Appellants in No. 13-1985
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-06-cv-04967)
District Judge: Hon. Dickinson R. Debevoise
_______________
Argued April 7, 2014
BEFORE: FISHER, SCIRICA AND COWEN, Circuit
Judges
(Filed: May 15, 2014)
John R. Scott, Esq. (Argued)
Hardin, Kundla, McKeon & Poletto
673 Morris Avenue
P.O. Box 730
Springfield, NJ 07081
Counsel for Appellant/Cross-Appellee City of Newark
Robert D. Kobin, Esq. (Argued)
Nusbaum, Stein, Goldstein, Bronstein & Kron
20 Commerce Boulevard
Suite E
Succasunna, NJ 07876
Counsel For Appellees/Cross-Appellants Sara Lesende
and Victor Lesende, Her Husband
_______________
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OPINION
_______________

COWEN, Circuit Judge.
This matter requires application of well-settled legal
doctrines to an unusual set of facts. As detailed below, Sara
Lesende (“Lesende”) and her husband, Victor Lesende,
brought suit against the City of Newark (“the City”) and
Police Officer Arnold Borrero. Following a five-day trial, a
jury found that both Officer Borrero and the City were liable
and awarded Lesende $2,700,000 in compensatory damages.
The City moved for remittitur, and its motion was granted;
the District Court remitted Lesende’s award to $750,000 and
informed her of her right to either accept the remitted award
or reject it and proceed to a second jury trial, limited to the
quantum of her compensatory damages. She chose the latter
option.
A second jury was convened and a new trial held, and
the second jury awarded Lesende $4,000,000 in
compensatory damages. Thereafter, the City moved anew for
remittitur. The District Court did not directly resolve that
motion. Instead, after conferring with counsel for both
Lesende and the City, the court entered a final order, vacating
the second jury’s verdict, vacating the earlier-entered order
that granted the City’s motion for remittitur from the first
jury’s verdict, and reinstating the first jury’s verdict in its
entirety. The instant appeal and cross-appeal followed.
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On appeal, the City attacks the sufficiency of the
evidence presented at trial. It also asks us to consider
whether the District Court erred either by failing to order a
second trial on its liability or instructing the jury to apportion
the above-mentioned damages award between Officer
Borrero and the City. Finally, it asks us to assign error to the
vacatur of the second jury’s verdict and reinstatement of the
first jury’s verdict, contending instead that the District Court
should simply have reduced the second jury’s verdict to
$750,000. Lesende, as evidenced by the cross-appeal, agrees
that the vacatur of the second verdict and reinstatement of the
first verdict constitute legal error. She argues, however, that
error lies in the District Court’s entry of a compensatory
damages award less than that found by the second jury—i.e.,
less than $4,000,000.
For the reasons detailed below, though we see little
merit in the arguments raised in the appeal or cross-appeal,
we will vacate the District Court’s final order and remand
with instruction that the District Court should resolve the
City’s motion for remittitur of the second jury’s verdict.
I.
A.

The Nature of the Lesendes’ Lawsuit

The Lesendes’ lawsuit was predicated on Lesende’s
encounter with Officer Borrero on October 18, 2004. The
District Court described it as follows:

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Mrs. Lesende was pulled over by Mr. Borrero
while she was searching for a parking spot near
her home in Newark[, New Jersey]. At the
time, Mr. Borrero was an officer in the Newark
police department, but he was not on duty and
was not in uniform. For reasons that are
unclear, Mr. Borrero started a loud argument
with Mrs. Lesende, claiming that she had been
driving her car in an unsafe fashion. Believing
that she did not accept his authority, Mr.
Borrero produced his badge and gun. He
opened her car door, climbed on top of Mrs.
Lesende and attacked her with his fists, causing
serious injury to her neck, face and ribs. A
crowd gathered, and multiple witnesses testified
that Mr. Borrero savagely assaulted Mrs.
Lesende. When an elderly bystander attempted
to intervene, Mr. Borrero turned his weapon on
the man and threatened to kill him.
Additional officers arrived at the
intersection, and Mrs. Lesende was handcuffed
and taken to the police station. Once at the
station, Mrs. Lesende was held for the better
part of a day without counsel. During that time
she was repeatedly harassed by Mr. Borrero.
After approximately 12 hours of detention, Mrs.
Lesende was charged with assaulting a police
officer and resisting arrest and released on
$10,000 bail.
In the months following the arrest, Mrs.
Lesende was forced to hire counsel and appear
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in court on multiple occasions to answer the
groundless and frivolous charges. At the same
time, the Newark Police Department engaged in
efforts to intimidate witnesses and discourage
any action against Mr. Borrero. Indeed, Mr.
Lesende testified that he was told by a Newark
police officer that no action would ever be taken
by the city against Mr. Borrero. In addition,
when Mr. Borrero was brought before [an]
Administrative Law Judge on disciplinary
charges, the city “neglected” to present his prior
disciplinary history, permitting him to lie about
the extent of his past misconduct and avoid
termination. Borrero’s extensive discipline file
included 45 prior charges—including multiple
findings that Mr. Borrero had either filed false
assault charges or was “not credible” in his
testimony.
Lesende v. Borrero, No. 06-4967, 2011 WL 6001097, at *1-2
(D.N.J. Nov. 30, 2011). The District Court’s description of
that incident, which substantially comports with the
descriptions appearing in the briefs filed before this Court,
has not been challenged.
The Lesendes brought suit in October of 2006.
Lesende raised claims against Officer Borrero pursuant to 42
U.S.C. § 1983 (“Section 1983”) for use of excessive force,
false arrest and/or imprisonment, and malicious prosecution.
She also raised claims against the City pursuant to Section
1983 and Monell v. Department of Social Services, 436 U.S.
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658 (1978), for negligently training and supervising Officer
Borrero and, separately, for failing to terminate his
employment before October 18, 2004. Her husband raised a
derivative claim against Officer Borrero and the City for loss
of consortium.1
B.

