15-365-cv
Broich v. The Incorporated Village of Southampton, et al.


                               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 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
3rd day of May, two thousand sixteen.

Present:

            DEBRA ANN LIVINGSTON,
            DENNY CHIN,
            SUSAN L. CARNEY,
                  Circuit Judges.
_____________________________________

CHRISTOPHER BROICH,

                             Plaintiff-Appellant,

                   v.                                                                 15-365-cv

THE INCORPORATED VILLAGE OF SOUTHAMPTON, ET
AL.,

                             Defendants-Appellees,

BONNIE M. CANNON, INDIVIDUALLY AND AS TRUSTEE
OF THE INCORPORATED VILLAGE OF SOUTHAMPTON, ET AL.,

                             Defendants.

_____________________________________

For Plaintiff-Appellant:                                    CHRISTOPHER BROICH, pro se; Southampton, N.Y.
For Defendants-Appellees:                        JELTJE DEJONG; Devitt Spellman Barrett, LLP,
                                                 Smithtown, N.Y.
.
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Christopher Broich (“Broich”), proceeding pro se, appeals a judgment

of the United States District Court for the Eastern District of New York (Wexler, J.), entered

January 13, 2015, following a jury verdict in favor of Defendants-Appellees on Broich’s claim that

Defendants-Appellees violated 42 U.S.C. § 1981 when they failed to promote him to the position

of detective sergeant. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       I.         Scope of the Appeal

       As an initial matter, because Broich did not file a new or amended notice of appeal

following the district court’s denial of his motion for a new trial, that ruling is not before this

Court. See Fed. R. App. P. 4(a)(4)(B)(ii); Sorensen v. City of New York, 413 F.3d 292, 295–96

(2d Cir. 2005).

       II.        Allegedly Prejudicial Comments by Trial Court Judge

       Broich argues that the trial judge’s conduct was prejudicial, pointing to four incidents in

particular. First, during preliminary instructions to the jury, the trial judge stated that he was

“known as the fastest judge around,” “ha[d] time limits,” and required attorneys “to get right to the

point.” Appellant’s App. 2. Second, the trial judge commented that the case was ten years old

and had not yet been tried, though through no fault of either party. Third, the trial judge allowed

Broich and his counsel to discuss whether Broich would give rebuttal testimony for three minutes

instead of the requested five minutes. And finally, the trial judge, during a colloquy with counsel

that took place outside the presence of the jury, referenced the possibility of sanctioning Broich,
but reserved decision on whether to sanction and ultimately never returned to the issue.

       When “‘reviewing a challenge to a trial judge’s conduct, we determine not whether the trial

judge’s conduct left something to be desired,’ but rather, in light of the record as a whole, ‘whether

the judge’s behavior was so prejudicial that it denied a party a fair, as opposed to a perfect, trial.’”

Manganiello v. City of New York, 612 F.3d 149, 169 (2d Cir. 2010) (alteration omitted) (quoting

Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 98 (2d Cir. 1998)). “[I]t is only after an

examination of the entire record that we can come to a conclusion about the conduct of the district

court.” United States v. Manko, 979 F.2d 900, 905–06 (2d Cir. 1992) (quoting United States v.

Mazzilli, 848 F.2d 384, 389 (2d Cir. 1988)). We identify no basis for reversal here, as the

challenged conduct falls far short of denying Broich a fair trial.

       III.    Evidentiary Rulings

       Broich also challenges the district court’s ruling not to permit into evidence a video of

Defendant-Appellee Mark Epley (“Epley”), then a candidate for mayor, participating in a June

2005 debate.      In the video, Epley discusses the promotion of Herman Lamison, an

African-American detective who Broich contends was less qualified than Broich, to the position of

detective sergeant. He also challenges a number of the district court’s rulings on objections as to

Broich’s own trial testimony. Typically, we review a district court’s evidentiary rulings for abuse

of discretion. Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007). But where, as here, a party fails to

make contemporaneous objections to the evidentiary rulings, we either decline to review the

unpreserved challenges, or review the challenges for plain error, which we “invoke[] with extreme

caution in the civil context.” See Pescatore v. Pan Am. World Airways, Inc., 97 F.3d 1, 18 (2d

Cir. 1996) (quoting United States v. Carson, 52 F.3d 1173, 1188 (2d Cir. 1995)). “Only where an


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unpreserved ‘error is so serious and flagrant that it goes to the very integrity of the trial’ will a new

civil trial be warranted.” Id. (alteration omitted) (quoting Brenner v. World Boxing Council, 675

F.2d 445, 456 (2d Cir. 1982)).

        We conclude that the district court’s evidentiary rulings were not plainly erroneous. The

video was irrelevant because Lamison was promoted before the mayoral debate took place,

Epley’s uncontroverted testimony established that he was not elected mayor until after Lamison

had been promoted, and Epley was not otherwise involved in the decision to promote Lamison.

See Fed. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of consequence in determining

the action.”). As for Broich’s various challenges to the district court’s rulings on objections

during Broich’s own testimony, the district court did not plainly err in sustaining the objections, as

the testimony objected to — calling for Broich’s personal opinion, interpretation of a police

department policy, description of matters stated in the press, and discussion of claims dismissed

before trial, among other things — was either irrelevant or hearsay. See id.; Fed. R. Evid. 801(c)

(defining “hearsay” as a statement that “the declarant does not make while testifying at the current

trial or hearing” and “a party offers in evidence to prove the truth of the matter asserted in the

statement”). Accordingly, none of the evidentiary rulings caused such prejudice as to affect the

integrity of the trial.




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       We have considered all of Broich’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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