Schoolcraft v. The City Of New York et al

Filing 452

BRIEF in Reply in Further Support of Motion for Bifurcation. Document filed by Christopher Broschart(Tax Id. 915354 in his official capacity), Timothy Caughey(Tax Id. 885374 Individually), Kurt Duncan(Shield No. 2483, Individually), William Gough(Tax Id. 919124, Individually), Elise Hanlon(in her official capacity as a lieutenant with the New York City Fire Department), Shantel James(Shield No. 3004 in his official capacity), Theodore Lauterborn(Tax Id. 897840 in his official capacity), Michael Marino, Gerald Nelson(Assistant Chief Patrol Borough Brooklyn North, Tax Id. 912370 in his official capacity), Frederick Sawyer(Shield No. 2576 in his official capacity), The City Of New York.(Scheiner, Alan)

10-CV-6005 (RWS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ADRIAN SCHOOLCRAFT,
Plaintiff,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.

REPLY MEMORANDUM OF LAW IN FURTHER
SUPPORT OF THE CITY DEFENDANTS’ MOTION
FOR BIFURCATION

ZACHARY W. CARTER
Corporation Counsel of the City of New York
Attorney for Defendants
100 Church Street
New York, N.Y. 10007
Of Counsel:
Alan Scheiner
Tel: [phone]
Cheryl Shammas
Tel: [phone]
Kavin Thadani
Tel: [phone]
Matter #: 2010-033074

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... iii
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT .................................................................................................................................. 1
THE COURT SHOULD BIFURCATE THE PLAINTIFF’S MONELL
CLAIM FROM THE TRIAL OF THE MAIN ISSUES IN THE CASE TO
AVOID SUBSTANTIAL PREJUDICE TO THE DEFENDANTS AND
UNDUE BURDEN AND EXPENSE ............................................................................................ 1
A. Bifurcation is warranted so that the jury can
first determine whether a constitutional
violation occurred separately from the question
of whether any constitutional violation found
was caused by a municipal policy. ...................................................... 2
B. Bifurcation is warranted because there will be
substantial prejudice to the City defendants if
the plaintiff’s proffered Monell evidence is
considered on the main issues in the case; there
is little or no prejudice to plaintiff from
bifurcation; and there are potential cost-savings
from a bifurcated trial since trial on all or part
of the Monell claim may never be needed. .......................................... 3
1. There is no presumption against
bifurcation, as to which the Court has broad
discretion ....................................................................................... 3
2. The defense of qualified immunity does not
change the Monell bifurcation analysis
because the prejudice to defendants and
potential for judicial economy remain even
when qualified immunity is present .............................................. 5
3. The City defendants would be substantially
prejudiced from a non-bifurcated trial, but
plaintiff would suffer no prejudice from
bifurcation ..................................................................................... 6
4. If the Court finds a risk of duplicative
evidence it could have the Monell trial with

Page
the same jury, immediately following the
main trial........................................................................................ 9
CONCLUSION ............................................................................................................................. 10

ii

TABLE OF AUTHORITIES
Cases

Pages

Amato v. City of Saratoga Springs,
170 F.3d 311 (2d Cir. 1999)............................................................................................... 3, 4, 9
Askins v. Doe,
727 F.3d 248 (2d Cir. 2013)....................................................................................................... 2
Bombard v. Volp,
44 F. Supp. 3d 514 (D. Vt. 2014)............................................................................................... 4
Carson v. Syracuse,
1993 U.S. Dist. LEXIS 9508 (N.D.N.Y June 30, 1993) ............................................................ 9
City of Los Angeles v. Heller,
475 U.S. 796 (1986) ................................................................................................................... 2
Daniels v. Loizzo,
178 F.R.D. 46 (S.D.N.Y. 1998) ................................................................................................. 9
Ismail v. Cohen,
706 F. Supp. 243 (S.D.N.Y.1989),
aff’d, 899 F.2d 183 (2d Cir. 1990))............................................................................................ 3
Jeanty v. County of Orange,
379 F. Supp. 2d 533 (S.D.N.Y. 2005).................................................................................... 4, 6
Lewis v. Triborough Bridge & Tunnel Auth.,
2000 U.S. Dist. LEXIS 4982 (S.D.N.Y. Apr. 19, 2000)............................................................ 4
Martinez v. Robinson,
2002 U.S. Dist. LEXIS 4454 (S.D.N.Y. Mar. 19, 2002) ........................................................... 4
McCoy v. City of New York,
2008 U.S. Dist. LEXIS 62567 (E.D.N.Y. Aug. 13, 2008) ......................................................... 6
Miller v. Am. Bonding Co.,
257 U.S. 304 (1921) ................................................................................................................... 4
Mineo v. City of New York,
2013 U.S. Dist. LEXIS 46953, 2013 WL 1334322 (E.D.N.Y. Mar. 29, 2013) ..................... 4, 9
Monell v. Dep’t of Social Services,
436 U.S. 658 (1978) ............................................................................. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10
Reynolds v. Giuliani,
506 F. 3d 183 (2d Cir. 2007)...................................................................................................... 9
iii