The First Trial

The first trial was held in June of 2011. Both the
Lesendes and the City were represented by counsel. Officer
Borrero was represented during jury selection and during the
beginning of trial, but he thereafter appeared pro se and did
not present a defense. 2

1

Other claims were raised against Officer Borrero, the
City, and various other named and fictitious defendants. For
our purposes, those claims are not relevant.
2

It appears that Officer Borrero was represented by
attorneys retained via the Fraternal Order of Police, that he
was dissatisfied with the services rendered by those attorneys,
and that during trial he sought leave to find and hire other
counsel. (See J.A. 287-91.) It further appears that the District
Court, acting on Officer Borrero’s request, informally
allowed his attorneys to withdraw from representation in this
matter and instructed Officer Borrero that he “ha[d] four days
before the trial resumes,” that it was his responsibility, if he
so chose, to find other counsel, and that the trial would
“proceed no matter what.” (J.A. 290.)
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Following the presentation of evidence, neither Officer
Borrero nor the City moved for judgment as a matter of law
under Federal Rule of Civil Procedure 50(a). Lesende,
however, raised such a motion with respect to each of the
three Section 1983 claims raised against Officer Borrero.
This colloquy, which concerns both Lesende’s motion and the
proposed jury questionnaire (i.e., the verdict sheet), followed:
THE COURT: Well, normally I would
defer a motion for directed verdict and expect
the jury to do the work that I otherwise should
have done. And in normal cases no harm has
been done that results from that, because I can
always reverse it if I think, after further st[u]dy,
it’s appropriate.
In this case there is a major problem.
Should the jury find no, and I conclude there
should be a judgment, then the jury would not
have directed itself to the really critical question
in this case, which is, has Mrs. Lesende proved
that she’s been deprived of her rights as a result
of a custom [or] policy [of] the City of Newark?
So I think I’m going to have to rule on the
directed verdict motion at this time, and . . . I
will direct the jury to vote to check yes on each
of those three questions. [The e]vidence is so
overwhelming. There’s no reasonable person
that could find that there wasn’t a violation of
federal rights here by Officer Borrero. . . .
MR. KOBIN[, COUNSEL FOR THE
LESENDES]: There is a damage assessment.
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THE COURT:
Well, that’s true,
damages will still be an issue.
MR. KOBIN: Obviously I assume that
you’re not directing a verdict on damages
against him.
THE COURT: Oh, no, only on liability.
MS. BENJAMIN[, COUNSEL FOR
THE CITY]: With respect to your ruling, the
question on damages come[s] with respect to
the City of Newark.
THE COURT: What did I do to the City
of Newark?
MS. BENJAMIN: The questions that
you have on damages, you indicate on the
[verdict] sheet if they find yes for 1, 2, 3,[3] or
4,[4] you have an issue of damages, and maybe
this is another issue. If you’re directing them to
answer yes, for 1, 2[,] and 3, it may be I’m
going to [suggest] to the Court that damages
need to be separate. There needs to be []
separate damages for Officer Borrero then, and
one for the City of Newark.
MR. KOBIN: No, your Honor, it’s
punitive damages as to Officer Borrero, which
would still be on the sheet.
3

Questions 1, 2, and 3 concerned Officer Borrero’s

liability.
4

Question 4 concerned the City’s liability.

