Federal Civil Practice

In section 1983 action alleging that defendants-prison officials used excessive force while subduing plaintiff-prisoner in his cell, Dist. Ct. erred in removing plaintiff from courtroom and sending him back to prison at close of evidence and prior to giving plaintiff opportunity to seek jury poll following jury’s verdict in defendants’ favor. Civil litigant has right under Rule 48(c) to poll jury following adverse jury verdict, and failure to conduct properly requested jury poll is serious error that ordinarily requires reversal. Moreover, reversal of jury’s verdict is required here, where: (1) reason for plaintiff’s immediate removal from courtroom at close of evidence was not readily apparent; (2) Dist. Ct.’s action precluded plaintiff from having any input on jury question posed to Dist. Ct. regarding existence of prison video; and (3) jury’s foreperson gave post-verdict ambiguous statement regarding defendants’ actions in case that would have generated request for jury poll, especially where jury had initially reported that it was deadlocked in matter. Ct. rejected defendants’ claim that plaintiff should have requested jury poll prior to jury announcing its verdict.

Ct. of Appeals lacked jurisdiction to consider appeal of Dist. Ct. order that remanded matter back to Bankruptcy Ct. for new hearing as to whether defects in roof of building arose after Bankruptcy Ct. had approved debtor’s assumption and sale of lease of said building to tenant, where landlord sought to hold tenant responsible for repair of said leaks, and where tenant had moved Bankruptcy Ct. to reopen bankruptcy proceeding to block landlord from seeking said repair under argument that leaks were present prior to Bankruptcy Ct.’s approval of debtor’s assumption and sale of lease to tenant. Dist. Ct.’s remand order was not “final decision” for purposes of providing Ct. of Appeals with jurisdiction under 28 USC sections 158 or 1291 to consider appeal, since remand order contemplated new findings of fact and new decision by Bankruptcy Ct., which had originally denied tenant’s request to block landlord’s claim for repairs to roof. Ct. of Appeals rejected landlord’s argument that it had jurisdiction to consider appeal under 28 USC section 1292, after finding that remand order did not qualify as modification of injunction.

Dist. Ct. did not err in granting defendants-police officials’ motion for summary judgment in section 1983 action, alleging that defendants lacked probable cause to stop plaintiff for traffic offense and to subsequently arrest him on driving while intoxicated (DWI) charge. Police had probable cause to stop defendant, where officer’s radar gun indicated that plaintiff had been speeding, and where plaintiff presented no evidence indicating that radar gun was inaccurate. Thus, plaintiff could have been properly arrested on speeding charge without regard to propriety of DWI charge. Moreover, officer had probable cause to arrest plaintiff on DWI charge, where defendant’s blood alcohol reading was over legal limit. Fact that plaintiff claimed that he had only one beer on night of arrest did not preclude issuance of summary judgment.

Plaintiff waived any argument that Dist. Ct. erred in denying his challenge to one juror who sat on jury in plaintiff’s section 1983 action, alleging that defendant-officer used excessive force in arresting plaintiff during homicide investigation. Record showed that, after plaintiff’s challenge to said juror was denied, plaintiff turned down Dist. Ct.’s subsequent offer to empanel new jury before proceeding with trial.

Dist. Ct. did not err in dismissing for want of prosecution plaintiff’s section 1983 action, where plaintiff failed to serve any defendant within 15 months after filing said action. Record showed that nothing had occurred with lawsuit in first 13 months, although plaintiff had explained that defendant-university had stymied his efforts to serve appropriate defendants by failing to provide names and addresses of its employees, and defendant did nothing in following two months to serve any defendants, including governmental defendants. Moreover, Dist. Ct. did not err in treating plaintiff’s motion to reconsider dismissal under Rule 59(e) as motion to vacate dismissal order under Rule 60(b), where plaintiff’s motion was filed one day after applicable 28-day deadline for filing Rule 59(e) motions. Also, Rule 6(d) did not provide plaintiff with three-day extension of time for filing Rule 59(e) motion to reconsider, even though plaintiff had received notice of dismissal by mail.