Cases

Pages

Ricciuti v. New York City Transit Authority,
796 F. Supp. 84 (S.D.N.Y.1992) ............................................................................................... 3
Santiago v. New York,
1992 U.S. Dist. LEXIS 6731 (S.D.N.Y. May 15, 1992)............................................................ 7
Schoolcraft v. City of New York,
2012 U.S. Dist. LEXIS 128557 (S.D.N.Y. Sept. 7, 2012) ..................................................... 7, 8
Schoolcraft v. City of New York,
2015 U.S. Dist. LEXIS 58831 (S.D.N.Y. May 5, 2015)............................................................ 7
Williams v. Blvd. Lines, Inc.,
2013 U.S. Dist. LEXIS 149707 (S.D.N.Y. Sept. 30, 2013) ................................................... 3, 6
Statutes
42 U.S.C. § 1983 ............................................................................................................................. 4
Fed. R. Civ. P. 42 ............................................................................................................................ 5
Fed. R. Civ. P. 42(b) ........................................................................................................... 1, 3, 4, 5

iv

PRELIMINARY STATEMENT
City defendants respectfully submit this Reply memorandum of law in further support of
their motion for bifurcation of the plaintiff’s claim against the City of New York under Monell v.
Dep’t of Social Services, 436 U.S. 658 (1978) for the purposes of trial, pursuant to Fed. R. Civ.
P. 42(b).
ARGUMENT
THE COURT SHOULD BIFURCATE THE PLAINTIFF’S
MONELL CLAIM FROM THE TRIAL OF THE MAIN
ISSUES IN THE CASE TO AVOID SUBSTANTIAL
PREJUDICE TO THE DEFENDANTS AND UNDUE
BURDEN AND EXPENSE
Plaintiff does not dispute that the vast weight of authority in the Second Circuit favors the
bifurcation of Monell claims; in such cases bifurcation is the rule and not, as plaintiff suggests,
the exception. Instead, plaintiff asserts an incorrect legal standard and mischaracterizes the City
defendants’ position, in order to distract from the substantial prejudice that would be imposed by
a non-bifurcated trial, especially in light of plaintiff’s ambitious notions about his wide-ranging
Monell claim. First, plaintiff erroneously claims that the City argued that a judgment against
individual defendants is a prerequisite to Monell liability – in fact the City never so argued –
rather the City made the well-settled point that a finding of a constitutional violation is a
prerequisite to Monell liability. Second, plaintiff erroneously suggests that bifurcation is not
required because of qualified immunity, which is not the case, since the jury must still find that a
constitutional violation occurred before any Monell liability can be found. Third, plaintiff argues
that a bifurcated trial would require the repetition of evidence, when in fact there would be little
duplication. Fourth, if the Court concludes that there is a risk of substantial duplication, it can be
readily cured by the common practice of bifurcating the trial into phases with the same jury
hearing any surviving Monell claim after all other issues are decided. Fifth, plaintiff cannot be

