Oakley v. Dolan

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

____________________________

No. 17-cv-6903 (RJS) ____________________________

CHARLES OAKLEY,

Plaintiff,

v.

MSG NETWORKS, ET AL.,

Defendants. ____________________________

OPINION AND ORDER November 8, 2021 ____________________________

RICHARD J. SULLIVAN, Circuit Judge: After being forcibly removed from a basis, arguing that the footage conclusively Knicks basketball game at Madison Square shows its employees did not use excessive Garden in February 2017, Plaintiff Charles force. For his part, Oakley seeks leave to Oakley brought a litany of claims against file a second amended complaint adding Defendants MSG Networks, Inc.; the James Dolan as an individual defendant on Madison Square Garden Company; MSG the remaining claims. Sports and Entertainment, LLC (collectively, “MSG”); and James Dolan, the For the following reasons, Defendants’ executive chairman of MSG. On February motion for summary judgment is 19, 2020, the Court granted Defendants’ GRANTED, and Oakley’s motion to amend motion to dismiss each of Oakley’s claims. is DENIED. The Second Circuit subsequently affirmed the Court’s decision in all respects but one. I. BACKGROUND

Following the Second Circuit’s remand, A. Facts Oakley’s sole remaining claim is that MSG Charles Oakley, a former star power is liable for assault and battery because forward for the New York Knicks, attended MSG security guards used excessive force to a Knicks game at Madison Square Garden remove Oakley from the stadium. Extensive video footage documents the altercation, and MSG moves for summary judgment on that (the “Garden”) on February 8, 2017.1 (Doc. Surrounding fans, presumably sensing No. 120 ¶ 80.) During the game, Oakley something amiss from the presence of was approached by MSG security guards security, also filmed the altercation. One of and New York City Police Department those fans made a high-resolution phone (“NYPD”) officers, who physically removed recording, which included audio, from a him from the arena, purportedly because of distance of roughly 10 yards away. (Doc. his inappropriate behavior. (Doc. No. 111 No. 104, Ex. 4 (hereinafter Fan Vid.), ¶ 146.) After the incident, the Knicks available as submitted by Defendants at organization and owner James Dolan made https://nysd.uscourts.gov/sites/default/files/2 public statements claiming that Oakley was 021-11/4. YouTube - Charles Oakley Fight expelled for being drunk and verbally Meltdown NY Knicks Whole 3 minute abusive to fans and stadium staff. (Id. ¶¶ video.mp4.) The fan recording begins about 145–46.) Oakley denied that he behaved 30 seconds after Oakley is initially inappropriately. (Id. ¶ 147.) approached. (Compare Fan Vid., 0:00, with Stadium Vid., 8:18.) Oakley’s removal was captured on video by ESPN, the Garden’s stadium cameras, As the fan recording begins, Oakley is and nearby attendees in the audience. (Doc. standing, surrounded by security personnel. No. 104, Exs. 1–5.) Low-resolution, silent One MSG guard (“Guard 1”) is grasping security footage shows the beginning of the Oakley’s left bicep, trying to pull him incident: eight security personnel assemble toward the exit aisle; another (“Guard 2”) in the row where Oakley is seated. (Doc. lightly places his open hand, alternately, on No. 104, Ex. 2b (hereinafter Stadium Vid.) Oakley’s upper back and Oakley’s torso. 7:44–8:01.) The parties agree that one of (Fan Vid., 0:08–0:12.) Oakley remains able the guards requested that Oakley leave the to turn freely and walk. Oakley then shrugs building (Doc. No. 120 ¶ 117), and the off Guard 2 and turns toward his seat, but footage shows the guard and Oakley trips and falls to the ground, pulling Guard 1 conversing for several seconds before (still grasping Oakley’s bicep) forward. Oakley stands up. (Stadium Vid., 8:01– (Fan Vid., 0:13–0:14.) Within seconds, 8:16.) Oakley rises without assistance. (Fan Vid., 0:15–0:22.)

