Kirkland v. Cablevision Systems
Filing
226
MEMORANDUM & ORDER denying 183 Motion for New Trial; denying 186 Motion for New Trial; denying 188 Motion for New Trial; denying as moot 219 Motion for Leave to Appeal in forma pauperis. For the foregoing reasons, Mr. Kirkland's mo tions for a new trial [dkt. nos. 183, 186, 188] are DENIED. The Clerk of the Court shall (1) close the open motions, (2) deny any other open motions as moot, and (3) inform the Court of Appeals that these motions--which form the basis for its order staying Mr. Kirkland's appeal, see Kirkland v. Cablevision Sys., No. 19-1259 (2d Cir. May 10, 2019)--have been resolved. SO ORDERED. (Signed by Judge Loretta A. Preska on 12/11/2020) (va)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GARRY KIRKLAND,
Plaintiff,
No. 09-CV-10235 (LAP)
-against-
MEMORANDUM & ORDER
CABLEVISION SYSTEMS,
Defendant.
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court are pro se Plaintiff Garry Kirkland’s
three separate motions seeking a new trial. 1
Defendant
Cablevision Systems (“Cablevision”) opposes the motions. 2
For
the reasons below, Mr. Kirkland’s motions are DENIED.
I.
Background
The Court assumes the parties’ familiarity with the facts
of the case, and it will summarize only the facts relevant to
the instant motions here.
In late 2009, Plaintiff sued
(See Plaintiff’s Motion for New Trial (“Pl. First Br.”),
dated Feb. 1, 2017 [dkt. no. 183]; Plaintiff’s Motion for a New
Trial (“Pl. Second Br.”), dated Feb. 2, 2017 [dkt. no. 186];
Plaintiff’s Motion for a New Trial (“Pl. Third Br.”), dated Feb.
6, 2017 [dkt. no. 188]; see also Affidavit of Jerry Kirkland
(“J. Kirkland Aff.”), dated Jan. 31, 2017 [dkt. no 184];
Affidavit of Garry Kirkland, dated Feb. 2, 2017 [dkt. no 187];
Affidavit of Garry Kirkland, dated Feb. 4, 2017 [dkt. no 189].)
Plaintiff’s Reply to Defendant’s Response to Motion for a New
Trial (“Pl. Reply”), dated Mar. 23, 2017 [dkt. no. 212].)
1
(See Defendant’s Opposition to Plaintiff’s Rule 59 Motions
Requesting a New Trial, dated Mar. 3, 2017 [dkt. no. 207]; see
also Declaration of Terry D. Johnson, dated Mar. 3, 2017 [dkt.
no. 208].)
2
1
Cablevision, asserting claims of race and color discrimination
and retaliation under Title VII of the Civil Rights Act of 1964,
the New York State Human Rights Law, and the New York City Human
Rights Law.
(See Amended Complaint, dated Sept. 16, 2010 [dkt.
no. 17] at 1-3.)
January 27, 2017.
The Court held a jury trial from January 24 to
Plaintiff offered testimony from sixteen
witnesses, many of whom were current or former Cablevision
employees. 3
Cablevision’s case focused on testimony taken from
six of those same employees. 4
of exhibits into evidence.
Both sides also introduced dozens
Ultimately, the jury returned a
verdict for Cablevision on all Plaintiff’s claims.
(See Jury
Verdict Form, dated Jan. 27, 2017 [dkt. no. 182].)
Afterward, Plaintiff filed three motions seeking a new
trial under Federal Rule of Civil Procedure 59.
Plaintiff’s
motions assert the following grounds for relief: (1) the jury’s
verdict was against the weight of the evidence, (see Pl. Second
Plaintiff took testimony from the following witnesses: (1)
Krista Duncan, (2) Antoine Grace, (3) Charlene Goldsmith, (4)
Ronald Duncan, (5) Kathryn Nivins, (6) Michael Kaplan, (7)
Sandra Wicklund, (8) Laura Cavazzi, (9) Richard Belden, (10)
Zaccariah Rolle, (11) Marcus Bennett, (12) Lynn Donnelly, (13)
Robert Cockerill, (14) Bernard Isaac Fennell, (15) Susan
Crickmore, and (16) the Plaintiff himself. (See generally Trial
Transcript (“Trial Tr.”), dated Feb. 27, 2017 [dkt. nos. 197,
199, 201, 203].)