Dist. Ct. did not err in conditioning grant of plaintiff’s motion to voluntarily dismiss without prejudice its breach of contract action by requiring plaintiff to pay defendants $11,000 out of requested $56,000 in legal fees associated with defendants’ claim that plaintiff lacked subject-matter jurisdiction, after Dist. Ct. had found that instant parties were not completely diverse. While defendants argued that they were entitled to remaining portion of requested legal fees that arose out of other claims in their motion to dismiss, which included claim that one defendant had not been properly served with lawsuit, Dist. Ct. could properly find that $45,000 fee was excessive for said legal work, and defendants could not have otherwise prevailed on lack of service issue, where they had waived it by failing to include it in their responsive pleading to complaint.

Dist. Ct. erred in denying plaintiff’s motion to certify her proposed class action in claim alleging that defendant-debt collector violated Fair Debt Collection Practices Act (FDCPA) by filing lawsuit seeking to collect for debt arising out of plaintiff’s purchase of natural gas for household use that was beyond applicable limitations period. Applicable limitations period was four years, and fact that plaintiff’s debt was over five years old did not preclude her from being suitable class representative for proposed members who had debts between four and five years old. Ct. rejected Dist. Ct.’s belief that members of proposed class who had not yet been served with defendant’s debt collection lawsuit could not be viewed as proper members of plaintiff’s proposed class where, as here, plaintiff sought only statutory damages under FDCPA. Also, fact that some of proposed members sought actual damages was insufficient by itself to deny plaintiff’s class action request, where underlying liability claim was same for all proposed class members.

Dist. Ct. did not err in dismissing instant action alleging violations of international law and Torture Victim Protection Act on grounds that it lacked personal jurisdiction over defendant, where defendant demonstrated that he had not been served with copy of complaint and had not been at location where process server claimed he had served defendant. While plaintiffs presented testimony from their process server claiming that he had served defendant at local high school, Dist. Ct. could properly find that defendant was never actually served with copy of complaint, where third-party, who resembled defendant, testified that he was at high school and had actually been served with copy of complaint, and record otherwise contained overwhelming evidence of mistaken identity. Dist. Ct. also did not abuse its discretion in denying plaintiffs’ request for additional 30 days to conduct discovery on instant issue.

Dist. Ct. did not err in granting defendant’s motion to dismiss plaintiff’s action alleging that defendant improperly billed it for drug dispensing services at rates not authorized in agreement signed by instant parties. Basis of motion to dismiss was existence of arbitration clause contained in separate agreement for drug dispensing services that was offered by defendant, but never signed by plaintiff, and Dist. Ct. could properly find that separate agreement containing arbitration clause had been ratified by plaintiff under circumstances, where plaintiff had received for period of years more favorable rate schedule and other benefits contained in separate agreement, with both direct and imputed knowledge that it had been receiving said favorable rates and benefits without ever repudiating said favorable treatment.

Dist. Ct. did not err in dismissing plaintiff’s section 1983 action alleging that defendants-police officers violated plaintiff’s 4th Amendment rights by detaining her in her employer’s home for two-hour period while conducting investigation into claim by relative of employer that plaintiff and another individual had improperly sought large amount of money, as well as power of attorney, from infirm employer in absence of any of employer’s family. Record showed that at conclusion of their investigation, defendants ordered plaintiff to leave employer’s premises without $10,000 check that employer had written to plaintiff, and although two-hour detention is too long to constitute viable Terry stop, instant detention was nevertheless “reasonable” for 4th Amendment purposes where: (1) investigation occurred in employer’s home, as opposed to police station; (2) defendants did not extensively question plaintiff; (3) police had grounds for suspicion that plaintiff had improperly obtained $10,000 check, where plaintiff had only worked 88 hours as home care worker; (4) employer suffered from Parkinson’s disease that typically had severe cognitive impairment as side effect; and (5) allowing plaintiff to depart with $10,000 check as she wanted would have been irresponsible given defendants’ suspicion.