Geraci v. City of Phila.

Full title: AMANDA GERACI v. CITY OF PHILADELPHIA, et al

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Date published: Mar 14, 2016

CIVIL ACTION NO: 14-5264 (E.D. Pa. Mar. 14, 2016)

Opinion

CIVIL ACTION NO: 14-5264

03-14-2016

AMANDA GERACI v. CITY OF PHILADELPHIA, et al

KEARNEY, J.

ORDER-MEMORANDUM

AND NOW, this 14^th day of March 2016, upon consideration of the Motion to amend the February 19, 2016 Order and vacate the February 24, 2016 Order (ECF Doc. No. 52), and upon the considered exercise of our discretion regarding the entry of a Fed. R. Civ. P. 54(b) Judgment and then placing Ms. Geraci's Fourth Amendment claim in administrative suspense, it is ORDERED the Motion (ECF Doc. No. 52) is GRANTED in part and DENIED in part:

1. We VACATE the February 24, 2016 dismissal Order (ECF Doc. No. 50) upon the parties' consent; as the parties now wish to proceed to trial on Ms. Geraci's remaining Fourth Amendment excessive force claim in Count II, the Court shall hold the trial scheduling telephone conference originally scheduled for February 23, 2016 (ECF Doc. No. 47) with all counsel on March 18, 2016 at 8:45 a.m. Ms. Geraci's counsel shall initiate this call and timely call Chambers at 267-299-7680 when all counsel are on the line; and,

2. We deny the motion to amend the February 19, 2016 Order (ECF Doc. No. 45) and decline to enter partial judgment under Fed.R.Civ.P. 54(b) in favor of Defendants and against Ms. Geraci on her First Amendment Retaliation (Count I) claim.

Analysis

The parties initially dismissed Ms. Geraci's Fourth Amendment claim of excessive force without prejudice believing they could appeal our February 19, 2016 Order granting summary judgment on her First Amendment claim and, if necessary, return to this Court to try her excessive force claim. Now properly concerned the Court of Appeals may not assume appellate jurisdiction absent dismissal of the Fourth Amendment claim with prejudice, and thus ending the case here, the parties now ask we enter final judgment on the February 19, 2016 partial summary judgment Order and place Ms. Geraci's Fourth Amendment excessive force claim in administrative suspense during the appeal.¹

1 Sullivan v. Pacific Indemnity Co., 566 F.2d 444, 445-446 (3d Cir. 1977).

A. We decline to delay Ms. Geraci's Fourth Amendment trial.

Ms. Geraci filed suit on September 15, 2014 seeking damages for, among other things, Officers Brown's, Barrow's, Jones' and Smith's excessive force upon her on September 21, 2012. Discovery is complete and the Court scheduled trial for this Spring. This Court does not place matters in administrative suspense absent extraordinary good cause. As Ms. Geraci has now decided to proceed to trial and her excessive force claim is ready for imminent trial, there is no good cause for delaying the jury's determination of whether Ms. Geraci can recover damages arising from Officers Brown's excessive force and Officers Barrows', Jones' and Smith's failure to intervene upon witnessing the alleged excessive force.

B. With an imminent trial, we decline to permit piecemeal appeals.

Exercising our discretion to justly manage disputes to resolution under Fed.R.Civ.P.1, we recognize the value of allowing partial summary judgment orders to be immediately appealable if, in our view, the piecemeal approach will best serve the parties and interests of justice. Federal Rule 54 attempts to strike a balance between our historical distaste for piecemeal appeals and allowing parties to timely obtain appellate review.² Like a dispatcher, we consider judicial administrative interests and the equities in the case in determining whether to allow discrete final judgments on less than all issues in the case.³ We have an independent obligation under Rule 54(b) and the parties' consent to piecemeal appeals does not govern.⁴

2 Berckeley Investment Group, Ltd. v. Colkitt, 455 F.3d 195, 202 (3d Cir. 2006)(citing Allis-Chalmers Corp. v. Philadelphia Elec.Co., 521 F.2d 360, 363 (3d Cir. 1975)).

3 Berckeley, 455 F.3d at 202 (citing Curtis-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8 (1980)

4 Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1003 (3d Cir. 1992); Stamatakis Indus. v. J. Walter Thompson, 944 F.2d 382, 383 (7^th Cir. 1991).

We examine whether our partial summary judgment on Ms. Geraci's First Amendment claim is a final judgment on the merits of this claim and if so, if there is no just reason for delay of an immediate appeal on this one issue.⁵

5 Berckeley, 455 F.3d at 202.

Narrow findings in our February 19 , 2016 Order.