3
Those witnesses included Ms. Donnelly, Mr. Fennell, Ms.
Crickmore, Mr. Rolle, Mr. Belden, and Mr. Cockerill. (See id.
140:1-225:18, 236:20-347:20, 356:10-400:16, 402:17-504:25.)
4
2
Br. at 2-6; Pl. Reply at 3-20); (2) the Court committed several
errors when setting the trial date and when determining the
order of argument and witnesses, (see Pl. First Br. at 2-5; Pl.
Third Br. at 2-3; Pl. Reply at 20-25); (3) the Court improperly
instructed the jury on pretext, (see Pl. Second Br. at 6; Pl.
Reply at 25-27); and (4) one of the jurors allegedly engaged in
misconduct, (see Pl. First Br. at 1-2; Pl. Reply at 28-29).
The
Court will address each in turn.
II.
Discussion
A “court may, on motion, grant a new trial on all or some
of the issues” for any party.
FED. R. CIV. P. 59(a)(1)(A).
“Rule
59(a) motions are committed to the sound discretion of the
[C]ourt.”
Ojeda v. Metro. Transp. Auth., No. 16 Civ. 00003
(JCM), 2020 WL 4497843, at *6 (S.D.N.Y. Aug. 3, 2020) (quotation
marks omitted).
Because Mr. Kirkland is proceeding pro se, the
Court “liberally construes” his moving papers “to raise the
strongest arguments they suggest.”
McLeod v. Jewish Guild for
the Blind, 864 F.3d 154, 156 (2d Cir. 2017).
“A motion for a new trial ordinarily should not be granted
unless the trial court is convinced that the jury has reached a
seriously erroneous result or that the verdict is a miscarriage
of justice.”
1998).
Atkins v. N.Y.C., 143 F.3d 100, 102 (2d Cir.
It is not enough that the trial judge disagrees with the
jury’s verdict.
See Brewster v. City of Poughkeepsie, 447 F.
3
Supp. 2d 342, 347 (S.D.N.Y. 2006) (citing Mallis v. Bankers
Trust Co., 717 F.2d 683, 691 (2d Cir. 1983)).
jury’s verdict should rarely be disturbed.”
In fact, “a
Farrior v.
Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002) (per
curiam) (quotation marks and ellipsis omitted).
“It is well-
settled that Rule 59 is not a vehicle for relitigating old
issues, presenting the case under new theories, securing a
rehearing on the merits, or otherwise taking a second bite at
the apple.”
Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d
Cir. 1998) (quotation marks omitted).
a. Verdict Against the Weight of the Evidence
Plaintiff first argues that the jury’s verdict is against
the weight of the evidence.
Reply at 3-20.)
(See Pl. Second Br. at 2-6; Pl.
To support that position, Plaintiff maintains
that he offered evidence showing that: (1) Cablevision’s written
request to terminate plaintiff’s employment “was falsified and
backdated,” (Pl. Second Br. at 3); (2) two of Plaintiff’s direct
reports never complained to Cablevision about his performance,
(see id.); (3) Plaintiff responded to a “MRSA scare” in one of
his stores in less than forty-eight hours, (see id. at 3-4); (4)
Cablevision’s witnesses were not credible because they testified
falsely and forgot about material facts, (see id. at 4-5); and
(5) Plaintiff’s former manager, Robert Cockerill, had a history
of discrimination in hiring, (see id. at 5-6).
4
“On new trial motions, the trial judge may weigh the
evidence and the credibility of witnesses and need not view the
evidence in the light most favorable to the verdict winner.”
Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir.
2012).
“A new trial may be granted, therefore, when the jury’s
verdict is against the weight of the evidence.”
DLC Mgmt. Corp.
v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998).
But
“trial judges must exercise their ability to weigh credibility
with caution and great restraint,” and “a judge . . . may not
freely substitute his or her assessment of the credibility of
witnesses for that of the jury simply because the judge
disagrees with the jury.”
Raedle, 670 F.3d at 418.
In that
vein, “the grant of a new trial on weight of the evidence
grounds should be reserved for those occasions where the jury’s
verdict was egregious.”
Dunlap-McCuller v. Riese Org., 980 F.2d
153, 158 (2d Cir. 1992).
This is not such a case.
