15-2049
Pistolesi v. Calabrese

                     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.

         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 1st day of December, two thousand sixteen.

    PRESENT: DENNIS JACOBS,
             ROSEMARY S. POOLER,
                           Circuit Judges.
             GEOFFREY W. CRAWFORD,*
                           District Judge.

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    RENATO PISTOLESI, ALLTOW, INC.,
    ACTION AUTOMOTIVE COLLISSION &
    MECHANICAL INC.,
             Plaintiffs-Appellants,

                 -v.-                                               15-2049-cv

    CARL CALABRESE, individually, MARTIN
    NOVICK, individually, MATTHEW
    ALEXANDER, individually, JENNIFER
    NIZNIK, individually, PAUL ITALIANO,
    individually, ALAN WEITLICH,


           *
          Judge Geoffrey W. Crawford, United States District
    Court for the District of Vermont, sitting by designation.
                                             1
individually, JOHN VISENTIN, VILLAGE
OF WAPPINGERS FALLS, DENISE CALABRESE
         Defendants-Appellees,

BRIAN SMITH, individually, JOSH
KEMLAGE, individually, J. ERNS,
individually, SEAN MCNEIL,
individually, M.A. RODRIGUEZ,
individually, RAFAEL TORRES,
individually, P. CAPPARELLI,
individually, MARK LIBERMANN,
individually, MARK KEMLAGE,
individually,
         Defendants.
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FOR APPELLANT:             MICHAEL H. SUSSMAN, Sussman &
                           Watkins, Goshen, NY.

FOR APPELLEES:             MONTGOMERY L. EFFINGER,
                           O’Connor, McGuinness, Conte,
                           Doyle, Oleson, Watson & Loftus
                           LLP, White Plains, NY.

     Appeal from the judgment of the United States District
Court for the Southern District of New York (Seibel, Aspen,
JJ.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.

     Plaintiffs-appellants Renato Pistolesi, Alltow, Inc.,
and Action Automotive Collision and Mechanical, Inc., appeal
from the judgment of the United States District Court for
the Southern District of New York (Seibel, Aspen, JJ.). We
assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues presented for review.

     1. Appellants request a new trial on their First
Amendment-based retaliation claim, arguing that the district
court improperly excluded evidence. Appellants complain
that the district court wrongly excluded (a) three exhibits
purporting to demonstrate the defendants’ disparate
treatment of Action and Alltow compared to other towing
companies, and (b) testimony of a former employee of the

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Village of Wappingers Falls (“the Village”), purporting to
demonstrate Police Commissioner Renato Calabrese’s animus
toward Pistolesi. The district court excluded the evidence
on relevance grounds.

     “We review a district court’s evidentiary rulings
deferentially, mindful of its superior position to assess
relevancy . . . .” United States v. Abu-Jihaad, 630 F.3d
102, 131 (2d Cir. 2010). We will reverse a district court
on an evidentiary issue only if it commits an abuse of
discretion, which requires us to find that “the trial judge
ruled in an arbitrary and irrational fashion.” United
States v. Dhinsa, 243 F.3d 635, 649 (2d Cir. 2001) (quoting
United States v. Pipola, 83 F.3d 556, 566 (2d Cir. 1996)).

     a. Appellants argue that the documentary exhibits were
relevant because they provided circumstantial support for
their assertion that the Village removed Alltow from the Tow
List because of Pistolesi’s protected speech.1 The exhibits
relate to Calabrese’s treatment of two instances in which
the Village received complaints about other businesses on
the Tow List. Pistolesi argues that the exhibits
demonstrate that Calabrese dealt with these companies more
leniently than he did with Alltow after a customer
complained about Alltow’s service, thereby suggesting that
Calabrese’s treatment of Alltow was motivated by retaliatory
animus.

     However, the complaints about these two other companies
differ in material respects from the complaint about Alltow.
For example, the total amount of Alltow’s challenged bill
was considerably higher than the amounts charged by the
other companies; and the owners of the other companies took
corrective measures, such as reprimanding their employees or
lowering the total bill, whereas Pistolesi took no such


    1
       Appellants also assert that the excluded documents
and testimony were relevant because they would undermine a
defense potentially available to the defendants-appellees.
The appellants contend that the evidence would be relevant
to both this defense and the appellants’ prima facie
retaliation claim “[f]or similar reasons.” Appellant’s
Opening Br., at 20. Since we find that the evidence can be
properly excluded as irrelevant to the appellants’
retaliation claim, the same is true regarding the
defendants-appellees’ possible defense.
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measures. Because of these factual differences, we cannot
say that the district court’s conclusion that the exhibits
were irrelevant to the First Amendment claim was “arbitrary
or irrational.” Dhinsa, 243 F.3d at 649.

