John ACZEL, Plaintiff-Appellee-Cross-Appellant, v. Leonard LABONIA and Ethan Moble, Defendants-Appellants-Cross-Appellees, City of Danbury, Defendant-Appellee.

Nos. 06-4623-cv (L), 06-4956-cv (XAP).United States Court of Appeals, Second Circuit.
March 27, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the United States District Court for the District of Connecticut (Dorsey, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED ANDDECREED that the denial of judgment

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as a matter of law is AFFIRMED insofar as we have jurisdiction over the district court order. The remainder of the appeal is DISMISSED for lack of jurisdiction and the case is REMANDED to the district court.

Thomas R. Gerarde (Beatrice S. Jordan, on the brief), Howd Ludorf, LLC, Hartford, CT, for Appellants-Cross-Appellees.

Keith P. Sturges (William J. Kupinse, Jr., on the brief), Goldstein and Peck, P.C., Bridgeport, CT, for Appellee-Cross-Appellant.

PRESENT: Hon. DENNIS JACOBS, Chief Judge, Hon. WILFRED FEINBERG, Circuit Judge and Hon. LEONARD B. SAND, District Judge,[*] .

[*] The Honorable Leonard B. Sand, District Judge, United States District Court for the Southern District of New York, sitting by designation.

SUMMARY ORDER
Defendant Leonard Labonia, a police officer for the City of Danbury, Connecticut, appeals from an order of the United States District Court for the District of Connecticut (Dorsey J.), denying his motion for judgment as a matter of law after a jury trial on plaintiff John Aczel’s claims for inter alia, false arrest and excessive force See 42 U.S.C. § 1983. The jury returned a special verdict form that, in brief: (a) found no liability on the part of Labonia’s co-defendant Ethan Moble as to all six causes of action, (b) found no liability on Labonia’s part as to five causes of action, (c) found on the remaining claim that Labonia used excessive force but was entitled to qualified immunity, and (d) awarded Aczel compensatory damages despite finding no liability on the part of either defendant.

The district court accepted most of the verdict responses, but as to Labonia’s use of excessive force, Labonia’s entitlement to qualified immunity on the excessive force claim, and the award of damages, the court believed that these three responses could not be reconciled. Aczel moved for a new trial, which the district court granted, limited, however, to Aczel’s excessive force claim against Labonia and Labonia’s defense of qualified immunity. Labonia moved for judgment as a matter of law on qualified immunity, which the district court denied on the ground that it required the resolution of disputed factual issues. The parties cross-appealed the district court’s post-verdict rulings, although Aczel abandoned his appeal in favor of a motion to dismiss the entire appeal for lack of jurisdiction, which motion was referred to the merits panel. We assume the parties’ familiarity with the underlying facts and procedural history of this case.

An order granting a new trial is not an appealable final order and therefore we lack jurisdiction to review it. Ortiz-Del Valle v. Nat’l Basketball Ass’n, 190 F.3d 598, 599 (2d Cir. 1999) (per curiam). An order denying judgment as a matter of law is similarly interlocutory and not appealable. However, we have jurisdiction to review a district court’s denial of judgment on qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411
(1985), and then only if the appeal is based on “undisputed facts or plaintiffs version of the facts,” Coons v. Casabella, 284 F.3d 437, 440 (2d Cir. 2002) (internal quotation marks omitted).

Aczel argues that this appeal is governed by our prior decision in this case, which had ruled that material factual issues as to qualified immunity required a jury trial. See Aczel v. Labonia, 92 Fed. Appx. 17, 19-20 (2d Cir. 2004) (Aczel I). The prior decision was issued on defendants’ interlocutory appeal from the district court’s denial of summary judgment on the issue of qualified immunity. However,

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the prior decision exercised jurisdiction because defendants had argued entitlement to qualified immunity under the undisputed facts and, where disputed, under the version most favorable to the plaintiff. We rejected defendants’ argument and remanded the case for trial. Id. at 21. Similarly, at this juncture, defendant Labonia argues that the undisputed facts, as established by the verdict form responses that were accepted by the district court, entitled him to judgment on qualified immunity. Our jurisdiction is limited to this question. see Britt v. Garcia, 457 F.3d 264, 271-72 (2d Cir. 2006).

Once the district court rejected the jury’s verdict on excessive force and qualified immunity, the verdict form no longer resolved disputed factual issues regarding the precise force Labonia used, the reasonableness of his belief that he was justified in using that amount of force, and the reasonableness of his belief as to the legality of that force see Stephenson v. Doe, 332 F.3d 68, 78-79 (2d Cir. 2003). The district court was thus left with a trial record on the issue of qualified immunity in most respects indistinguishable from the fact scenario presented on the motion for summary judgment-a record in which the defense case contradicted plaintiffs on “myriad” factual issues. see Aczel I, 92 Fed.Appx. at 20. Given the trial record, and the district court’s decision to reject aspects of the verdict, the district court properly declined to conclude that Labonia was entitled to qualified immunity as a matter of law. There is no basis to disturb that ruling.

While this appeal was pending, the district court expressed misgivings about its decision to reject the three supposedly inconsistent verdict form responses. Nothing in this decision bars the district court from revisiting its earlier ruling as to whether the verdict form responses can be reconciled. Nor does anything in this decision bar whichever party is aggrieved by the reconsidered ruling from taking another appeal at the appropriate time, assuming jurisdiction lies.

For the foregoing reasons, we AFFIRM the denial of judgment as a matter of law on qualified immunity. WeDISMISS the remainder of the appeals for lack of jurisdiction and REMAND the case to the district court.