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Simone v. Golden Nugget Hotel and Casino

argued: January 5, 1988.

ROBERT F. SIMONE, APPELLANT
v.
GOLDEN NUGGET HOTEL AND CASINO, TRADING AS G.N.A.C. CORP., APPELLEE; ROBERT F. SIMONE, APPELLEE V. GOLDEN NUGGET HOTEL AND CASINO, TRADING AS G.N.A.C., CORP., APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 82-1450.

Sloviter, Hutchinson and Rosenn, Circuit Judges.

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

The appeal and cross-appeal before us arise from an action brought by plaintiff-appellant Robert F. Simone against defendant-appellee Golden Nugget Hotel and Casino (Golden Nugget) for assault and battery, false imprisonment, malicious prosecution and abuse of process. The action was brought by Simone in the Philadelphia Court of Common Pleas and removed by Golden Nugget to the United States District Court for the Eastern District of Pennsylvania based upon diversity of citizenship. 28 U.S.C. §§ 1332, 1441(a) (1982).

Two jury trials have been held in this case. In the first, the jury found in favor of Simone on his false imprisonment and abuse of process claims, awarding him $150,000 in compensatory damages and $1,000,000 in punitive damages. However, the district court granted judgment notwithstanding the verdict on the abuse of process claim and ordered a new trial on the false imprisonment claim. In the second trial, the jury returned a verdict in favor of the Golden Nugget on false imprisonment. Simone moved for judgment notwithstanding the verdict or, in the alternative, a new trial. The district court denied these motions.

Simone appeals from the orders entered by the district court in each of these trials. The Golden Nugget cross-appeals, asserting various errors by the district court in the first trial, for the purpose of preserving its appellate rights in the event we accept any of Simone's arguments on his appeal. We have jurisdiction over the district court's order finally resolving this litigation in the Golden Nugget's favor by virtue of 28 U.S.C. § 1291 (1982). For the reasons that follow, we will affirm.

I

In the early morning of August 24, 1981, a floor person at the Golden Nugget called security for assistance at one of the Casino's blackjack tables. Security Sergeant Dixon determined when he arrived at the table that two patrons should be asked to leave the casino. When he told them to leave, they began walking towards an exit, but then entered the Rangoon Saloon, a lounge area adjacent to the casino floor. Sergeant Dixon called Security Captain Long to report what was happening. Either at the entrance to or in the Rangoon Saloon, appellant Simone asked Sergeant Dixon what the problem was with the two patrons and said that one or both were his clients. Simone was told their problem was none of his business. By this time Captain Long was at the scene. Long decided to formally evict Simone, the two men who had earlier been asked to leave the casino, and another man who had joined this group.*fn1

The four were escorted by seven or eight security guards from the Rangoon Saloon to a hallway and then into a service elevator area. The doors to this area were then closed and possibly barred. By all accounts, there was much pushing and shoving. Simone contends he was thrown into the elevator with such force he hit the back wall and slid to the floor. Sergeant Dixon testified he pushed Simone into the elevator after Simone charged at him.*fn2 The elevator malfunctioned and its doors opened back up into the service area. The guards then escorted the four men out to the valet parking area. Adjacent to the parking area was a stairway that led to the security command office where formal evictions took place.*fn3

Several Atlantic City police officers were in the valet parking area.*fn4 The four were turned over to the police with a request that they be arrested. A struggle ensued among the four men and the police. The police handcuffed the four and took them to the police station.

Captain Long directed Sergeant Dixon and Officer Palmieri to go to the police station to file complaints against the four men. Dixon and Palmieri gave handwritten, signed statements to the police, and then signed complaint forms in blank. The police later typed formalized charges on the signed complaint forms. These formal complaints said that Simone struck the two security guards about the face and body. This was contrary to the written statements the security guards had given the police when they signed the complaints.

At the criminal trial on these assault charges, both Dixon and Palmieri testified in accordance with their written statements that Simone had not struck them about the face and body.*fn5 Simone was acquitted.

Simone then brought suit against the Golden Nugget for false imprisonment, assault and battery, malicious prosecution and abuse of process. The jury found in favor of Simone on the false imprisonment and abuse of process claims, and awarded him $150,000 in compensatory damages and $1,000,000 in punitive damages.*fn6 Each party filed post-trial motions requesting judgment n.o.v. or a new trial on the issues decided in favor of the other. The district court granted judgment n.o.v. on the abuse of process claim, ordered a new trial on the false imprisonment claim and denied the remainder of the parties' motions.

At the second trial, the jury found in favor of the Golden Nugget on the false imprisonment claim. Simone filed a motion for judgment n.o.v. or a new trial on this issue, which the district court denied. This appeal and cross-appeal followed.

With respect to the first trial, Simone claims the district court erred in (1) denying his post-trial motions for judgment n.o.v. as to malicious prosecution and assault and battery, (2) granting judgment n.o.v. to the Golden Nugget on the abuse of process claim, and (3) ordering a new trial on his false imprisonment claim. He contends the district court also erred in denying his motion for judgment n.o.v. or a new trial on false imprisonment after the second trial. Appellee Golden Nugget asks us to affirm the second jury's finding in its favor as to false imprisonment. Alternately, it asserts that the district court properly granted judgment n.o.v. on abuse of process after the first trial and did not abuse its discretion in ordering a new trial on false imprisonment.