     Even were we to decide that the exhibits were relevant,
we would not order a new trial. Because of the marginal
probative value of the evidence, and the need to litigate
the particulars of what occurred in these other transactions
and complaints, the district court could properly exclude
this evidence on the basis that its probative value would be
substantially outweighed by undue delay. See Fed. R. Evid.
403.

     b. The district court also did not abuse its
discretion by excluding as irrelevant the testimony of John
Fenton, a former Village employee. Pistolesi asserts that
Fenton would testify that, soon after Pistolesi’s protected
speech, Calabrese called Pistolesi a “scumbag” and said he
“intended to run Mr. Pistolesi out of the village.” J.
App’x at 1433-34. However, the district court was skeptical
that Fenton’s testimony would be probative of whether
Pistolesi’s protected speech caused Alltow’s removal from
the Tow List. This skepticism is justified by deposition
testimony in which Fenton stated that Calabrese made
derogatory comments about Pistolesi because Pistolesi “was
consistently breaking the law with respect to the zoning--or
. . . the towing list.” Id. at 1433. Because Fenton
suggested that Calabrese’s animus toward Pistolesi was
driven by factors other than Pistolesi’s protected speech,
the district court’s exclusion of Fenton’s testimony did not
abuse discretion.

     Since we find no reversible error as to any of the
district court’s evidentiary rulings, appellants are not
entitled to a new trial on their First Amendment claim.

     2. Action appeals the district court’s grant of
summary judgment on its Equal Protection Clause claim. We
“review a . . . grant of summary judgment de novo,
construing the evidence in the light most favorable to the
non-moving party and drawing all reasonable inferences in
its favor.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113
(2d Cir. 2005). We affirm a grant of summary judgment only
if there is no genuine dispute as to any material fact, and
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).

                             4
     Action pursues a “class of one” equal protection claim,
asserting that the appellees discriminated against it and
improperly removed it from the Tow List. To set out a valid
“class of one” claim, a plaintiff must “allege[] that [it]
has been intentionally treated differently from others
similarly situated and that there is no rational basis for
the difference in treatment.” Ruston v. Town Bd. for
Skaneateles, 610 F.3d 55, 58 (2d Cir. 2010) (quoting Village
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per
curiam)). The plaintiff must demonstrate that “no rational
person could regard the circumstances of the plaintiff to
differ from those of a comparator to a degree that would
justify the differential treatment on the basis of a
legitimate government policy.” Id. at 59-60 (quoting
Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir.
2006)).

     Action failed to identify sufficiently similar
comparators. After Action’s removal from the Tow List, only
Alltow and one other company remained. That other company
is therefore the only comparator upon which Action can base
its class-of-one claim. But Action is co-owned by
Pistolesi, who also owns another company on the Tow List
(Alltow), whereas the owner of the other company does not
own multiple businesses on the list. A factfinder could
conclude that the Village removed Action from the Tow List
to avoid the unfairness of having a company owned by
Pistolesi being called in sequence to perform a tow twice as
often as the non-Pistolesi-owned company. Contrary to
Action’s assertions, it is irrelevant whether a desire for
fairness was the actual motivation of the Village’s removal
decision.2 Consequently, Action has not identified a



    2
       In class-of-one claims, a plaintiff is required to
identify comparators that are “prima facie identical” in
order to “provide an inference that the plaintiff was
intentionally singled out for reasons that so lack any
reasonable nexus with a legitimate governmental policy that
an improper purpose . . . is all but certain.” Neilson v.
D’Angelis, 409 F.3d 100, 105 (2d Cir. 2005), overruled on
other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir.
2008). Since Action failed to identify sufficiently similar
comparators, we cannot say that it is “all but certain” that
the Village’s decision to remove Action was based on an
improper purpose.
                             5
sufficiently similar comparator to base its class-of-one
claim.

     3. Action appeals the district court’s refusal (in a
separate order) to grant an injunction ordering the Village
to reinstate it to the Tow List, even though the district
court had held preempted a Tow List regulation that Action
had challenged. The district court justified its refusal to
grant an injunction solely on the ground that doing so would
constitute retroactive relief, in conflict with Ex parte
Young, 209 U.S. 123 (1908), which allows only prospective
injunctive relief for constitutional violations. See
Edelman v. Jordan, 415 U.S. 651, 664 (1974).

     The relief of reinstating Action to the Tow List would
be prospective, not retroactive. See Dwyer v. Regan, 777
F.2d 825, 836 (2d Cir. 1986) (holding reinstatement to
government employment is prospective relief). Therefore, we
vacate the district court’s order refusing to reinstate
Action to the Tow List, and remand the case to the district
court to reconsider Action’s request for an injunction. We
express no opinion on the merits of Action’s request.

     For the foregoing reasons, we hereby AFFIRM IN PART,
AND VACATE AND REMAND IN PART, the judgment of the district
court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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