United States District Court, W.D. Pennsylvania
losing a jury verdict finding he violated constitutional
rights through excessive force, a defendant off-duty police
officer may wish he chose another strategy including suing
his employer City for indemnity if the jury found he acted
under color of state law. Following the verdict, the
defendant may separately seek indemnity from his employer in
a court of competent jurisdiction. But we cannot allow the
parties, solely in the hope of finding a deeper pocket to pay
the pending judgment, to amend judgments and travel back in
time to allow the defendant to add the state law indemnity
claim in his Answer filed over two years ago. Defendant
police officer and his competent experienced counsel chose
not to sue his employer City for indemnity. The officer
denied acting under of color of state law and the jury
disagreed. This case is now over with no pending appeals. We
deny the parties' joint motion for a Rule 60(b)(6)
amendment to re-open our Judgment in the accompanying Order
November 7, 2014, Shane McGuire sued Pittsburgh Police
Officer Colby Neidig for excessive force under 42 U.S.C.
§ 1983 and related state law claims following an
altercation between Officer Neidig (while off-duty) and Mr.
McGuire resulting in injuries to Mr. McGuire.
Neidig, through experienced counsel, simultaneously answered
the Complaint and moved to dismiss the §1983 claim,
arguing he did not act under color of state law when he
caused Mr. McGuire's injuries while off
duty. Officer Neidig did not crossclaim against
the City for indemnification.
January 30, 2015, Mr. McGuire filed an Amended Complaint with
more factual allegations. Officer Neidig answered the Amended
Complaint and moved to dismiss, maintaining his argument he
did not act under color of state law. Judge Cercone denied his
motion, finding Officer Neidig's alleged actions
consistent with the actions of a police officer and
satisfying the color of state law requirement on a pleadings
standard. At no time during the pleadings stage did
Officer Neidig argue the City had an obligation to indemnify
him, and despite having multiple opportunities to crossclaim
for indemnification, Officer Neidig did not do so.
12, 2016, Officer Neidig moved for summary judgment, arguing
insufficient facts to find he acted under color of state
We denied the motion, finding "the totality of the
circumstances permit the reasonable inference Officer Neidig
committed the alleged misconduct while 'clothed with the
authority of state law.'"
a jury trial resulting in a verdict for Mr. McGuire on all
claims. As to the §1983 claim, the jury found Mr. Neidig
acted under color of state law, used excessive force, and
caused Mr. McGuire injuries. We entered judgment in favor of
Mr. McGuire and against Officer Neidig for $75, 000 and
awarded over $170, 000 in attorney's fees and costs to
Mr. McGuire's counsel.
parties now jointly move for relief from the jury verdict and
judgment under Federal Rule of Civil Procedure 60(b)(6).
According to the parties, the City refuses to indemnify Mr.
Neidig. The parties request we reopen the case to allow
Officer Neidig to amend his February 9, 2015 Answer to Mr.
McGuire's Amended Complaint to crossclaim for indemnity
against the City.
seeking relief under Rule 60(b)(6) must demonstrate
"extraordinary circumstances" justifying the
reopening of judgment. Extraordinary circumstances generally
require showing "an 'extreme' and
'unexpected' hardship will result" absent relief
extraordinary circumstances rarely exist when a party seeks
relief from a judgment that resulted from the party's
deliberate choices." For example, our Court of
Appeals held a change in the decisional law following a
parties' stipulation of dismissal of claims affected by
the change did not constitute an extraordinary circumstance,
noting the parties knew there were pending legal challenges
relevant to the dismissed claims. Similarly, the Supreme
Court refused to grant Rule 60(b)(6) relief to a
denaturalized German citizen who chose to not appeal the
denaturalization order, even though the German citizen's
brother successfully appealed his denaturalization
order. The Court explained, "His choice
was a risk, but calculated and deliberate and such as follows
a free choice. Petitioner cannot be relieved of such a choice
because hindsight seems to indicate to him that his decision
not to appeal was probably wrong."
Neidig chose not to sue the City for indemnification.
Experienced defense counsel represented him at every step.
His choice is consistent with his long-held argument he acted
as a private citizen and not under the color of state law.
Whatever the reason for his decision to not sue the City for
indemnification, his choice "was a risk, but calculated
and deliberate." Although a judgment against Officer
Neidig may impose a hardship upon him and Mr. McGuire may not
be able to recover his judgment from Officer Neidig, these
effects result from decisions made during the ...