Cablevision submitted plentiful
evidence supporting the verdict.
For example, Cablevision’s
witnesses testified regarding, inter alia, (1) Plaintiff’s
performance issues and incidents of inappropriate behavior, (2)
his failure to improve his performance despite counseling from
his managers and human resources, and (3) the events in October
5
2008 that ultimately led to his termination. 5
Those witnesses
also reviewed numerous documents consistent with the events
about which they testified.
If credited, that evidence
certainly supports a verdict in Cablevision’s favor.
Plaintiff’s argument boils down essentially to the
following:
He believes his evidence to be more compelling than
Cablevision’s competing evidence.
Ultimately, the weight to
assign that evidence turned, in no small part, on the
credibility of the various witnesses.
It was the jury’s
prerogative to sort out which witnesses were credible; indeed
they “are presumed to be fitted for [that task] by their natural
intelligence and their practical knowledge.”
N.Y., 414 F.3d 381, 397 (2d Cir. 2005).
Nimely v. City of
Based on the complete
defense verdict, the jury plainly found Cablevision’s evidence
to be more credible.
Because that verdict “depended on
assessment of the credibility of the witnesses, it is proper for
the [C]ourt to refrain from setting aside the verdict and
granting a new trial.” 6
(See, e.g., Trial Tr. at 150:19-183:21 (testimony of Mr.
Belden); id. at 202:16-216:17 (testimony of Mr. Rolle); id. at
260:8-293:11 (testimony of Ms. Donnelly); id. at 378:18-387:15
(testimony of Mr Cockerill); id. at 436:25-466:12 (testimony of
Mr. Fennell); id. at 497:17-501:16 (testimony of Ms.
Crickmore).)
5
Watkins v. N.Y.C. Transit Auth., No. 16 CIV. 4161 (ER),
2020 WL 1888839, at *7 (S.D.N.Y. Apr. 16, 2020) (quoting
(continued on following page)
6
6
b. The Order of Argument and Witnesses
Second, Plaintiff suggests that the Court committed for
four procedural errors.
(See Pl. First Br. at 2-5; Pl. Third
Br. at 2-3; Pl. Reply at 20-25).
First, Plaintiff was denied a
fair opportunity to present his case-in-chief because the Court
permitted Cablevision to “present its affirmative defenses in
conjunction and simultaneously with the Plaintiff’s initial
presentation of evidence.”
(Pl. First Br. at 3).
Second,
Plaintiff was never given the chance to present a rebuttal case.
(See id. at 4-5).
Third, Plaintiff was robbed of the ability to
present his case in the best light because the Court allowed
Cablevision to present its closing arguments first.
Third Br. at 2-3.)
(See Pl.
And fourth, the Court erroneously moved the
trial date back by one day.
(See id. at 3.)
Plaintiff
maintains that these “errors” entitle him to a new trial, even
though he failed to object contemporaneously to any of them.
Plaintiff’s first argument regarding his case-in-chief is
meritless.
During Plaintiff’s case-in-chief, the Court
permitted Cablevision--having received no objection from Mr.
Kirkland--to question witnesses it also planned to call about
facts relevant to Cablevision’s affirmative defenses.
That was
(continued from previous page)
Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992),
abrogated on other grounds as noted in Yung v. Lee, 432 F.3d
142, 147-48 (2d Cir. 2005)).
7
a valid exercise of the Court’s power to exert “reasonable
control over the mode and order of examining witnesses and
presenting evidence.” 7
That procedure allowed those witnesses to
take the stand only once--subject to cross-examination--instead
of mandating that Cablevision re-call the same witnesses later.
Taking testimony in that manner conserved court resources
without undermining either party’s ability to tease out the
truth.
See FED. R. EVID. 611(a)(1)-(2).
Plaintiff’s suggestion regarding his rebuttal case fares no
better.
Although Mr. Kirkland is correct that a plaintiff may,
in certain circumstances, call rebuttal witnesses, he offers no
further discussion on the matter.
Plaintiff does not identify
any witness whom he wished to call that the Court did not permit
to testify, and he provides no information regarding what parts
of Cablevision’s case he had hoped to rebut with additional
witness testimony.
Although the Court must liberally construe
his brief, see McLeod, 864 F.3d at 156, Mr. Kirkland must still
make some argument on the topic.
