Lisа CARUSO, Plaintiff-Appellant-Cross-Appellee, v. William FORSLUND and Nicholas Palladino, Defendants-Appellees-Cross-Appellants.
Nos. 355, 486, Dockets 94-7220, 94-7266
United States Court of Appeals, Second Circuit.
Argued Oct. 11, 1994. Decided Jan. 31, 1995.
47 F.3d 27
Contu Report at 13-14 (emphasis added) quoted in, Foresight Resources, 719 F.Supp. at 1009.
Although at the time the parties entered into an agreement for the creation of CSALIB they orally agreеd that the program would be used on one Island computer, the district court found that the oral agreement had not been breached. Moreover, both parties knew that modifications would be essential for the continued functioning of the program on an upgraded computer system, and that, in fact, the system was continually being upgraded in order to keep up with Island‘s growth. Until this lawsuit Aymes never sought to prohibit others from making modifications to the programs, although for some time he had been аware that Island had hired another programmer to convert and modify CSALIB. Indeed, Aymes was present and raised no objection while some of the modifications were being made by Island‘s employees.
Finally, there is no merit to Aymes‘s suggestion that defendants infringed his copyright because they used the programs in an unauthorized manner and for an external purpose. Foresight Resources, 719 F.Supp. at 1009; Apple Computer, 594 F.Supp. at 621.
The district court found that Island used CSALIB for internal business purposes only and did not distribute the program to its subsidiaries. These findings are not clearly erroneous. Nor is there evidence that the modified program was marketed, manufactured, distributed, transferred, or used for any purpose other than Island‘s own internal business needs. See Id. (“the copy authorized by Section 117 must be made only for the owner-user‘s internal use“).
We have considered Aymes‘s other contentions and find them to be similarly without merit.
CONCLUSION
In sum, defendants properly modified their copy of CSALIB to suit their own needs; Island‘s adaptations were essential to allow use of the program for the very purpose for which it was purchased. Island used CSALIB on only one computer for one corporation and defendants did not infringe Aymes‘s copyright.
The judgment of the district court is therefore affirmed.
Suzanne L. McAlpine, New Haven, CT (Hugh F. Keefe, Lynch, Traub, Keefe & Errante, of counsel), for defendants-appellees-cross-appellants.
Before: LUMBARD, KEARSE, and MINER, Circuit Judges.
MINER, Circuit Judge:
Plaintiff-appellant-cross-appellee Lisa Caruso and defendants-appellees-cross-apрellants William Forslund and Nicholas Palladi
BACKGROUND
On the morning of September 14, 1988, Detective William Forslund of the East Haven, Connecticut Police Department was approached at police headquarters by Donna Neuman, a woman searching for her two-year-old daughter Nicole. Ms. Neuman told Detective Forslund that her child had been abducted from Maine, and that she had reason to believe that the child was in East Haven. Ms. Neuman had no court order establishing the custody of Nicole, nor did she file with Forslund a criminal complaint pertaining to the abduction. She did, however, present Forslund with the child‘s birth certificate, which identified Nicole‘s mother as Donna Lynne Neuman and the father as Kenneth Roy Merrick.
Ms. Neuman told Forslund that the father of the child was Mr. Ira Perkins, and she gave Forslund a list of names and addresses of Mr. Perkins’ family members. One of the names on the list was Sylvia Caruso, whose address was listed as 20 Foote Road, New Haven, Connecticut. (It was later determined that this address actually was in East Haven.) Fоrslund then obtained teletype information from Maine, and learned that there was an all points bulletin out on Nicole. According to the bulletin, Nicole was missing from her home in Maine and it was believed that she had been taken by Ira Perkins. After receiving this information, Forslund contacted an official in Maine and received confirmation that the bulletin was still active. Forslund then contacted defendant Officer Nicholas Palladino, who was on patrol at that time, and told him to proceed to 20 Foote Road in East Haven. Detective Forslund also proceeded to that address, along with Ms. Neuman and a police matron. The officers had not obtained a warrant to search the premises.
