         10-931-cv
         Scott v. New York City Department of Correction



                                   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 for the Second Circuit, held at the
2        Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3        on the 2nd day of November, two thousand eleven.

 4       PRESENT:
 5                   JOHN M. WALKER, Jr.,
 6                   JOSEPH M. MCLAUGHLIN,
 7                   DEBRA ANN LIVINGSTON,
 8                         Circuit Judges.
 9       __________________________________________
10
11       Collette J. Scott,
12
13                         Plaintiff-Appellant,
14
15                                   v.                                             10-931-cv

16       New York City Department of Correction,
17       Correction Officer’s Benevolent Association of the
18       City of New York Inc., Norman Seabrook, individually
19       and in his official capacity,

20                   Defendants-Appellees.
21       __________________________________________
22
23       FOR APPELLANT:                       Collette J. Scott, pro se, Magnolia, DE.


24       FOR APPELLEES:                       Elizabeth S. Natrella, Assistant Corporation Counsel, for Michael A.
25                                            Cardozo, Corporation Counsel of the City of New York, New York,
26                                            NY, for Defendant-Appellee New York Department of Correction
27
 1                                   Alan Serrins, Serrins & Associates, LLC, New York, NY, for
 2                                   Defendants-Appellees Correction Benevolent Association of the City
 3                                   of New York and Norman Seabrook


 4             Appeal from a judgment of the United States District Court for the Southern District of New

 5   York (Stein, J.).

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

 7   DECREED that the judgment of the district court is AFFIRMED.

 8             Appellant Collette J. Scott, proceeding pro se, appeals from the district court’s judgment

9    denying her motion for leave to amend the complaint and reopen discovery, partially granting

10   summary judgment in favor of the defendants, conditionally granting a motion in limine filed by

11   certain defendants, and dismissing her remaining claims pursuant to a jury verdict. We assume the

12   parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

13   appeal.

14   I.        Denial of Motion for Leave to Amend and Reopen Discovery

15             We review a district court’s decision denying leave to amend a complaint under a Fed. R.

16   Civ. P. 16 scheduling order for abuse of discretion. See Parker v. Columbia Pictures Indus., 204

17   F.3d 326, 339-40 (2d Cir. 2000). Similarly, we review discovery rulings for abuse of discretion,

18   including the denial of a motion to reopen discovery. See Petrosino v. Bell Atl., 385 F.3d 210, 232

19   (2d Cir. 2004); see also In re DG Acquisition Corp., 151 F.3d 75, 79 (2d Cir. 1998) (“[A] trial court

20   enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to discovery

21   are reversed only upon a clear showing of an abuse of discretion.”) (internal quotation marks

22   omitted).




                                                        2
 1            Here, the magistrate judge did not abuse his discretion in concluding that the apparent

 2   negligence of Scott’s former attorney was not sufficient to establish “good cause” for amending the

 3   scheduling order under Fed. R. Civ. P. 16(b). See Parker, 204 F.3d at 339-40 (adopting the holding

4    of other Circuits that “the Rule 16(b) ‘good cause’ standard, rather than the more liberal standard

5    of Rule 15(a), governs a motion to amend filed after the deadline a district court has set for

 6   amending the pleadings”); Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962) (suggesting that

 7   a party who voluntarily chooses her attorney generally “cannot . . . avoid the consequences of the

 8   acts or omissions of this freely selected agent”). Additionally, the magistrate judge did not abuse

9    his discretion in concluding that the defendants would have been prejudiced by the untimely filing

10   of an amended complaint, as they had already deposed Scott, otherwise completed discovery, and

11   moved for summary judgment, and Scott’s original complaint could not fairly be read to assert a

12   claim for gender discrimination based on unequal terms and conditions of employment.

13   Accordingly, we affirm the denial of Scott’s motion for leave to amend and to reopen discovery.

14   II.      Partial Grant of Summary Judgment

15            We review an order granting summary judgment de novo and ask whether the district court

16   properly concluded that there were no genuine issues of material fact and that the moving party was

17   entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,

18   300 (2d Cir. 2003). “In determining whether there are genuine issues of material fact, we are

19   required to resolve all ambiguities and draw all permissible factual inferences in favor of the party

20   against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)

21   (internal quotation marks omitted). However, “conclusory statements or mere allegations [are] not

22   sufficient to defeat a summary judgment motion.” Davis v. State of N.Y., 316 F.3d 93, 100 (2d Cir.

23   2002).
                                                      3
 1          Having conducted an independent and de novo review of the record in light of these

 2   principles, we affirm the district court’s summary judgment decision for substantially the same

 3   reasons stated by the magistrate judge in his thorough and well-reasoned report. On appeal, Scott

 4   has not presented a specific and discernable challenge to the district court’s summary judgment

 5   decision.

 6   III.   Motion In Limine and Jury Verdict

 7          We review evidentiary rulings for abuse of discretion, and “will reverse only if an erroneous

 8   ruling affected a party’s substantial rights.” Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124

 9   (2d Cir. 2005). Scott has offered no basis for concluding that the district court abused its discretion

10   in conditionally granting the motion in limine filed by Norman Seabrook and the Correction

11   Officers’ Benevolent Association of the City of New York, Inc (the “COBA”). The district court

12   did not abuse its discretion in concluding that the evidence at issue—the allegations of two other

13   individuals that Seabrook had sexually harassed them—was inadmissible on the ground that it was

14   offered to “prove the character of a person in order to show action in conformity therewith.” See

15   Fed. R. Evid. 404(b). Furthermore, there is no indication that Scott was prejudiced by the court’s

16   failure to make a definitive ruling on the motion prior to trial.

17          Finally, Scott has not articulated a specific challenge to the jury verdict in favor of Seabrook

18   and the COBA. To the extent that she is challenging the sufficiency of the evidence, such a

19   challenge is unpreserved, as she did not move for judgment as a matter of law following trial. See

20   Borger v. Yamaha Int’l Corp., 625 F.2d 390, 395 (2d Cir. 1980) (noting that, in the absence of a

21   motion for judgment as a matter of law, this Court is “without power to direct the District Court to

22   enter judgment contrary to the one it had permitted to stand” (internal quotation marks omitted)).

23   In any event, there was sufficient evidence to support the jury’s verdict.


                                                       4
1          We have considered Scott’s other arguments on appeal and have found them to be without

2   merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


3                                             FOR THE COURT:
4                                             Catherine O’Hagan Wolfe, Clerk

5




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