The Court cannot, and will
not, fashion an argument for him from scratch.
FED. R. EVID. 611(a); cf. Buchwald v. Renco Grp., Inc., No.
13-CV-7948 (AJN), 2014 WL 4207113, at *1 (S.D.N.Y. Aug. 25,
2014) (“To prevent unfairness and avoid wasting time, numerous
courts have held that a party may not limit a witness that the
party intends to call at trial from testifying only during its
own case in chief.”).
7
8
Nor does Plaintiff advance the ball with his theory that
the Court improperly allowed Cablevision to deliver its closing
arguments first.
In this district, it is entirely typical for
the plaintiff in a civil case to give his opening arguments
first and his closing arguments last.
See, e.g., Am. Home
Assur. Co. v. Merck & Co., 462 F. Supp. 2d 435, 442 (S.D.N.Y.
2006).
Moreover, the Court observes that, if anything,
Plaintiff’s delivering his summation after Cablevision’s was an
advantage.
Plaintiff was in no way prejudiced by getting to
have the “last word” before the jury or by the opportunity to
respond to specific points in Cablevision’s closing.
Finally, Plaintiff’s contention regarding the Court’s
adjourning the trial date from January 23 to January 24, 2017 is
unavailing.
District courts “enjoy an inherent authority to
manage their dockets.”
(2d Cir. 2015).
Katz v. Cellco P’ship, 794 F.3d 341, 346
Plaintiff offers no evidence--beyond his
conclusory allegation of ex parte communications--that the
adjournment was improper, and he identifies no adverse
consequences that he suffered from the one-day delay.
In short, for the reasons above, none of the “errors”
Plaintiff identifies causes the Court to conclude “that the
verdict [wa]s a miscarriage of justice.”
102.
Atkins, 143 F.3d at
Therefore, the Court will not disturb the jury’s verdict
on those grounds.
9
c. The Jury Instructions
Next, Plaintiff asserts that the Court improperly
instructed the jury on pretext.
Reply at 25-27.)
(See Pl. Second Br. at 6; Pl.
Plaintiff avers that the Court’s instructions
were incomplete because the Court did not include examples of
hypothetical pretextual actions.
(See Pl. Second Br. at 6.)
Plaintiff’s proposed charge included fourteen such examples.
(See Plaintiff’s Proposed Jury Instructions, dated Jan. 17, 2017
[dkt. no. 158] at 19-20.)
Plaintiff posits that “[a] more
complete Jury Instruction would have resulted in a very
different verdict in this action” and Plaintiff maintains that
the Court’s “expectation that a lay jury could decipher the
Legal concept of Pretext amounts to reversible error.”
(Pl.
Second Br. at 6.)
“An erroneous jury instruction requires a new trial unless
the error is harmless.”
(2d Cir. 2017).
Callahan v. Wilson, 863 F.3d 144, 148
“A jury instruction is erroneous if it misleads
the jury as to the correct legal standard or does not adequately
inform the jury on the law.”
F.3d 128, 134 (2d Cir. 2013).
Velez v. City of New York, 730
“An omission, or an incomplete
instruction, is less likely to be prejudicial than a
misstatement of the law.”
Lore v. City of Syracuse, 670 F.3d
127, 156 (2d Cir. 2012).
A new trial is not necessary “if the
instructions, read as a whole, presented the issues to the jury
10
in a fair and evenhanded manner.”
Turley v. ISG Lackawanna,
Inc., 774 F.3d 140, 153 (2d Cir. 2014) (alteration omitted).
Importantly, Plaintiff asserts only that the Court’s
instructions were incomplete; he does not allege that the Court
misstated the law.
(See Pl. Second Br. at 6.)
At the same
time, Plaintiff points to no authority holding that a court’s
failure to use hypothetical examples in its charge is erroneous,
let alone prejudicial.
authority.
Neither has the Court located such
Accordingly, the Court will not order a new trial on
that basis. 8
d. Juror Misconduct
Finally, Plaintiff asserts that misconduct on the part of a
juror mandates a new trial.
Reply at 28-29.)
(See Pl. First Br. at 1-2; Pl.
Specifically, Plaintiff identifies two alleged
instances of misconduct.