There is some dispute as to what occurred when Forslund and Palladino entered the house, but there was testimony that they entered Caruso‘s home without her consent. After the officers entered the house, they saw a number of children, as well as two adult visitors, standing in the living room with Caruso. Forslund thеn told Caruso that he was looking for Nicole Neuman, and he asked if one of the children in the room was Nicole. No one in the house would tell the officer whether one of the children was Nicole, or whether she was in the house at all. The inquiries about Nicole caused Caruso to become very upset, and there was testimony that she repeatedly asked the officers to leave. In addition, there was testimony that at least one of the officers left the living room areа and looked into other rooms in the house.
During the time that the officers were in her home, the plaintiff telephoned her father, Nicholas Caruso, who came to the house soon afterward. When Mr. Caruso arrived, Forslund notified him that he had received a complaint from Ms. Neuman and that he was looking for Ira Perkins in connection with the matter. Mr. Caruso then identified Nicole and contacted Mr. Perkins by telephone. The plaintiff had also contacted her sister, Doris Caruso, who came to the house. Again, although there is some dispute as to what happened next, there was evidence that Detective Forslund, Mr. Caruso and Doris Caruso went to the East Haven Police De
Ms. Caruso brought this action in the United States District Court for the District of Connеcticut, alleging that the defendants had deprived her of numerous rights guaranteed by both federal and state law, including the right to be free from unreasonable searches. The case proceeded to trial, and, at the end of plaintiff‘s case-in-chief, the defendants moved for judgment as a matter of law. The court reserved decision on the motion. After all the evidence had been presented, the defendants renewed their motion for judgment as a matter of law, and the court granted the motion as to all claims except for the claim based on an unreasonable search. Both parties presented the court with proposed jury instructions on the issue of punitive damages, but the court stated at a charging conference that it would not charge the jury on punitive damages until the jury first resolved the issue of liability. Caruso did not object to the court‘s decision, nor did she raise an objection after the charge, which omitted any reference to punitive dаmages.
After the instructions were given, interrogatories were submitted to the jury pursuant to
After trial, Caruso filed a motion for an award of nominal damages and moved for a new trial on the issue of punitive damages. The defendants made anоther motion for judgment as a matter of law, or in the alternative, for a new trial. The district court granted the plaintiff‘s motion for nominal damages and awarded her $1.00, but denied her motion for a new trial on the issue of punitive damages, stating that “[a]bsent evidence that a defendant was motivated by an evil intent or a reckless or callous indifference to a plaintiff‘s constitutional rights, a jury cannot award punitive damages.” The court concluded that Caruso had offered no evidence thаt would justify a finding that the officers were motivated by an evil intent or by a reckless or callous indifference to plaintiff‘s rights, and therefore that plaintiff was not entitled to punitive damages. In addition, although the plaintiff had not formally moved for attorney‘s fees, the court found that the plaintiff was not entitled to a fee award because she had received only nominal damages. The court denied both motions made by the defendants, concluding that there was adequate evidence to suрport the finding of an unreasonable search and seizure. Both sides appeal from the judgment.
DISCUSSION
1. New Trial on Punitive Damages
Caruso contends that the district court erred in denying her motion for a new trial on the issue of punitive damages. She argues that, in an action under section 1983, the standard of care that justifies a finding of liability in the first instance is the same as the standard for a finding of punitive damages, and that because the court permitted the issue of liability to go to the jury, she deserved a trial on the issue of punitive damagеs as well. Because we conclude that plaintiff has waived her right to a determination of whether she is entitled to punitive damages, we need not reach this argument. For the same reason, we do not pass on the district court‘s finding that the evidence did not justify an award of punitive damages.