II

In reviewing the district court's rulings on the parties' motions for judgment n.o.v., we apply the same standard as the trial court. Berndt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 258 (3d Cir. 1986). We are required "to review the record in this case in the light most favorable to the non-moving party, . . . and to affirm the judgment of the district court . . . unless the record is 'critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief.'" Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 921 (3d Cir. 1986) (quoting Dawson v. Chrysler Motors Corp., 630 F.2d 950, 959 (3d Cir. 1980), cert. denied, 450 U.S. 959, 67 L. Ed. 2d 383, 101 S. Ct. 1418 (1981)).

In general, we review a district court's decision to grant a new trial for abuse of discretion. Berndt, 789 F.2d at 258. If, however, the court's decision is based upon its application of a legal precept, our review is plenary. Link v. Mercedes-Benz, 788 F.2d at 921. There is an abuse of discretion within the meaning of Federal Rule of Civil Procedure 59 "when the action of the trial judge is clearly contrary to reason and not justified by the evidence." Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir. 1977) (quoting Springfield Crusher, Inc. v. Transcontinental Ins. Co., 372 F.2d 125, 126 (3d Cir. 1967)).

III

In the first trial, the jury found that Simone had not proven his claims of assault and battery and malicious prosecution. See supra note 6. For the following reasons we conclude that the district court properly denied Simone's motions for judgment n.o.v. as to these claims.*fn7

A.

Simone contends that there is no rational basis for the jury's finding against him on his assault and battery claim because it "cannot be denied" that he was "physically grabbed" and taken to the service elevator area. Appellant's brief at 29. However, as noted by the district court, Simone's account of the events of that morning was disputed. App. at 19a-20a. Sergeant Dixon denied picking Simone up and throwing him into the elevator. App. at 246a-247a, 260a-265a. He said that Simone was loud and used offensive language in the Rangoon Saloon, that he and other guards escorted Simone and the other men from the Rangoon Saloon and that he pushed Simone towards the elevator in response to Simone's attack upon him. App. at 243a-245a, 256a-265a.

It was the jury's function to assess the credibility of witnesses. Bearing this in mind, and viewing the evidence in the light most favorable to the Golden Nugget, in whose favor the jury found, we determine the jury could have found that any touching of Simone by security guards was justified under the circumstances. A casino may exclude disorderly patrons from its premises. Uston v. Resorts Int'l Hotel, Inc., 89 N.J. 163, 173, 445 A.2d 370, 375 (1982).*fn8

B.

Simone contends he was entitled to judgment n.o.v. on his malicious prosecution claim at the first trial because the evidence indisputably shows that he was prosecuted unsuccessfully for an assault he did not commit, on the basis of complaints filed at the direction of the Golden Nugget that were signed in blank by two of its security guards. We disagree.

The jury was instructed properly on the elements of the tort of malicious prosecution under New Jersey law. App. at 627a-631a. To show malicious prosecution arising out of a criminal prosecution, a plaintiff must establish:

(1) that the criminal action was instituted by the defendant against the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of probable cause for the proceeding, and (4) that it was terminated favorably to the plaintiff.

Lind v. Schmid, 67 N.J. 255, 262, 337 A.2d 365, 368 (1975). And see Voytko v. Ramada Inn of Atlantic City, 445 F. Supp. 315, 322 (D.N.J. 1978).

With respect to element four, the jury was directed to find that the criminal proceeding against Simone did terminate favorably to him. The evidence bearing on the remaining elements showed that Dixon and Palmieri went to the Atlantic City Police Station while on duty, at the direction of Captain Long, to file charges against Simone. Both Dixon and Palmieri testified that they signed complaint forms in blank and that the charges typed in by the police were not correct.

Viewing this evidence and all justifiable inferences from it in favor of the Golden Nugget, we conclude the jury could have found that Simone failed to prove the requisite malice.*fn9 The discrepancy between the formal complaint and the statements given by Dixon and Palmieri was the only evidence produced by Simone which could have demonstrated malice on the part of the Golden Nugget in initiating the criminal prosecution. Because the record shows the security guards gave the police written statements setting forth a correct version of the facts on which a charge could have been based, but the police ignored or at least embellished them in filling in the blank complaints, the jury could have found that the error was attributable to the Atlantic City police and not to the guards or the Golden Nugget. See Mondrow v. Selwyn, 172 N.J. Super. 379, 386, 412 A.2d 447, 450-51 (App. Div.) (suggesting that malice would not be attributed to defendant who filed an inappropriate charge, when he "at least in part relied on police advice"), certif. denied, 84 N.J. 449, 420 A.2d 347 (1980). Thus, the jury had a rational basis for its finding that there was no malicious prosecution.

IV

The critical issue as to the first trial is the propriety of the district court's granting of judgment n.o.v. on Simone's abuse of process claim. Simone correctly states that, in its opinion following the first trial, the district court erred in defining the elements of abuse of process as including lack of probable cause and in concluding that implicit in the jury's finding of no malicious prosecution was a predicate finding of probable cause that would defeat his claim for abuse of process. We agree that, under New Jersey law, absence of probable cause is not an element of abuse of process. Ash v. Cohn, 119 N.J.L. 54, 194 A. 174 (1937). The flaw in the district court's analysis in its opinion was not, however, present in its instructions to the jury at trial. Before us the Golden Nugget contends the order granting it judgment n.o.v. on abuse of process is supportable on the ground that Simone did not show it ...


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