prejudiced by bifurcation, and opposes it solely to unfairly prejudice defendants by the
introduction of evidence of other misconduct by individuals not involved here.
A. Bifurcation is warranted so that the jury can first determine whether a
constitutional violation occurred separately from the question of whether any
constitutional violation found was caused by a municipal policy.
As an initial matter, contrary to plaintiff’s straw-man argument, the City does not contend
that “plaintiff must establish the officers’ individual liability in order to succeed on the Monell
claim,” as plaintiff claims without quotation or citation. Plaintiff’s Memorandum of Law in
Opposition to Bifurcation Motion (“Plf. Mem.”), Docket No. 447, at 7. Rather, as the City
contended, black-letter law provides that “if the plaintiff fails to first prove any violation of his
constitutional rights, then there cannot be Monell liability and the court and jury need not hear
evidence on these complex and time-consuming matters of policy, custom and causation.” City
Memorandum of Law in Support of Motion for Reconsideration and Bifurcation (“City Mem.”),
Docket No. 438, at 15. “Establishing the liability of the municipality requires a showing that the
plaintiff suffered a tort in violation of federal law committed by the municipal actors and, in
addition, that their commission of the tort resulted from a custom or policy of the municipality.”
Askins v. Doe, 727 F.3d 248, 253 (2d Cir. 2013). That is so because “[i]f a person has suffered
no constitutional injury at the hands of the individual police officer, the fact that the departmental
regulations might have authorized” a constitutional violation “is quite beside the point.” City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986). 1

1

In City of Los Angeles v. Heller, “the jury returned a verdict for the defendant police officer and
against respondent,” and the Court held that as a result, in the procedural posture of that case, the
district court properly dismissed the Monell claim without further trial. Id., 475 U.S. at 798. But
qualified immunity or the failure to name proper defendants can lead to cases where no
individual is held liable, but the jury finds that a constitutional violation occurred. Askins, 727
F.3d at 253-54.
2

B. Bifurcation is warranted because there will be substantial prejudice to the City
defendants if the plaintiff’s proffered Monell evidence is considered on the main
issues in the case; there is little or no prejudice to plaintiff from bifurcation; and
there are potential cost-savings from a bifurcated trial since trial on all or part of
the Monell claim may never be needed.
Bifurcation is warranted because there is a host of evidence that would be offered in a
Monell trial which is not properly admissible in any trial of the issue of whether a constitutional
violation occurred. Bifurcation can eliminate this prejudice, and avoid the cost and burden of a
Monell phase which could be rendered moot by a prior decision on the main issues.
1. There is no presumption against bifurcation, as to which the Court has
broad discretion.
First, plaintiff incorrectly asserts that there is a presumption against bifurcation. See Plf.
Mem. at 2. As the Second Circuit has stated: “Rule 42(b) of the Federal Rules of Civil
Procedure affords a trial court the discretion to order separate trials where such an order will
further convenience, avoid prejudice, or promote efficiency. See Fed. R. Civ. P. 42(b).” Amato
v. City of Saratoga Springs, 170 F.3d 311, 316 (2d Cir. 1999). This discretion is “broad.”
Williams v. Blvd. Lines, Inc., 2013 U.S. Dist. LEXIS 149707, *23-24 (S.D.N.Y. Sept. 30, 2013)
(citing Ricciuti v. New York City Transit Authority, 796 F. Supp. 84, 86 (S.D.N.Y.1992)).
“Bifurcation may be justified if even one of these three factors is met.” Id. at *24 (citing Ismail v.
Cohen, 706 F. Supp. 243, 251 (S.D.N.Y.1989)), aff’d, 899 F.2d 183 (2d Cir. 1990)).
As the City previously demonstrated in its moving memorandum, there are ample grounds
for bifurcation here because it will avoid the substantial prejudice that would arise from
consideration of plaintiff’s Monell evidence on the main questions of the case, and would
promote convenience and efficiency by avoiding potentially unnecessary proof.