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THE COURT: That is separate.
MR. KOBIN: Yes.
THE COURT: Th[at] wouldn’t affect
the City.
MR. KOBIN: If you’re directing them to
answer yes for 1, 2, and 3, it’s your position
then that they would only get punitive damages.
What if they find no? Let’s just hypothetically
find no against the City’s liability.
THE COURT: Well, then, that’s it.
MR. KOBIN: Well then -MS. BENJAMIN: You follow what I’m
saying?
MR. KOBIN: They can still award in
this case compensatory damages against Officer
Borrero, couldn’t they?
Am I missing
something?
MS. BENJAMIN:
It needs to be
separate.
MR. KOBIN:
No, it’s still
compensatory.
MS. BENJAMIN: You just ruled that
there’s a directed verdict with respect to the
claims against Officer Borrero.
THE COURT: Right.
MS. BENJAMIN: Let’s say tomorrow
the jury says: City of Newark, you’re not liable
with respect to the damages aspect of it. Then
those damages are going to be against Officer
Borrero.
THE COURT: Right.
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MS. BENJAMIN: I don’t know how it’s
-- how it’s proposed here, clear to them, that
that’s where the damages is [sic] coming from.
THE COURT: Well, the damages, they
probably won’t come from any place. That’s
what the long and short of it is. If the City is
held not liable, then you don’t care anymore.
MS. BENJAMIN: Okay.
(J.A. 569-73.)
The jury retired to deliberate and returned a unanimous
verdict, finding, as it had been directed by the District Court,
that Officer Borrero was liable under each of the three
Section 1983 claims raised against him. The jury also
separately and independently found that the City was liable
for Lesende’s injuries because Officer Borrero’s wrongdoing
was the “result of an official policy or custom of the City.”
(J.A. 917.) It then found that “the amount of compensatory
damages to which Mrs. Lesende [wa]s entitled” was
$2,700,000, that “the amount of compensatory damages to
which Victor Lesende [wa]s entitled” was $75,000, and “the
amount of the punitive damages to which Mrs. Lesende [wa]s
entitled to recover against Officer Borrero” was $850,000.
(Id.)
The City thereafter moved for a new trial or, in the
alternative, for remittitur from the jury’s award of $2,700,000

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in compensatory damages to Lesende.5 It argued that it was
entitled to “a new trial on damages as a matter of law,” but
neither argued that it was entitled to nor suggested that it
sought a new trial on liability. (Suppl. App. 23 (emphasis
added); see also Suppl. App. 20-24; Suppl. App. 26 (arguing
that “a new trial on damages should be granted” (emphasis
added)); Suppl. App. 28-31.) It also argued in support of
remittitur, comparing the facts presented and award granted in
the first trial with the facts presented and awards granted in
other excessive force cases.
On October 7, 2011, the District Court entered an
order (“the 10-7-11 Order”) and accompanying memorandum
opinion, explaining its rationale for denying the City a new
trial. In an apparent overabundance of caution, the court
couched its explanation in terms of both damages and
liability. See Lesende, 2011 WL 4765162, at *4, *8. It
correctly noted the inappropriateness of the City’s request for
a new trial on damages, explaining that “[a] jury award may
not be overturned merely because it is an ‘outlier’ or finds
damages in excess of what the court would have determined
on its own.” Id. at *3. It also found that the City “ha[d]
offered no evidence that the [jury’s] finding of liability was
5

Following review of the City’s motion and
accompanying brief, the District Court concluded that the
City did not challenge the jury’s award of compensatory
damages to Mr. Lesende. See Lesende v. Borrero, No. 064967, 2011 WL 4765162, at *3 n.8 (D.N.J. Oct. 7, 2011).
That conclusion has not been challenged.

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the result of ‘passion or prejudice’” and concluded that any
such argument would be rejected as “entirely assertionary.”
Id. at *4 (citations omitted).
However, the court granted the motion insofar as the
City sought remittitur of the jury’s award of compensatory
damages to Lesende. After examining several awards in
excessive force and malicious prosecution cases,6 the court
concluded that “[d]amages awards are highly fact-specific.
Even among cases involving excessive force and malicious
prosecution, prior verdicts are, at best, imperfect guides as to
the range of reasonably acceptable jury verdicts.” Id. at *6.
Ultimately—based on the limited extent of Lesende’s
physical injuries and both the nature of the City’s wrongdoing
and “[t]he cumulative psychic effect of” its actions—the
District Court concluded that Lesende’s compensatory
damages award was “only barely” excessive and remitted it
from $2,700,000 to $750,000. Id. at *7. In so doing, it was
mindful to inform Lesende that she could choose to either
accept the remitted award or reject it and proceed to a new
trial, which would be limited to determining the quantum of
her compensatory damages.
6

We commend the District Court both for noting that
“[i]t would be particularly inappropriate to order a drastic
remittitur based on the handful of decisions submitted by [the
City]” and “not confin[ing] itself to the self-serving cases in
[the City’s] brief when great volumes of information exist[ed]
on jury awards and settlements in excessive force and
malicious prosecution cases.” Lesende, 2011 WL 4765162, at
*5.
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Lesende moved for reconsideration of the order
granting the City’s motion, and her reconsideration motion
was denied. She then timely rejected the remitted award.
C.

The Second Trial
The second jury trial was held in September of 2012.
Both the Lesendes and the City appeared and were
represented by counsel. Officer Borrero neither appeared nor
participated.7 Following trial, the second jury found that
Lesende was entitled to a $4,000,000 compensatory damages
award.

