    14-4023-cv
    Ultegra LLC v. Mystic Fire Dist.

                          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 ASUMMARY ORDER@). A PARTY CITING TO 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 20th day of January, two thousand seventeen.

    PRESENT:
                     PETER W. HALL,
                     CHRISTOPHER F. DRONEY,
                            Circuit Judges,
                     ALISON J. NATHAN,*
                            District Judge.

    _______________________________________

    ULTEGRA LLC, GRETCHEN CHIPPERINI,

                            Plaintiffs-Appellants,

                     v.                                                         No. 14-4023-cv

    MYSTIC FIRE DIST., CHRISTOPHER MAY, KYLE
    HILBERT, FRANK C. HILBERT, ANTHONY P.
    MANFREDI, JR., CHRIS PAIGE, BRIAN MOLKENTHIN,
    NICK ALLYN,

                      Defendants-Appellees.1
    _______________________________________

    *
     Judge Alison J. Nathan, of the United States District Court for the Southern District of New
    York, sitting by designation.
    1
        The Clerk of Court is respectfully requested to amend the caption to conform with the above.
For Plaintiffs-Appellants:                           BRUCE H. RAYMOND (Evan K. Buchberger,
                                                     on the brief), Raymond Law Group LLC,
                                                     Glastonbury, CT.

For Defendants-Appellees:                            MICHAEL C. DEAKIN, Deakin Edwards &
                                                     Clark, LLP, Woodbridge, CT.

       Appeal from a judgment of the United States District Court for the District of

Connecticut (Shea, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellants Gretchen Chipperini and Ultegra LLC sued numerous defendants after an

intoxicated William Celtruda, a volunteer firefighter from the Mystic Fire District’s B.F. Hoxie

Engine Company (“Hoxie Fire Station”), burned down their property in Mystic, Connecticut.

As relevant, Appellants asserted claims under 42 U.S.C. § 1983 and under state law for

negligence against Christopher May, a Captain of the Hoxie Fire Station; two claims of

negligence and willful and wanton conduct against Kyle Hilbert, a lieutenant of the Hoxie Fire

Station; and an indemnification claim against the Mystic Fire District. The district court granted

summary judgment in favor of Captain May on the § 1983 claim. The remaining claims were

submitted to a jury, which found in favor of the defendants on all counts. On appeal, Appellants

seek review of the following: (1) an evidentiary ruling precluding testimony at trial concerning

Celtruda’s drug use; (2) an order granting summary judgment in favor of Captain May on the

Appellants’ § 1983 claim; (3) an order awarding the defendants $3,450 in attorneys’ fees and

costs under Federal Rule of Civil Procedure 11 for their efforts to show that Ms. Chipperini

improperly delayed the trial; and (4) an evidentiary ruling precluding two of Appellants’

damages experts from testifying at trial. We assume the parties’ familiarity with the underlying

facts and the procedural history of this case.

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       A. Exclusion of Evidence of Celtruda’s Drug Use

       “We review evidentiary rulings for abuse of discretion.” United States v. Mercado, 573

F.3d 138, 141 (2d Cir. 2009). Under Federal Rule of Evidence 401, evidence is relevant if “it

has any tendency to make a fact” that is “of consequence in determining the action” “more or

less probable than it would be without the evidence . . .” Fed. R. Evid. 401. Under Federal Rule

of Evidence 403, relevant evidence “may be excluded if its probative value is substantially

outweighed by a danger” of, among other things, “unfair prejudice, confusing the issues,” or

“misleading the jury . . .” Fed. R. Evid. 403.      We apply a “highly deferential” standard of

review to Rule 401 and 403 challenges “in recognition of the district court’s ‘superior position to

assess relevancy and to weigh the probative value of evidence against its potential for unfair

prejudice.’” United States v. Coppola, 671 F.3d 220, 244 (2d Cir. 2012) (quoting United States

v. Abu–Jihaad, 630 F.3d 102, 131 (2d Cir. 2010)).

       The district court did not abuse its discretion in excluding evidence concerning Celtruda’s

drug use. Although Appellants contend that the district court “too narrowly construed their

complaint” as alleging negligence based only on the defendants’ failure to conduct a

psychological evaluation of Celtruda, the fact remains that their complaint did not allege that the

defendants should have also performed a drug test. The court was not required to read into the

complaint an allegation that Appellants themselves did not make. The district court, moreover,

correctly observed that there was no evidence that the defendants had any knowledge of

Celtruda’s drug use. In any event, the district court acted within its discretion under Rule 403 in

concluding that, even if evidence of Celtruda’s drug use had some probative value, it had the

potential to confuse the jury, which outweighed any probative value.