We recognize that the district court stated at the charging conference that it would reserve a charge on punitive damages until the jury returned its verdict on liability. This statement by the district court may well have lulled the plaintiff into failing to object before the jury was sent to deliberate, although the better practice would have been for counsel to object before the jury retired. In any event, there was no excuse for plaintiff‘s failure to raise the issue of punitive damages after the verdict on liability was returned, before the jury was dismissed and while there yet remained an opportunity for the court to rule. When, as here, a district court is permitted to dismiss the jury without objection because of a party‘s lack of diligence, that party may not later complain of a failure to submit an issue to the jury. This is not a case, for example, where the trial court has mаde clear that an objection would be futile. Cf. Anderson v. Branen, 17 F.3d 552, 556-57 (2d Cir.1994). Caruso‘s attorney simply passed up the opportunity to urge consideration of the punitive damages issue. Under these circumstances, the plaintiff is not entitled to a new trial on this issue.
2. Attorney‘s Fees
Caruso also argues that the district court erred in denying an award of attorney‘s fees. The district court relied upon Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), in which the Supreme Court suggested that where a plaintiff was awarded only nominal damages, a fee award would normally be inappropriate. Id. at 115, 113 S.Ct. at 575. The district court concluded that, although the plaintiff prevailed, her victory was “technical” because she had been awarded no compensation, and therefore that any fee award would be unreasonable. We review the district court‘s decision for an abuse of discretion. LaRouche v. Kezer, 20 F.3d 68, 71 (2d Cir.1994).
Having been awarded nominal damages on the basis of the defendants’ violation of her constitutional rights, Caruso is a prevailing party within the meaning of
The complaint in this case alleged a host of rights violations, but only one claim eventually was submitted to the jury. On that claim, moreover, the jury returned a verdict for no compensatory damages, and the plaintiff obtained nominal damages only by moving for them. Plaintiff thus “fail[ed] to prove ... [a] claim for monetary relief.” Id. (quoting Carey v. Piphus, 435 U.S. 247, 256-57, 98 S.Ct. 1042, 1048-49, 55 L.Ed.2d 252 (1978)). Accordingly, there was a sound basis for the district court‘s conclusion that the only reasonable fee was “no fee at all.” See also Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993) (no attorney‘s fees for victory on claim of unreasonable search and seizure where only nominal damages were recovered, broad allegations of conspiracy were rejected, and no punitive damages were awarded).
Plaintiff‘s complaint states in its first paragraph that the action “is an action for money damages.” In addition, the last paragraph of the complaint states that “the plaintiff demands ... [c]ompensatory damages in an amount this Court shall consider to be fair, just and reasonable ... [and] punitive damages.” Furthermore, compensatory dаmages were addressed in plaintiff‘s proposed jury instructions, as well as in the jury charge and the interrogatories given to the jury. While plaintiff points to testimony that supposedly demonstrates that she desired no damages, that testimony is, at best, ambiguous.1 No statement appears in the record specifically withdrawing any claims for compensatory money damages. Under the circumstances of this case, we cannot say that the denial of attorney‘s fees was an abuse of discretion.
3. Defendants’ Cross-Appeal
The defendants cross-appeal from the district court‘s denial of their post-trial motion for judgment as a matter of law, or in the alternative for a new trial, arguing that no reasonable jury could have found in the plaintiff‘s favor on the unreasonable search issue. Defendants’ arguments must be rejected.
Judgment as a matter of law is proper under
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
KEARSE, Circuit Judge, concurring:
I concur in the judgment and in most of the majority opinion. I write separately to note my disagreement with the majority opinion‘s suggestion that, by failing to object to the district court‘s failure to submit the question of punitive damages to the jury, the plaintiff waived all right to have that claim decided. This is not a case in which a party has withdrawn or abandoned a claim. As the majority opinion notes, plaintiff may well have been “lullеd” into failing to object to the submission of the punitive damages issue to the jury; and after the jury was discharged, plaintiff moved to have that issue decided in a new trial. A court should not assume that an expressly asserted and pursued claim has been withdrawn unless there is clear evidence of a knowing withdrawal. See, e.g., Frank v. Relin, 1 F.3d 1317, 1326-27 (2d Cir.1993), cert. denied, 510 U.S. 1012 (1993). In my view, for the reasons stated below, plaintiff was entitled to have the punitive damages issue decided by the court, although in the circumstances of this case a remand for such a decision is not necessary.