7

Officer Borrero may have been unaware of the
second trial. On July 24, 2012, a notice appeared in the
District Court’s Case Management/Electronic Case Filing
system (“CM/ECF”) that the second trial would begin on
September 11, 2012. That notice was electronically served to
the parties through CM/ECF pursuant to the District Court’s
Local Civil Rule 5.2 and ECF Policies and Procedures. See
DISTRICT OF NEW JERSEY ELECTRONIC CASE FILING POLICIES
AND PROCEDURES (2012) ¶¶ 6 & 7, available at
http://www.njd.uscourts.gov/sites/njd/files/PoliciesandProced
ures2012.pdf. However, by July 24, 2012, Officer Borrero
was acting pro se and had not registered to receive filed
documents, including notices, electronically. See id. at ¶¶
(1)(a), (4). The record does not reflect that service was ever
made directly on Officer Borrero pursuant to Local Civil Rule
5.1(a) and Federal Rule of Civil Procedure 5(b)(2).
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The City timely moved for remittitur of the second
jury’s award, but it did not request a new trial. In fact, the
City explicitly asked the District Court to “refrain from
ordering a new trial on damages,” arguing instead that “it
would be in the best interests of all parties to permit an appeal
to the Court of Appeals for the Third Circuit for review of
both liability and damages, rather than order a third trial on
damages only.” (Suppl. App. 43.) It also “respectfully
urge[d]” the District Court that “[i]n the event that remittitur
[wa]s granted and [Lesende] reject[ed] the reduced sum . . .
the matter be deemed final for purposes of appeal.” (Suppl.
App. 60.)
At argument on the City’s motion, the District Court
questioned the propriety of the City’s request, and Lesende
objected to the possibility that the District Court might grant a
remittitur from the second jury’s verdict without providing
the opportunity to choose between a remitted award and a
third trial on damages. As an alternative, the District Court
suggested vacating the 10-7-11 Order and reinstating the first
jury’s verdict. This colloquy followed:
THE COURT:
[H]ave you any
suggestion how we could put this in the posture
for appeal other than my entering an order
vacating the original remittitur order? . . . It
doesn’t go to the Third Circuit simply by you[r]
saying so. The Third Circuit has to have
jurisdiction, and I don’t know how it would
have jurisdiction if we’re caught in the midst []
of a remittitur situation.
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MR. KOBIN: As your Honor suggested,
you see the problem that I have with respect to
this motion, if you were to deny this motion and
reinstate the 2.7 million dollar verdict that came
out the first time, we would lose our right to
make arguments with respect to this second
verdict that came out because I’m sure, from
[Mrs.] Lesende’s point, she wants the 4 million
dollar verdict to stand. As [to] the 2.7 million
dollar [verdict], I don’t know how that would
work in terms of everything being appealable
going to the Third Circuit if you were to deny
this motion.
THE COURT: Well, let’s assume that I
vacate the original remittitur order and have a
judgment of two million seven, then each -then you would appeal. . . . But on the other
hand, I don’t see much point in going to another
jury which would probably do the same thing.
MS. BENJAMIN: Right. Because, you
know, if we go to another jury and they give
less than 2.7 million dollars, I’m sure plaintiff
will be filing [her] own motion, given what the
other two verdicts w[ere]. Honestly, Judge, I’m
at a loss because I don’t want to lose -- us to
lose any of our appealable rights with respect to
the first and second trial.
THE COURT: Well, the second trial
becomes academic if we reinstate the first trial
and reinstate that verdict. That might be the
way to go, and then everybody will have an
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appealable decision . . . . I think that maybe the
solution is to vacate the original remittitur,
which puts us back to where we were before
you moved for remittitur the first time. And the
Court of Appeals will see my original thinking
and -- but I’m not confronted with a second jury
which comes in with a 4 million dollar verdict.
And as Mr. Kobin points out, we still rely on
the jury system. In the last analysis, it’s the
jury that has to decide the amount and not the
Judge, so I can’t just enter a judgment in an
amount that I think is reasonable. Well, I think
then that’s what I’ll do.
MS. BENJAMIN: Okay.
THE COURT: So we can take it from
there. I’ll deny the present motion and vacate
the original remittitur order, and enter judgment
for 2 million, seven hundred thousand.
(J.A. 792-94.)
The District Court’s final order followed. That order
vacated the second jury’s verdict, vacated the 10-7-11 Order,
and reinstated the first jury’s verdict in full. This appeal and
cross-appeal followed.
II.
The District Court had jurisdiction over the action
pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), and, to the extent
that the action concerned certain state-law claims that are not
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at issue on appeal, 1367(a). We have jurisdiction under 28
U.S.C. § 1291.
III.
The City first asks us to consider two separate but
related issues: whether (1) the evidence presented at trial was
sufficient to support the jury’s liability finding; and (2) the
District Court erred by failing to order a new trial on liability.
Lesende argues that the City waived both issues on appeal
because it failed to raise the appropriate motions at trial under
Federal Rules of Civil Procedure 50 and 59. We agree.
“‘Generally, failure to raise an issue in the District Court
results in its waiver on appeal.’” Webb v. City of Phila., 562
F.3d 256, 263 (3d Cir. 2009) (quoting Huber v. Taylor, 469
F.3d 67, 74 (3d Cir. 2006)); see also Singleton v. Wulff, 428
U.S. 106, 120 (1976) (“It is the general rule, of course, that a
federal appellate court does not consider an issue not passed
on below.”). “This general rule serves several important
judicial interests,” including “protecting litigants from unfair
surprise, promoting the finality of judgments and conserving
judicial resources, and preventing district courts from being
reversed on grounds that were never urged or argued before
it.” Webb, 562 F.3d at 263 (citations, internal quotation
marks, and alterations omitted).
As noted above, the City did not move for judgment as