3

Indeed, not only is the issue left to the trial court’s sound discretion, but as the City
defendants demonstrated, and plaintiff does not deny, “[c]ourts in the Second Circuit generally
“‘favor bifurcating Monell claims.’” Bombard v. Volp, 44 F. Supp. 3d 514, 528 (D. Vt. 2014)
(quoting Mineo v. City of New York, 2013 U.S. Dist. LEXIS 46953, 2013 WL 1334322, at *1
(E.D.N.Y. Mar. 29, 2013))); see also City Defendant’s Mem of Law in Support of Motion for
Reconsideration and Bifurcation, Docket No. 439, at 14. As the Second Circuit stated in Amato
v. City of Saratoga Springs, there is “frequent bifurcation of proceedings where a plaintiff has
initiated a § 1983 action against individual officials and municipal entities [and] Section 1983
actions are particularly well suited for bifurcation . . . .” 170 F.3d 311, 320 (2d Cir. 1999). That
in part is because “if a plaintiff fails to show that a constitutional violation occurred in the suit
against the individual official, the corresponding cause of action against the municipality will be
mooted . . . .” Id. “For these reasons, trial courts will, with some frequency, exercise their
discretion pursuant to Rule 42(b) of the Federal Rules of Civil Procedure and sever the
proceedings.” Id. (emphasis added).
In response, plaintiff cites an inapt standard (although the circumstances here meet even
that standard). The language on which plaintiff relies for a so-called “presumption” against
bifurcation appears in only a short string of district court cases, and is derived from a Supreme
Court ruling of 1921. See Plf. Mem. at 2 n. 2 (quoting Jeanty v. County of Orange, 379 F. Supp.
2d 533, 549 (S.D.N.Y. 2005) (citing Martinez v. Robinson, 2002 U.S. Dist. LEXIS 4454,
(S.D.N.Y. Mar. 19, 2002) (quoting Lewis v. Triborough Bridge & Tunnel Auth., 2000 U.S. Dist.
LEXIS 4982 (S.D.N.Y. Apr. 19, 2000) (quoting Miller v. Am. Bonding Co., 257 U.S. 304, 307
(1921))))). The source of the “presumption” language, Miller v. Am. Bonding Co., 257 U.S. 304
(1921), was decided 16 years before Fed. R. Civ. P. 42(b) was enacted in 1937. See Advisory

4

Committee Notes, Fed. R. Civ. P. 42. The Miller ruling was based on a statute governing actions
on surety bonds said “only one action shall be brought,” and therefore a claimant was not entitled
to a separate trial of his own claim. 257 U.S. at 306. This authority does not govern bifurcation
under Fed. R. Civ. Pl 42(b), which is later in time and contains no presumption against
bifurcation. Accordingly, the Second Circuit has never adopted plaintiff’s purported
“presumption” against bifurcation under Fed. R. Civ. P. 42(b).
2. The defense of qualified immunity does not change the Monell bifurcation
analysis because the prejudice to defendants and the potential for judicial
economy remain even when qualified immunity is present.
Second, plaintiff wrongly contends that because qualified immunity has been granted on
his First Amendment claims, and, as in every case, could be granted on other claims at trial,
bifurcation is inappropriate. Plf. Mem. at 7. That is not so, because the same prejudice from
plaintiff’s Monell evidence and the same potential cost-savings 2 are present, regardless of
qualified immunity. The question of whether a constitutional violation occurred may be tried
and decided prior to the question of whether that violation was directly caused by a municipal
policy, whether or not there is qualified immunity or any named individual defendants. If that
question is resolved in the defendants’ favor there is no need for the Monell evidence, and the
prejudice and cost that it would entail. Moreover, even a partially favorable ruling for the
defendants on the main issues could save time and cost. For example, if plaintiff here prevails
on his false arrest theory, but the jury finds that the individuals involved did not act with a
retaliatory motive, then plaintiff’s Monell claim becomes entirely moot because in that case a
policy of quotas, retaliation or downgrading could not have caused plaintiff’s arrest. Moreover,

2

A certainty of cost-savings is not required: it is always true that the Monell phase may be
needed if plaintiff prevails on the main issue, regardless of qualified immunity.