Although the questions submitted to the jury were denominated interrogatories, I disagree with the majority‘s view that they were submitted pursuant to
Rather, I regard the questions as having been submitted to the jury in accordance with Rule 49(a). The fact that they were called “Interrogatories,” a term used in Rule 49(b) but not 49(a), is not determinative, for Rule 49(a) is not rigid. It provides that “the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate.”
When (a) the jury is not asked to return a general verdict but is merely asked to answer interrogatories, (b) a question essential to the adjudication of the claim is not included in the interrogatories, and (c) the parties do not urge the court prior to discharging the jury to submit that question to the jury, the court itself must answer the question. See, e.g.,
Even if the submission to a jury of questions that plainly do not cover all aspects of the plaintiff‘s claim could be deemed to call for a “general verdict,” making part (b) of Rule 49 applicable, I would not interpret Rule 49(b) to require that we find a waiver of an issue the plaintiff clearly did not mean to abandon. Part (b) of the Rule is silent as to the course to be follоwed where a “general verdict” has been requested with respect to only a specific part of the plaintiff‘s claim. In order to interpret this silence in a way that would achieve a just result here, I would not conclude that the court‘s failure to ask the jury about part of the claim that plaintiff clearly did not wish to abandon results in abandonment. I would conclude instead that the gap between the scope of plaintiff‘s claim and the scope of the jury‘s responses should be fillеd in accordance with the procedures prescribed in part (a) of the Rule.
Under Rule 49(a), where the trial judge has been silent on the undecided question or has indicated only that it could not decide the omitted question in favor of the plaintiff as a matter of law, we have remanded for the court to decide the issue. See Cullen v. Margiotta, 811 F.2d at 731-32. In the present case, however, the trial court plainly indicated its view at the conclusion of the evidence that plaintiff was not entitled to punitive damages: “I do not, myself, regard this as a punitive damages case....” (Trial Transcript, November 18, 1993, at 9.) Indeed, the court stated that if there were a jury verdict awarding plaintiff punitive damages, the court would probably set that verdict aside. Id.
In light of these statements, we should deem the trial court to have decided the punitive damages issue in accordance with Rule 49(a) and to have ruled against plaintiff. Accordingly, no remand is required, and I agree with the majority that the judgment should be affirmed.
STONEY RUN COMPANY and Larrymorе Organization, Plaintiffs-Appellants, v. PRUDENTIAL-LMI COMMERCIAL INSURANCE COMPANY, Defendant-Appellee. Paul L. Gruner, as Executor of the Estate of Helen Ann Gruner, Deceased, Judith Baker, as Limited Administratrix of the Estate of William Charles Russel, Margaret Osterhoudt, Judith Baker, Individually, James Schomer and Mary Schomer, Defendants.
No. 257, Docket 94-7285.
United States Court of Appeals, Second Circuit.
Argued Sept. 14, 1994. Decided Jan. 31, 1995.
Notes
The testimony is as follows:
Q [defendants’ attorney]: ... Ms. Caruso, ... [y]ou‘re suing these two police officers claiming that what, your civil rights were violated?
A [plaintiff]: Yes.
Q: That‘s what you‘re claiming. And you want these folks to give you money. That‘s what you‘re here for; is that right?
A: This is the only forum I can bring against them [sic].
Q: Oh, no that‘s not true, is it[?] East Haven has a police commission, doesn‘t it?
A: And it doesn‘t work.
Q: .... [T]he commission ... can‘t give you any money, can they?
A: It‘s not about money.
Q: This isn‘t about money?
A: It‘s about what they did.
Q: Okay. Do you want any money?
A: Really I—I‘m not worried about getting money.
Q: Well, does that mean, no, you don‘t want any money?
A: I‘m not concerned about it now.
Q: You don‘t want money. What do you want, an apology?
A: Yes.
Joint App. at 130-132.