a matter of law pursuant to Rule 50(a). Because it did not
raise such a motion, it “wholly waive[d] the right to mount
any post-trial attack on the sufficiency of the evidence.”
Yohannon v. Keene Corp., 924 F.2d 1255, 1262 (3d Cir.
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1991); see also Unitherm Food Sys., Inc. v. Swift-Eckrich,
Inc., 546 U.S. 394, 400-04 (2006). Indeed, “its failure to do
so operates as a waiver with fatal consequences to its
insufficiency of the evidence claim in this appeal.” Greenleaf
v. Garlock, Inc., 174 F.3d 352, 365 (3d Cir. 1999).
The City argues that it preserved its challenge to the
sufficiency of the evidence by timely requesting a new trial
on liability in the post-trial motion filed after the first trial
concluded. We find the City’s argument unavailing. Neither
the City’s notice of motion nor the accompanying brief
indicate that the City sought a new trial on liability. To the
contrary, those papers indicate that the City, insofar as it
sought a new trial, only sought a new trial on the
compensatory damages awarded to Lesende. Accordingly,
they were incapable of preserving the issue for appeal. Cf.
Monteagudo v. Asociación de Empleados del Estado Libre
Asociado de Puerto Rico, 554 F.3d 164, 175-76 (1st Cir.
2009) (rejecting defendant’s contention that certain issues
were preserved by post-trial motion seeking either a new trial
or remittitur where motion papers did not contain any related
“developed argumentation” or relevant citations). “Theories
not raised squarely in the district court cannot be surfaced for
the first time on appeal. . . . [I]f a claim is merely insinuated
rather than actually articulated, that claim ordinarily is
deemed unpreserved for purposes of appellate review.” Id. at
176 (citations, internal quotation marks, and alterations
omitted).
Three findings support our conclusion. First, the
language used in both the notice of motion and accompanying
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brief belie the City’s contention that it sought a new trial on
liability. The notice of motion states only that the City sought
“a new trial pursuant to Fed. R. Civ. P. [sic] 59 as a matter of
law.” (Suppl. App. 16-17.) But the supporting brief makes
clear that the City sought only “a new trial on damages.”
(Suppl. App. 26 (emphasis added); see also Suppl. App. 23
(stating in title of subsection presenting legal argument that
“Defendant City of Newark is Entitled to a New Trial on
Damages as a Matter of Law” (emphasis added)); Suppl.
App. 31 (“If the court is not inclined to grant a new trial on
damages, in the alternative, a remittitur . . . should be
granted.”).)
Second, the City’s “Statement of Facts” does not
address any facts that might have influenced the District
Court’s decision not to grant a new trial on liability. Instead,
those paragraphs merely detail the evidence offered at the
first trial to support Lesende’s prayer for compensatory relief.
They do not and cannot be construed to relate to any City
customs, policies, or practices that would either support or
undermine a finding of liability under Section 1983 and
Monell.
Finally, the City’s argument before the District Court
belies the argument raised on appeal. The brief filed in
support of the City’s motion recognized that the District
Court could grant a new trial as a matter of law on several
bases, including: “the verdict is against the clear weight of the
evidence; damages are excessive; the trial was unfair; [or]
substantial errors were made in the admission or rejection of
evidence or the giving or refusing of instructions.” (Suppl.
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App. 23.) It then set forth the body of law related to
excessive damage awards but failed to set forth any argument
that the first jury’s verdict on liability was against the clear
weight of the evidence. The absence of such argument
strongly indicates that the City did not intend to seek and
never actually sought a new trial on liability from the District
Court.
These same three points cut against the City’s
argument that we may now assign error to the District Court
for not ordering a new trial on liability. The City’s failure to
seek such relief from the District Court results in the waiver
of that issue on appeal. See Singleton, 428 U.S. at 120; Webb,
562 F.3d at 263; see also Willis v. Lepine, 687 F.3d 826, 836
(7th Cir. 2012) (“Merely reciting the Rule 59(a) standard and
then tossing the motion into the court’s lap is not enough.
Failure to adequately present an issue to the district court
waives the issue on appeal.” (citation and internal quotation
marks omitted)).
The City alternatively argues that the issue at hand—
i.e., the propriety of a new trial on its liability—was preserved
by the District Court’s sua sponte consideration and
discussion of that issue in the memorandum opinion that
accompanied the 10-7-11 Order, pursuant to Rule 59(d). The
first and second sentences of Rule 59(d) grant the District
Court power to order a new trial on its own accord under two
circumstances: first, “for any reason that would justify
granting one on a party’s motion” if the court enters its order
within twenty-eight days of the entry of judgment; and
second, “[a]fter giving the parties notice and an opportunity
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to be heard, . . . for a reason not stated in the motion.” FED.
R. CIV. P. 59(d).
It matters not whether the District Court’s discussion
and, ultimately, rejection of the prospect of a new trial on
liability arose under the first or the second sentence of Rule
59(d). As applied here, it is a distinction without difference;
the end result is the same. Because the District Court failed
to enter its memorandum opinion within twenty-eight days of
the entry of judgment,8 it lacked jurisdiction under the first
sentence of Rule 59(d) to consider the propriety of a new trial
on liability on its own accord. See Cortez v. Trans Union,
LLC, 617 F.3d 688, 717 (3d Cir. 2010) (discussing Demeretz
v. Daniels Motor Freight, Inc., 307 F.2d 469 (3d Cir. 1962));
Tarlton v. Exxon, 688 F.2d 973, 978 (5th Cir. 1982); Chi. &
N. W. Ry. Co. v. Britten, 301 F.2d 400, 402-03 (8th Cir.
1962).9 Further, because the record demonstrates that the
District Court neither provided notice to Lesende that it
would consider that issue nor gave her an opportunity to be
heard on it, the District Court lacked power to grant the City
8