5

the court need not find that there will be cost-savings to justify bifurcation where, as here,
prejudice is also established. See Williams, 2013 U.S. Dist. LEXIS 149707, at *24. 3
3. The City defendants would be substantially prejudiced by a nonbifurcated trial, but plaintiff would suffer no prejudice from bifurcation.
Third, plaintiff has identified no prejudice that would flow from bifurcation. He cites
only the supposed substantial duplication of evidence, but in fact there is no overlap at all
between Monell and other issues. In Jeanty, the only case directly cited by plaintiff for this idea,
the defendant had called for the court to “try two cases that are essentially the same, except for
additional evidence” concerning Monell. 379 F. Supp. 2d at 549. Plaintiff claims that
bifurcation here would require evidence to be similarly “repeated” (Plf. Mem. at 5). 4
On the contrary, most of plaintiff’s Monell evidence has nothing to do with the
individuals’ conduct or motivations. Rather, plaintiff’s Monell case consists mostly of what he
concedes are “background facts,” having nothing to do with the individuals involved. Plf. Mem.
at 4. For example, plaintiff proffers the Mollen Commission Report from 1994 – fifteen years
before the events here – and testimony from officers from other precincts, other boroughs and at
other times; the testimony of proffered expert John Eterno based on media reports about other

3

Even plaintiff’s sole authority on this point agrees that prejudice alone could call for
bifurcation, even if efficiency savings were arguably lessened due to qualified immunity. See
McCoy v. City of New York, 2008 U.S. Dist. LEXIS 62567, *7-8 (E.D.N.Y. Aug. 13, 2008). In
McCoy, however, the court – declining to bifurcate before discovery, without prejudice to a later
motion – assumed the absence of prejudice because it was not asserted. Id.
4

The cases relied on by the court in Jeanty and string cited by plaintiff are even further afield. In
Martinez, 2002 U.S. Dist. LEXIS 44454, at *6-7, discovery had “barely begun” and the court
declined to bifurcate on pleadings alone. In Lewis, a Title VII case, a defendant asked to have
the case by one plaintiff against one defendant bifurcated from a related claim by a co-plaintiff
against a co-defendant in the same action. 2000 U.S. Dist. LEXIS 4982, at *2-3. In denying the
motion to bifurcate, the court distinguished that case from Section 1983 actions, where a trial on
one issue (whether a constitutional violation occurred) could dispose of another claim or issue
(Monell liability). 2000 U.S. Dist. LEXIS 4982, at *12 n.2.

6

people and survey responses from unidentified police commanders from unknown time-periods
and commands. 5 Plf. Mem. at 4-5; see City’s Opposition to Plaintiff’s Motion for
Reconsideration (“City Opp. Mem.”), Docket No. 450, at 16.
Defendants contend that this evidence is irrelevant even to plaintiff’s Monell claim
because quotas and downgrading did not cause a constitutional harm to Schoolcraft. But even if
deemed relevant to Monell – which it is not – the evidence is certainly not relevant to the conduct
of the individuals because plaintiff’s Monell case consists almost entirely of events having no
connection to Marino, Mauriello or any other individual involved. 6 In plaintiff’s theory of the
case, plaintiff must prove that the individual defendants engaged in retaliation, quotas or
downgrading, not that someone else did, outside the knowledge of anyone involved. As stated
by this Court in its decision granting bifurcation in Santiago v. New York, the “potentially
voluminous evidence of the Municipal Defendants’ policies or customs will simply not be
probative of whether [an individual] inflicted a constitutional injury.” 1992 U.S. Dist. LEXIS
6731, *8-9 (S.D.N.Y. May 15, 1992) (Sweet, J.).
Indeed, plaintiff’s opposition grants a small window into how confusing a non-bifurcated
case would be. For example, plaintiff would like to prove that the supposedly City-wide
practices of quotas caused his subpar performance evaluation in January 2009. See Plf. Mem. at
3; Schoolcraft v. City of New York, 2015 U.S. Dist. LEXIS 58831, *11 (S.D.N.Y. May 5, 2015)
(“Schoolcraft IV”). But the reason for plaintiff’s subpar personnel evaluation in January 2009 is

5

The City defendants reserve all arguments and objections regarding the admissibility of such
evidence for any purpose.
6

Without conceding that any of plaintiff’s Monell evidence is relevant and admissible, the only
Monell evidence that plaintiff could point to as plausibly duplicative is a labor arbitration ruling
from 2006 concerning Marino. A single labor arbitration ruling, were it ruled admissible over the
City defendants’ objections, does not constitute any significant duplication of evidence.

