Ling-Rong Chen v. City of Syracuse ( 2010 )

09-2560-cv
Chen v. City of Syracuse
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19 th day of July, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11
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13 Ling-Rong Chen,
14 Plaintiff-Appellant,
15
16 -v.- 09-2560-cv
17
18 City of Syracuse, Joseph Reilly,
19 Syracuse Police Officer, and Henry
20 Burns, Syracuse Police Officer,
21 Defendants-Appellees,
22
23 John Does, Fictitious Names Intended
24 to be Police Officers, Employees of
25 the City of Syracuse Police Department
26 each individually and as Police
27 Officers of the City of Syracuse
28 Police Department, and Mark Kleist,
29 Defendants.
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1 APPEARING FOR APPELLANT: JOSEPH S. COTE, Cote, Limpert &
2 Van Dyke, LLP, Syracuse, NY.
3
4 APPEARING FOR APPELLEES: JESSICA M. McKEE (Mary Anne
5 Doherty, on the brief), Office
6 of the Corporation Counsel, City
7 of Syracuse, Syracuse, NY.
8
9 Appeal from a judgment of the United States District
10 Court for Northern District of New York (McCurn, J.).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the judgment of the district court be
13 AFFIRMED.
14 Plaintiff, Ling-Rong Chen, appeals from a June 23, 2009
15 judgment of the United States District Court for the
16 Northern District of New York (McCurn, J.). Chen asserted
17 various state and federal law tort claims arising out of her
18 arrest by Syracuse police following an altercation at the
19 Syracuse International Airport. Judgment was entered for
20 the defendants following a jury trial. We assume the
21 parties’ familiarity with the underlying facts, the case’s
22 procedural history, and the issue presented for review.
23 Chen argues first that the district court should not
24 have permitted Michael Heenan to testify as an expert
25 because he was not properly identified pursuant to Federal
26 Rule of Civil Procedure 26(a)(2). Any error by the district
27 court was harmless. See Fed. R. Civ. P. 61. Heenan was
28 identified pretrial as a witness (albeit not an expert) who
29 would testify to the “use of force and the training in use
30 of force the Defendant police officers received.” Chen’s
31 thorough cross-examination of Heenan confirms that she was
32 neither surprised nor unprepared.
33 Chen next argues that the district court should not
34 have allowed the rebuttal testimony of David Mirizio because
35 he was not identified as a witness pursuant to Federal Rule
36 of Civil Procedure 26(a)(3)(A)(i). The Rule’s requirement
37 does not apply to evidence offered “solely for impeachment,”
38 Fed. R. Civ. P. 26(a)(3)(A), and Mirizio testified only for
39 the purpose of impeaching Chen’s testimony about the
40 November 15th incident. Cf. Hammel v. Eau Galle Cheese
41 Factory, 407 F.3d 852, 869-70 (7th Cir. 2005) (allowing
42 party to call a previously undisclosed rebuttal witness for
43 impeachment purposes). Indeed, it was not until trial that
44 Chen testified to the date of the November 15th incident.
2
1 Third, Chen challenges the jury selection. She has
2 failed, however, to provide either a transcript of the jury
3 selection (she claims none was made), or a “statement of the
4 . . . proceedings” as permitted by Federal Rule of Appellate
5 Procedure 10(c). Absent any record or report of the
6 proceedings challenged, it is impossible for us to ascertain
7 and review the rulings at issue. The argument is
8 accordingly forfeited. See, e.g., Bogan v. City of Boston,
9 489 F.3d 417, 425 (1st Cir. 2007).
10 Finally, Chen argues that the district court should
11 have issued an adverse inference instruction to the jury
12 because the defendants failed to produce [i] a videotape
13 from a security camera in the Syracuse International
14 Airport’s northern terminal and [ii] video of the event
15 taken by an unaffiliated bystander. We review the district
16 court’s decision for abuse of discretion, Residential
17 Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d
18 Cir. 2002); and find none. With respect to the bystander
19 video, Chen does not argue (let alone demonstrate) that the
20 defendants ever “ha[d] control over the evidence,” id. at
21 107; she argues only that they failed somehow to obtain it.
22 And with respect to the northern terminal video, Chen has
23 not sufficiently established “that the destroyed evidence
24 was relevant to [her] claim . . . such that a reasonable
25 trier of fact could find that it would support that claim.”
26 Id. at 107 (internal quotation marks omitted). John Carni
27 testified that he declined to preserve the video because it
28 lacked useful--i.e., relevant--images. Chen’s evidence
29 rebutted that testimony only weakly, if at all. Officers
30 Kluge and Ware testified that there were cameras in the
31 vicinity of the Continental ticket counter, but neither
32 testified that any could or did videotape the counter. In
33 fact, Officer Ware’s testimony (that the closest camera had
34 only obscured views of the counter) tended to support
35 Carni’s testimony.
36 Finding no merit in Chen’s remaining arguments, we
37 hereby AFFIRM the district court’s judgment.
38
39
40 FOR THE COURT:
41 CATHERINE O’HAGAN WOLFE, CLERK
42
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