Judgment was entered on June 28, 2011. The District
Court entered the memorandum opinion at issue over 100
days later, on October 7, 2011.
9

Demeretz was decided prior to the 2009 amendment
to Rule 59(d), which extended the time for sua sponte action
by the District Court from ten to twenty-eight days. It
nevertheless retains its precedential value, and it accordingly
guides us now.

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relief under the second sentence of Rule 59(d). See Valtrol,
Inc. v. Gen. Connectors Corp., 884 F.2d 149, 155-56 (4th Cir.
1989) (“The notice requirement may not be ironclad, but the
rule clearly contemplates notice in the ordinary case.”
(citations omitted)).
Because the District Court did not comply with the
jurisdictional and procedural aspects of Rule 59(d), it lacked
power to sua sponte consider the propriety of a new trial.
Accordingly, the court’s discussion of that issue did not
preserve it for appeal. This conclusion accords with wellsettled waiver principles and serves the judiciary’s interest in
promoting the finality of judgments and preventing reversal
on grounds that were not argued below.
IV.
The City next argues that the District Court erred
because it failed to instruct the jury to apportion Lesende’s
compensatory damages award between it and Officer Borrero.
It appears from the City’s briefing on this matter that the
alleged error rose in the first trial. In any case, we disagree
that the lack of instruction was legal error.10
Federal Rule of Civil Procedure 51 provides that a
party objecting to either a jury instruction or the lack of an
10

We would reach the same conclusion, albeit for
slightly different reasons, had the City argued that the error
rose in the second trial.

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instruction must raise the objection “on the record, stating
distinctly the matter objected to and the grounds for the
objection.” FED. R. CIV. P. 51(c)(1). Such an objection must
be both cogent and specific to the alleged error. See Palmer
v. Hoffman, 318 U.S. 109, 119 (1943) (“In fairness to the trial
court and to the parties, objections to a [jury] charge must be
sufficiently specific to bring into focus the precise nature of
the alleged error. Where a party might have obtained the
correct charge by specifically calling the attention of the trial
court to the error and where part of the charge was correct, he
may not through a general exception obtain a new trial.”);
Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 89
F.3d 976, 993 (3d Cir. 1996). As a general rule, a party who
fails to either cogently raise a specific objection or state the
grounds of the objection at trial waives related arguments on
appeal. See Waldorf v. Shuta, 896 F.2d 723, 739 (3d Cir.
1990). “The requirement that we consider only those
objections to jury instructions that were raised before the
district court reflects the ‘policy that an appellate court will
not predicate error on an issue upon which the district court
was not provided with an opportunity to rule.’” Id. (quoting
Remington Rand Corp. v. Bus. Sys., Inc., 830 F.2d 1260, 1267
(3d Cir. 1987)).
The City raises two arguments on the lack of an
apportionment instruction that we must now address. It first
argues that it raised a clear objection to the lack of an
apportionment instruction during the first trial. Following
careful review of the record, we disagree. During that trial,
Lesende moved for a directed verdict against Officer Borrero,
and her motion was granted. The City then raised some
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concern over the jury’s verdict sheet, stating its opinion that
“[t]here needs to be [] separate damages for Officer Borrero
then, and one for the City of Newark.” (J.A. 572.) But it
appears inarguable that the City’s objection was not clear and
cogent, that it was not sufficiently specific, and that it failed
to state the grounds upon which it rested.
We find support for this conclusion in both Lesende’s
and the District Court’s respective responses to the City’s
suggestion regarding “separate damages.” That suggestion
prompted only a brief discussion on tangentially related
issues, i.e., liability and punitive damages. Had the City
cogently presented its argument, as it has on appeal, then
logic and common sense dictate that either Lesende or the
District Court, or both, would have recognized and directly
responded to the City’s concern. At the very least, we are
hard-pressed to believe that the District Court would have
responded only by way of non sequitur.
Further, we find analogous support in our precedent.
In Chemical Leaman Tank Lines, supra, we held that an
objection to jury instructions was waived where an objection
was not presented “with sufficient clarity to give the trial
judge notice of a possible error in the instruction.” 89 F.3d at
993. “Not only was the objection difficult to understand
because of its convoluted grammar, but the objection did not
specify the authority upon which it was based. Therefore . . .
[it] failed to comply with Rule 51’s requirement that an
objection ‘stat[e] distinctly . . . the grounds of the objection.’”
Id. (alteration in original) (quoting United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990)).
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It follows from our discussion in Chemical Leaman
Tank Lines that we should here, too, conclude that the
objection at issue was not raised through sufficiently clear
argument. We are mindful that a contrary conclusion might
leave erudite trial judges “to do counsel’s work, creat[ing] the
ossature for the argument, and put[ting] flesh on its bones.”
Zannino, 895 F.2d at 17. Any circumstance that leaves
district judges responsible for the resolution of inarticulate,
incomprehensible, or otherwise unsupported objections is
untenable. As recognized in another context, “Judges are not
expected to be mindreaders. Consequently, a litigant has an
obligation to spell out its arguments squarely and distinctly,
or else forever hold its peace.” Id. (citation and internal
quotation marks omitted).
The City has alternatively asked us to examine the lack
of an apportionment instruction for plain error. Cf. FED. R.
CIV. P. 51(d)(2) (“A court may consider a plain error in the
instructions that has not been preserved . . . if the error affects
substantial rights.”). “Under the plain error standard, we
consider, inter alia, the obviousness of the error, the
significance of the interest involved, and the reputation of
judicial proceedings if the error stands uncorrected.”
Franklin Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336,
340 (3d Cir. 2005) (citations and internal quotation marks
omitted). Such “review is discretionary—it should be
exercised sparingly and should only be invoked with extreme
caution in the civil context.” Id. (citation and internal
quotation marks omitted).

