17-1243
Leniart v. Bundy
                             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.

       At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 4th day of February, two thousand and nineteen.

Present:
                  PETER W. HALL,
                  SUSAN L. CARNEY,
                  RICHARD J. SULLIVAN,
                      Circuit Judges,


George M. Leniart,

                 Plaintiff-Appellant,

v.                                                                          17-1243-cv

Eric Ellison, Parole Supervisor, Larry Bransford,
Parole Officer,

                 Defendants-Appellees.*


For Plaintiff-Appellant:                 OMAR ALI KHAN (Jack Zarin-Rosenfeld, on the brief)
                                         Wilmer Cutler Pickering Hale and Dorr LLP, New
                                         York, NY

For Defendants-Appellants:               STEVEN R. STROM, Assistant Attorney General, for
                                         William Tong, Attorney General, Hartford, CT.

*   The Clerk is directed to amend the caption as above.
      Appeal from a judgment entered February 19, 2015, and rulings issued on

March 16, 2017, and March 30, 2017, in the District of Connecticut (Fitzsimmons, J.).

      UPON      DUE      CONSIDERATION,           IT   IS    HEREBY       ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment and rulings are

AFFIRMED.

      George Leniart appeals from the final judgment of the district court entered

after a jury verdict in favor of all defendants. Specifically, Leniart appeals (1) the

district court’s denial of his renewed motion for judgment as a matter of law against

Ellison under Federal Rule of Civil Procedure 50(b), and (2) the district court’s denial

of his motion for a new trial against Ellison and Bransford under Federal Rule of

Civil Procedure 60(b)(2). For the first time on appeal, Leniart requests a new trial

against Ellison and Bransford under Federal Rule of Civil Procedure 60(b)(3). We

assume the parties’ familiarity with the underlying facts, the procedural history of

the case, and the issues presented on appeal, which we reference only as necessary to

explain our decision to affirm.

      I.     Rule 50(b) Renewed Motion for Judgment as a Matter of Law

      We review de novo the district court’s denial of a Rule 50(b) renewed motion

for judgment as a matter of law. Warren v. Pataki, 823 F.3d 125, 137 (2d Cir. 2016).

A Rule 50(b) motion may be granted “only if the court, viewing the evidence in the

light most favorable to the non-movant, concludes that a reasonable juror would have

been compelled to accept the view of the moving party.” Cash v. Cty. of Erie, 654 F.3d



                                           2
324, 333 (2d Cir. 2011) (internal quotation marks omitted). Such a motion must be

made before the case is submitted to the jury. Fed.R.Civ.P. 50(a)(2). A party may

renew the motion after an unfavorable verdict on the grounds specifically raised in

the prior motion for judgment as a matter of law. Tolbert v. Queens College, 242 F.3d

58, 70 (2d Cir. 2001).

      Viewing the evidence in the light most favorable to defendants, a reasonable

juror would not be compelled to find in Leniart’s favor. Manager Ellison’s authority

to seize and examine the microcassette recorder and tape flowed from reasonable

suspicion of specific parole violations, including not wearing his GPS monitoring

device, drinking alcohol, and engaging in sexual activities with minors in Leniart’s

home. The recorder and tape were found in the bag containing the laptop that the

parole officers were searching for, which itself was found in Leniart’s bedroom—the

site of an alleged assault. Like the laptop, the recorder and tape were devices capable

of creating and storing a contemporaneous record of Leniart’s alleged parole-violative

contacts with minors, consumption of alcohol, and sexual assault. Accordingly, they

fall within the reasonable scope of the parole investigation of Ellison.

      II.    Rule 60(b) Motions for a New Trial

      We review for abuse of discretion the denial of a motion for relief from a final

judgment under Rules 59 and 60(b). Devlin v. Transpo. Commc’ns Int’l Union, 175

F.3d 121, 131–32 (2d Cir. 1999). A district court exceeds the bounds of its discretion

when it “bases its ruling on an erroneous view of the law or on a clearly erroneous

assessment of the evidence, or render[s] a decision that cannot be located within the



                                           3
range of permissible decisions.” Gomez v. City of New York, 805 F.3d 419, 423 (2d Cir.

2015).

         The district court did not exceed the bounds of its discretion in denying

Leniart’s Rule 60(b)(2) motion. A court should grant a new trial under Rule 60(b)(2)

only when “newly discovered evidence . . . [is] of a sort that could, if believed, change

the verdict.” United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995). The party

seeking a new trial must show: “(1) the newly discovered evidence was of facts that

existed at the time of trial or other dispositive proceedings, (2) the movant was

justifiably ignorant of them despite due diligence, (3) the evidence is admissible and

of such importance that it probably would have changed the outcome, and (4) the

evidence is not merely cumulative or impeaching.” United States v. Int’l Bhd. of

Teamsters, 247 F.3d 370, 392 (2d Cir. 2001) (quoting United States v. Int’l Bhd. Of

Teamsters, 179 F.R.D. 444, 447 (S.D.N.Y. 1998)).

         Leniart failed to establish that the newly discovered evidence—the chain-of-

custody sheet, the broken envelope seal, the damaged recorder, and the tape—

probably would have altered the jury’s verdict. Because the recorder and tape are

directly relevant only to Leniart’s claim against Ellison, the revelation of the recorder,

the tape, and Bransford’s misrepresentations would likely not change the jury’s

verdict as to Ellison, let alone alter the district court’s grant of summary judgment in

favor of Bransford. Leniart has not demonstrated that Ellison knew the recorder and

tape existed prior to the search or what Leniart had told Bransford about the contents

of that tape. Leniart potentially could question Ellison about such information, but



                                            4
without more, at best it would impeach only Ellison. Moreover, Leniart’s counsel had

the opportunity to pursue such a line of questioning when cross-examining Ellison

during the trial but declined to do so. Finally, the fact that the tape did not contain

what Leniart claims indicates that the actual recorder and tape would not likely

change the outcome of the trial. Unlike with regard to Ellison, the new evidence could

be used effectively to impeach Bransford. Any argument as to how the new evidence

affects Bransford’s dismissal from this case on summary judgment, however, was

insufficiently made in Appellant’s brief to warrant a different result: Appellant points

to no direct evidence that Bransford caused Ellison to seize the tape and recorder,

and the new evidence does not, on its face, sufficiently support such an inference.

       Alternatively, Leniart asks us to grant a new trial under Rule 60(b)(3) because

of Bransford’s misconduct regarding the recorder and tape. Leniart did not raise this

argument in the district court and the court accordingly did not consider it. We

conclude that Leniart has waived this argument by failing to present it below. See

Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) (“[I]t is a well-

established general rule that an appellate court will not consider an issue raised for

the first time on appeal.”). As we have held elsewhere, “the circumstances normally”

do not “favor an exercise of discretion to address . . . new arguments on appeal where

those arguments were available to the [parties] below and they proffer no reason for

their failure to raise the arguments below.” Id. (internal citations omitted) (alteration

in original).




                                           5
We AFFIRM the district court’s judgment and rulings.



                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk of Court




                                 6