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       B. Summary Judgment in Favor of Captain May on § 1983 Claim

       “We review de novo an order granting summary judgment and ‘resolv[e] all ambiguities

and draw[] all permissible factual inferences in favor of the party against whom summary

judgment is sought.’” Doe ex rel. Doe v. Whelan, 732 F.3d 151, 155 (2d Cir. 2013) (alteration in

original) (quoting Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010)). “Summary judgment is

appropriate where ‘there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.’” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir.

2013) (quoting Fed. R. Civ. P. 56(a)).

       An action under 42 U.S.C. § 1983 requires a plaintiff to show that the defendant violated

a constitutional right. Matican v. City of N.Y., 524 F.3d 151, 154 (2d Cir. 2008). The Due

Process Clause of the Fourteenth Amendment “generally confer[s] no affirmative right to

governmental aid, even where such aid may be necessary to secure life, liberty, or property

interests of which the government itself may not deprive the individual.”            Deshaney v.

Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). Under the so-called state-

created danger exception, however, the government “may owe such an obligation if its agents in

some way assisted in creating or increasing the danger to the victim.” Matican, 524 F.3d at 155

(internal quotation marks omitted). Even if this exception applies, a plaintiff “must show that the

[defendants’] behavior was so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.” Id. (internal quotation marks omitted).

       As we observed in Matican, “[i]n applying the state-created danger principle, we have

sought to tread a fine line between conduct that is passive (and therefore outside the exception)

and that which is affirmative (and therefore covered by the exception).” Id. at 157 (internal

quotation marks omitted). Here, because there was no evidence that Captain May had any


                                                4
knowledge that Celtruda posed a danger to anyone, let alone that he had a propensity to start

fires, Captain May’s conduct falls squarely on the passive side of the ledger. Cf. id. (discussing

examples of affirmative conduct). Indeed, even if Captain May had some inkling that Celtruda

was dangerous, Appellants alleged only that Captain May should have done more to ensure the

safety of the general public. We have made clear, however, that “[i]t is not enough to allege that

a government actor failed to protect an individual from a known danger of . . . harm or failed to

warn the individual of that danger.” Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007).

       In addition, Appellants cannot show, as they must, that Captain May’s “behavior was so

egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”

Matican, 524 F.3d at 155 (internal quotation marks omitted). Captain May’s conduct could be

described, at most, as merely negligent. Negligently inflicted harm, however, “is categorically

beneath the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U.S.

833, 849 (1998); see Matican, 524 F.3d at 158 (same).

       C. Award of Fees and Costs to Defendants

       We “review an order imposing Rule 11 sanctions for abuse of discretion.” Kiobel v.

Millson, 592 F.3d 78, 81 (2d Cir. 2010). A party may be liable for sanctions under Federal Rule

of Civil Procedure 11(c)(1) for, inter alia, submitting a motion or other paper that is “presented

for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the

cost of litigation.” Fed. R. Civ. P. 11(b)(1). “Rule 11 provides a vehicle for sanctioning an

attorney, a client, or both.” United States v. Int’l Bhd. of Teamsters, Warehousemen & Helpers

of Am., AFL-CIO, 948 F.2d 1338, 1343 (2d Cir. 1991).

       The district court did not exceed the bounds of its discretion in awarding costs and

attorneys’ fees to the defendants for their efforts to correct the court’s impression of Ms.


                                                5
Chipperini’s health status. The district court permissibly concluded that Ms. Chipperini was not

forthcoming about the true state of her health at the time she moved for a continuance of the trial.

In contrast to the reports submitted by Ms. Chipperini’s doctors, videotapes showed that she had

been able to travel and move about the Town of Groton around the time she was supposedly

“unable to perform even the simplest activities of daily activity.” App’x 185. Based on this

evidence, the court reasonably found limited sanctions were necessary. See Fed. R. Civ. P.

11(c)(1).2

       D. Preclusion of Appellants’ Damages Experts

       Appellants contend that, in the event of a remand, we should reverse the district court’s

decision to exclude two of their experts, both of whom would have testified that the damages

incurred by Appellants exceeded $7 million. Given there is no basis for a remand, we need not

address this argument. In any event, we do not view the district court’s exclusion of Appellants’

experts as an abuse of discretion. See Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256,

264 (2d Cir. 2002) (observing that we review for abuse of discretion a district court’s

determination to admit or exclude expert testimony).          Accordingly, there is no merit to

Appellants’ challenge to the award of costs associated with their presentation of a new expert.




2
  Although Appellants suggest that the district court should have held an evidentiary hearing, we
have “rejected the notion that the imposition of sanctions pursuant to Rule 11 requires an
evidentiary hearing.” Int’l Shipping Co., S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 392 (2d Cir.
1989). In any event, before imposing sanctions, the district court afforded Appellants several
opportunities to be heard on the issue.
                                                 6
       We have considered all of Appellants’ arguments and conclude that they are without

merit. We therefore AFFIRM the judgment of the district court.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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