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The City contends that the lack of apportionment
instruction resulted in plain error because the City was held
jointly and severally liable for Lesende’s compensatory
damages under the theory of respondeat superior. If the
City’s liability was premised on that theory, then we could
find some weight in its argument. However, the jury made a
separate finding that the City’s liability stemmed from its own
unconstitutional policy or custom, in accord with Section
1983 and Monell. That finding defeats any inference that the
lack of an apportionment instruction caused the jury to not
consider the City’s liability, separate and apart from that of
Officer Borrero.
Upon our review of various Monell actions, it at least
appears plausible that the City could have been held jointly
and severally liable with Officer Borrero. See DiSorbo v.
Hoy, 343 F.3d 172, 181-82 (2d Cir. 2003) (“[T]he City is at a
minimum jointly and severally liable for compensatory
damages pursuant to its liability under Monell.”); Berry v.
City of Detroit, 25 F.3d 1342, 1348 (6th Cir. 1994) (stating
that “pursuant to the Supreme Court’s holding in Monell,
there is no respondeat superior liability as to municipalities”
but concluding that a City as “master” may be held liable “for
the tort of the servant” if the jury “goes through the ‘custom
or policy’ analysis and ties in a city in that manner”); WhiteRuiz v. City of New York, 983 F. Supp. 365, 390-96 (S.D.N.Y.
1997) (finding that both police officers who violated Section
1983 and city found liable under Monell were jointly and
severally liable); cf. Quinn v. Fresno Cnty. Sheriff, No. 101617, 2012 WL 6561562, at *2 n.3 (E.D. Cal. Dec. 14, 2012)
(concluding that county could not be held jointly and
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severally liable because plaintiff neither alleged nor prevailed
on a Monell claim), recons. granted on other grounds, 2013
WL 898136 (Mar. 8, 2013). It thus appears that the proper
course—that is, the proper jury instruction—was unclear
under current law. In that circumstance, there can be no
finding of plain error. See Collins v. Alco Parking Corp., 448
F.3d 652, 657 (3d Cir. 2006) (citing Franklin Prescriptions,
424 F.3d at 343).11
V.
The most concerning issue raised to this Court is the
issue highlighted by both Lesende and the City: the District
Court’s vacatur of the second jury’s verdict, vacatur of the
10-7-11 Order, and reinstatement of the first jury’s verdict.
We are concerned, in part, because both Lesende and
the City invited the very error that they complain of on
appeal. They have thus invoked our consideration of the
invited error doctrine. “The doctrine of ‘invited error’ refers
to ‘[a]n error that a party cannot complain of on appeal
because the party, through conduct, encouraged or prompted
the trial court to make the erroneous ruling.’” Lima v.
Newark Police Dep’t, 658 F.3d 324, 333 n.2 (3d Cir. 2011)
(quoting BLACK’S LAW DICTIONARY 622 (9th ed. 2009)).
“That is to say, ‘[w]hen a litigant takes an unequivocal
11

Because we are bound by the plain error standard of
review, it is of no consequence that this Court has yet to rule
on the issue, and we do not do so now.