First, in response to the Court’s
informing the jury of upcoming proceedings, and before the jury
For the first time in his reply brief, Plaintiff asserts
that the Court also erred by not instructing the jury on the
issue of punitive damages. (See Pl. Reply at 25-27.) On the
final day of trial and after hearing all the evidence, however,
the Court granted Defendant’s Rule 50 motion as to punitive
damages because “no reasonable jury on this record could find
malice or reckless indifference” or “any positive element of
consciousness of wrongdoing.” (Trial Tr. at 596:18-22.)
Because the Court granted judgment as a matter of law, Plaintiff
was not entitled to a jury instruction. See, e.g., City of N.Y.
v. Pullman, 662 F.2d 910, 917 (2d Cir. 1981) (holding that
district court’s refusal to give requested damages instruction
was appropriate because the proposed damages remedy was not
“supported by evidence of any probative value”).
8
11
was charged, one juror purportedly stated “[w]e’ve already
decided all of that.”
(Pl. First Br. at 1.)
And second, as
Plaintiff stepped down from the witness stand, the same juror
allegedly “made a gesture indicating the Plaintiff was crazy in
open Court and in plain sight of other jurors.”
(Id.)
Plaintiff “is entitled to a fair trial but not a perfect
one, for there are no perfect trials.”
McDonough Power Equip.,
Inc. v. Greenwood, 464 U.S. 548, 553 (1984) (quotation marks
omitted).
With that in mind, courts are understandably hesitant
to crack open the jury box post-verdict, because to do so
undermines finality. 9
“Accordingly, probing jurors for potential
instances of bias, misconduct or extraneous influences after
they have reached a verdict is justified only when reasonable
grounds for investigation exist, in other words, where there is
clear, strong, substantial and incontrovertible evidence that a
specific, nonspeculative impropriety has occurred which could
have prejudiced the trial.”
United States v. Stewart, 433 F.3d
273, 302–03 (2d Cir. 2006) (quotation marks omitted).
See Cocconi v. Pierre Hotel, 146 F. Supp. 2d 427, 429
(S.D.N.Y. 2001) (“Courts are ordinarily reluctant . . . to probe
a jury’s deliberative process to examine the basis for a jury’s
verdict.”); see also United States v. Feng Ling Liu, 69 F. Supp.
3d 374, 381 (S.D.N.Y. 2014) (“Post-trial jury scrutiny is
disfavored because of its potential to undermine full and frank
discussion in the jury room, jurors’ willingness to return an
unpopular verdict, and the community’s trust in a system that
relies on the decisions of laypeople.” (quotation marks
omitted)).
9
12
Plaintiff simply has not met that standard.
To support his
allegations of misconduct, Plaintiff offers a single affidavit
from his brother, Jerry Kirkland.
7.)
(See J. Kirkland Aff. ¶¶ 4-
But that affidavit “amounts to nothing more than self-
serving hearsay, which is not clear and strong evidence to
support hauling the jurors back here to probe jury deliberations
in search of evidence sufficient to set aside the verdict.”
Stowe v. Nat’l R.R. Passenger Corp., 793 F. Supp. 2d 549, 575
(E.D.N.Y. 2011); see also Severino v. Am. Airlines, No. 07-CV941 (HB), 2009 WL 1810014, at *3 (S.D.N.Y. June 24, 2009)
(similar).
That conclusion is reinforced by the fact that
Plaintiff did not bring these alleged behaviors to the Court’s
attention during the trial, even though his brother’s affidavit
suggests that Plaintiff was informed of the incidents before the
case was submitted to the jury. 10
Consequently, the Court will
not award a new trial based on the juror’s alleged actions.
III. Conclusion
For the foregoing reasons, Mr. Kirkland’s motions for a new
trial [dkt. nos. 183, 186, 188] are DENIED.
The Clerk of the
Court shall (1) close the open motions, (2) deny any other open
motions as moot, and (3) inform the Court of Appeals that these
motions--which form the basis for its order staying Mr.
(See, e.g., J. Kirkland Aff. ¶ 6 (“On the ride home I
advised my brother Garry Kirkland . . . of her Statement.”).)
10
13
Kirkland’s appeal, see Kirkland v. Cablevision Sys., No. 19-1259
(2d Cir. May 10, 2019)--have been resolved.
SO ORDERED.
Dated:
December 11, 2020
New York, New York
__________________________________
LORETTA A. PRESKA
Senior United States District Judge
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