Our February 19, 2016 findings are final as to Ms. Geraci's First Amendment claim. Ms. Geraci did not adduce evidence to sustain this claim under governing law. Unlike cases where an injured party presents a variety of disputed issues concerning her intents, Ms. Geraci adduced no evidence she expressed any concern for the police conduct. She seeks to extend the First Amendment to observing police conduct without any expressive conduct. Under her theory, merely observing police officers is expressive conduct protected by the First Amendment's speech protection. Thereafter, under her theory, if the state interferes or impedes her "right" to observe, she can sue the state actor for retaliating against her for watching them. We have not seen, and counsel has not shown us, any court extending the First Amendment rights to speech to include silent observation without expressing any challenge to the police.

We dismissed Ms. Geraci's First Amendment retaliation claim after finding no authority, from any court, recognizing such a claim under these circumstances including excessive force while she observed police activity at an early morning tracking protest. Neither our governing court of appeals nor our colleagues on this Court have addressed a claim similar to the undisputed facts involving Ms. Geraci or Mr. Fields, and we cannot find, based on the narrow undisputed facts presented by these two citizens, a First Amendment claim here.⁶ Both citizens have the imminent opportunity to redress their harm by proving their Fourth Amendment claims to the jury.

6 Our holding is narrowly tailored to the exceptionally narrow facts presented. We do not view our role as expressing an opinion on the First Amendment in any other context involving other interests, such as the press or seeking to petition the government. We review only whether these facts constitute the required expressive conduct equal to a citizen's "speech." As cited in our Memorandum, we are aware courts of appeals in other Circuits have addressed distinguishable fact situations and found, given those different facts, a citizen may sue the police for First Amendment retaliation after finding the citizen exercised a First Amendment right. See Glik v. Cunniffe, 655 F.3d 78, 79-80 (1^st Cir. 2011) (citizen "concerned that the officers were employing excessive force to effect an arrest" and then began taping an arrest on a cell phone); Smith v. City of dimming, 212 F.3d 1332, 1333 (11^th Cir. 2000)(summarily finding First Amendment right to record matters of public interest).

Reason for delaying piecemeal appeal until completing imminent trial.

After finding our February 19, 2016 partial summary judgment can be a final judgment on the extraordinarily narrow facts presented by Ms. Geraci, we now consider whether allowing an appeal on one of Ms. Geraci's two claims makes any sense given the parties will proceed to trial in the next sixty (60) days and can then appeal the final judgment order. Our Court of Appeals identifies factors to consider before allowing piecemeal appeals: 1) relationship between Ms. Geraci's two claims; 2) possibility the appellate review might be mooted by the trial verdict; 3) possibility the court of appeals might need to review the same issue a second time; 4) presence of a continuing set-off claim which could affect our First Amendment; and 5) factors such as delay, trial efficiencies, expense and the frivolity of competing claims.⁷

7 Berckeley, 455 F.3d at 203 (citing Allis-Chalmers Corp., 521 F.2d at 364).

Applying these factors, there is a close factual relationship between Ms. Geraci's First and Fourth Amendment claims. The facts surrounding both claims are intertwined, occurring over a short period of time outside of a building. The alleged First Amendment retaliation resulting in the excessive force will be described in brief testimony from Ms. Geraci and the officers. The First Amendment retaliation is, in a large part, the Fourth Amendment excessive force. The distinctions in these claims relate to whether the officers' conduct, under the jury instructions, constitutes a First and a Fourth Amendment violation. It does not make sense to have two appeals. We can foresee an immediate appeal on the First Amendment and then, depending on the Fourth Amendment verdict, a second appeal on related facts. As such, the first three factors weigh in favor of exercising our discretion to decline piecemeal appeals. There are no set-off issues arising from any claim and this factor is immaterial.

We are persuaded by the factors of delay and trial efficiencies to deny a Rule 54(b) judgment allowing a piecemeal appeal. Ms. Geraci has awaited redress from the excessive force since September 2012. She timely filed suit in September 2014. She can recover damages under either the Fourth Amendment. We cannot think of a reason why she would want to wait and possibly endure through two appeals. We will commence a relatively short jury trial in the next sixty (60) days. Ms. Geraci will not be prejudiced awaiting a scheduled trial and then appeal. She should have the ability to pursue her remedies, and the officers raise defenses, earlier rather than later. As a practical matter, the parties will be better prepared to appeal this case after a jury verdict. We find this case no different than crucially important civil rights trials where the parties are better served in completing the trial and then moving forward with one appeal to raise both First and Fourth Amendment arguments.

/s/ _________

KEARNEY, J.