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position at trial, he cannot on appeal assume a contrary
position simply because the decision in retrospect was a
tactical mistake, or perhaps a candid but regretted
concession.’” Id. (alteration in original) (quoting Fleck v.
KDI Sylvan Pools, Inc., 981 F.2d 107, 116-17 (3d Cir. 1992));
see also Morrow v. May, 735 F.3d 639, 644 (7th Cir. 2013)
(equating invited error “with the adage that turnabout is fair
play”).
Before us, the City argues that the District Court
improperly “derive[d] [a] remedy” consisting of “procedural
maneuvering” that “create[d] appellate jurisdiction and . . .
avoid[ed] a fully-warranted third trial.” (City Br. at 2, 6;
accord City Br. at 22-23 (“[T]o avoid a third trial and make
sure that an order was appealable to the jurisdiction of this
Court, the trial court concocted a remedy . . . .”); see also City
Br. at 28 (faulting the District Court for actions that “were not
based upon the merits or for justice, but because the court was
attempting to avoid a third trial and trying to create
jurisdiction for appeal,” and arguing that “[t]hose factors
improperly influenced the trial court’s decision making
process”).) That is a totally inappropriate mischaracterization
of the District Court’s actions. When moving for remittitur of
the second jury’s verdict, the City explicitly asked the District
Court to enter an order reducing the jury’s award of
compensatory damages, “refrain from ordering a new trial on
damages,” and ensure that “the matter be deemed final for
purposes of appeal.” (Suppl. App. 43, 60.)
Lesende, too, participated in the creation of the scheme
of which she now complains. At oral argument on the City’s
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motion, she argued that the City’s request, if granted, would
deprive her of her Seventh Amendment right to a conditional
remittitur—that is, one that afforded her the opportunity to
choose between the remitted award and a new trial on
damages. Cf. Hetzel v. Prince William Cnty., 523 U.S. 208,
211-12 (1998) (per curiam); Cortez, 617 F.3d at 716. She
could and perhaps should have rested on that argument.
Instead, however, she at least tacitly approved the proposed
vacatur of the second verdict and reinstatement of the first
verdict. At oral argument, her attorney conceded that he did
not object to that scheme because he believed that Lesende
would accept a judgment that awarded her $2,700,000 in
compensatory damages.
On these bases, we are disinclined to afford relief to
either the City or Lesende. The City assumed a tactical
stance, which it hoped would reduce the second jury’s award
of $4,000,000 to as little as $750,000—the remitted sum
offered to Lesende after the first trial. In so doing, it
concocted the very procedural scheme of which it now
complains, one that would afford it great benefit while
circumventing Lesende’s Seventh Amendment right to a new
jury trial on damages. Lesende, for her part, assumed a
tactical position that was both complimentary and
contradictory to the City’s position, obviating the need for a
new trial while ensuring that she would receive $2,700,000
rather than some other lesser amount (e.g., $750,000).
Because neither party has clean hands, equity counsels
against granting either of these parties the relief that they seek
on appeal.

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Our inquiry, under normal circumstances, would end
with our finding of invited error.12 But we are concerned by
the vacatur of the 10-7-11 Order insofar as the District Court
stated, without explanation, that the 10-7-11 order was
“improvidently entered.” (J.A. 4.) In the wake created by the
absence of a meaningful explanation, we are constrained to
conclude that the vacatur of the 10-7-11 order was, as invited
by the City and Lesende, prompted by desire to resolve the
City’s motion while contemporaneously avoiding a new trial
on damages and immediately vesting this Court with
appellate jurisdiction.
Those factors, whether considered individually or in
sum, were not a proper basis for revisiting and vacating the
10-7-11 order.
And, ultimately, the District Court’s
consideration of those factors led it to violate the doctrine of
law of the case—“an amorphous concept” that “directs a
court’s discretion” but “does not limit [its] power.” Pepper v.
United States, 131 S. Ct. 1229, 1250 (2011) (citation and
internal quotation marks omitted); accord In re Pharm.
Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir.
2009). Pursuant to that doctrine, “[a] court has the power to
revisit prior decisions of its own or of a coordinate court in
12

Certain recognized exceptions to the invited error
doctrine do not apply here. See, e.g., United States v. Maury,
695 F.3d 227, 257 (3d Cir. 2012) (appellant may argue that its
proposed jury instructions were erroneous in light of
subsequent, retroactively applied appellate rulings), cert.
denied sub nom. Atl. States Cast Iron Pipe Co. v. United
States, 133 S. Ct. 1600 (2013).
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any circumstance.” In re Pharm. Benefit Antitrust Litig., 582
F.3d at 439 (quoting Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 816 (1988)). But “‘courts should be
loathe to do so in the absence of extraordinary circumstances
such as where the initial decision was clearly erroneous and
would make a manifest injustice.’” Id. (quoting Christianson,
486 U.S. at 816); accord Pepper, 131 S. Ct. at 1250; Arizona
v. California, 460 U.S. 605, 618 n.8 (1983).
The District Court did not explain how or why its
earlier decision was improvidently granted, and, on appeal,
we cannot find a basis for concluding that it was clearly
erroneous. To the contrary, we find the District Court’s
earlier decision to be well-rooted in both law and fact. We
are thus forced to conclude that the 10-7-11 Order was not
“improvidently entered,” and, similarly, we are forced to
conclude that the District Court abused its discretion by
revisiting and vacating that order.
VI.
For the forgoing reasons, we will affirm on all issues
other than those concerning the District Court’s final order,
which was entered on February 21, 2013, and, inter alia,
vacated the order entered on October 7, 2011. We will vacate
the District Court’s final order with instructions to reinstate
the second jury’s verdict and resolve the City’s related motion
for remittitur on its merits. If the District Court grants that
motion, then it should be mindful to preserve Lesende’s right
to choose between a remitted award and a third trial on her
compensatory damages. Further, for the reasons discussed in
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footnotes 2 and 7, supra, we suggest that the District Court
take whatever efforts it deems reasonable to ensure that
Officer Borrero is notified of subsequent proceedings.

33