7

irrelevant to whether a constitutional violation occurred, because, as this court previously ruled
as a matter of law, plaintiff’s purported non-compliance with quotas – which he claims caused
his bad performance evaluation – is not protected by the First Amendment; in fact, plaintiff
engaged in no protected speech before the evaluation. See City Opp. Mem. at 10-11; Schoolcraft
v. City of New York, 2012 U.S. Dist. LEXIS 128557, *27-30 (S.D.N.Y. Sept. 7, 2012). Nor is
plaintiff’s appeal of his personnel evaluation in January-February 2009 protected by the First
Amendment. Schoolcraft IV, 2015 U.S. Dist. LEXIS 58831, at *100-103. Nor is a negative
evaluation a sufficiently concrete “adverse employment action” for which plaintiff can seek
relief. See City Opp. Mem. at 10-11. Allowing plaintiff to present evidence of a claim that is
not actionable under the guise of Monell would only confuse the jury about the triable issues.
Plaintiff bootlessly argues that this case is distinguishable from the host of decisions
granting bifurcation because his case involves numerous incidents over the course of a two-year
period. Plf. Mem. at 3. But that is all the more reason why bifurcation is necessary: an already
long and complex trial should not be further complicated by mixing in evidence having nothing
to do with the events at issue. Plaintiff’s proffered solution of limiting instructions only adds
needless burden and complexity to the jury’s deliberations and the parties’ conduct of the trial.
Such instructions are especially unlikely to be effective in a trial of this size and scope.
Moreover, in the wide-ranging trial envisioned by plaintiff, the City would be compelled
to offer even more evidence in response. A municipality cannot be held liable under a Monell
custom and usage theory if the City prohibits, investigates and combats the purported custom.
See Reynolds v. Giuliani, 506 F. 3d 183, 196-196 (2d Cir. 2007) (“efforts to foster compliance
preclude a finding of deliberate indifference”). Therefore, at trial the City would face a
Hobson’s choice: either add to the mass of prejudicial matter to show that the City punished

8

other instances of misconduct, or allow the plaintiff to suggest that the City did nothing at all.
There is no need to impose such a prejudicial choice on defendants because the remedy of
bifurcation is available.
4. If the Court finds a risk of duplicative evidence it could have the Monell
trial with the same jury, immediately following the main trial.
Fourth, even if the Court were to find a risk of excessive duplication of evidence, there is
a costless and commonplace solution: the Court may hold the Monell phase of the bifurcated trial
before the same jury, immediately following a verdict on all other issues, if the jury finds that a
constitutional violation occurred. See, e.g., Amato v. City of Saratoga Springs, 170 F.3d 311,
316 (2d Cir. 1999) (affirming trial courts order to have Monell phase of the trial occur with the
same jury immediately following the trial on other issues); Mineo v. City of New York, 2013 U.S.
Dist. LEXIS 46953, *7 (E.D.N.Y. Mar. 29, 2013) (“A verdict in favor of plaintiff will be
followed immediately by a trial on damages, before the same jury.”); Carson v. Syracuse, 1993
U.S. Dist. LEXIS 9508, *19 (N.D.N.Y June 30, 1993) (ordering Monell trial to occur “back to
back” with the same jury as the trial on other issues); Daniels v. Loizzo, 178 F.R.D. 46, 49
(S.D.N.Y. 1998) (same).
Plaintiff cannot possibly be prejudiced by such bifurcation. If the plaintiff can
demonstrate at trial that evidence is admissible regarding whether a constitutional violation
occurred, 7 then plaintiff would present such evidence in the first phase of a trial. The evidence
need not be repeated because the same jury would determine Monell questions.

7

The City defendants reserve all objections and arguments regarding the admissibility of any
evidence, whether or not the case is bifurcated.

9

CONCLUSION
For the foregoing reasons and those stated in the City defendants’ prior submissions, the
Court should bifurcate the trial to allow for a separate determination of Monell issues.
Dated: New York, New York
July 10, 2015
Respectfully submitted,
ZACHARY W. CARTER
Corporation Counsel of the
City of New York
Attorneys for City Defendants
100 Church Street, Room 3-174
New York, New York 10007
[phone]
By:

10

______________________
Alan Scheiner
Senior Counsel
Cheryl Shammas
Senior Counsel
Kavin Thadani
Senior Counsel
Assistant Corporation Counsel
Special Federal Litigation Division