After getting up, Oakley again attempts to move back toward his seat, but is 1 The following facts are taken from the Rule 56.1 obstructed by the guards. Guard 1 has Statements filed by Defendants (Doc. No. 105) and positioned himself between Oakley and the Oakley (Doc. No. 111), as well as Defendants’ Counterstatement to Oakley’s submission (Doc. No. seat. With an open hand on Oakley’s upper 120). The Court also relies on the video exhibits arm, Guard 1 motions toward the exit aisle. appended to defense counsel’s Declaration in Support (Fan Vid., 0:25–0:29.) Oakley puts both of Defendants’ Motion for Summary Judgment (Doc. hands in the air, and Guard 1 immediately No. 104), which contain footage captured by the removes his hand from Oakley’s arm. (Fan Garden’s security cameras, ESPN, and audience members who attended the Knicks game. The Court Vid., 0:29.) Guard 2, still stationed behind has also considered the parties’ briefs in support of Oakley, places an open hand on Oakley’s and in opposition to Defendants’ Motion for torso. (Fan Vid., 0:40.) Summary Judgment (Doc. Nos. 103, 110, 118) and Oakley’s Motion for Leave to File a Second Amended Complaint (Doc. Nos. 107, 109, 117). Oakley then escalates the physical guards toward the exit and continues to confrontation: he steps toward Guard 1 with clasp the railing with both hands to maintain a finger in the guard’s face (Fan Vid., 0:41), his position. After approximately 20 chest-bumps him (Fan Vid., 0:42), and then seconds, during which an NYPD officer appears to push Guard 1’s face with his twice pries Oakley’s hands from the railing hand, causing Guard 1’s head to snap (Fan Vid., 2:47–2:59), he is finally ushered backward. (Fan Vid., 0:49.) In response, out of the stadium. Guard 2 grasps Oakley’s upper bicep and attempts to pull him backward. (Fan Vid., B. Procedural History 0:49–0:51.) Oakley turns, chops downward on the arm holding his bicep, and then twice 1. District Court forcefully shoves Guard 2, causing the guard On September 12, 2017, Oakley filed a to stumble back several paces and prompting complaint asserting defamation, slander, nearby fans to gasp. (Fan Vid., 0:53–0:58.) abuse of process, and denial of public At this point, several other security accommodation claims against both Dolan personnel finally step in and grab both of and MSG. (Doc. No. 1 ¶¶ 77–83, 89–93, Oakley’s arms. (Fan Vid., 0:59–1:01.) The 104–20.) This original complaint also group hoists, pushes, and pulls Oakley asserted assault and battery claims against toward the exit aisle, with Oakley initially MSG alone, alleging that stadium guards remaining on his feet amidst the huddle of used physical force without Oakley’s security personnel. (Fan Vid., 1:01–1:06.) consent to eject him from the premises. (Id.

¶¶ 94–99.) After being guided several yards and onto the exit ramp, Oakley again falls – On February 9, 2018, Oakley filed an despite at least one guard’s effort to keep amended complaint (Doc. No. 36), which him upright – this time in the aisle below the left unchanged most allegations relating to railing where the fan videographer is assault and battery but inserted additional standing. (Fan Vid., 1:10.) From an angle details that alleged the guards used directly above the scene, the video shows excessive force in removing him. (Id.) The security personnel crowd around Oakley and Court stayed discovery pending resolution repeatedly tell him to “get up” and “stand of Defendants’ motion to dismiss, which up.” (Fan Vid., 1:15–1:35.) Several was filed on March 30, 2018. (Doc. No. security personnel try to grab Oakley’s 41.) wrists to pull him up, but he retracts his arms against his body to resist their efforts. On February 19, 2020, the Court issued (Fan Vid., 1:15–1:40.) At one point, Oakley an opinion and order granting Defendants’ audibly states, “I don’t want to stand up.” motion to dismiss all of Oakley’s claims. (Fan Vid., 1:34.) While lying in the aisle, See Oakley v. Dolan, No. 17-cv-6903 (RJS), Oakley protests to the guards that he did not 2020 WL 818920, at *1 (S.D.N.Y. Feb. 19, do anything wrong; he also rebuffs their 2020). Regarding Oakley’s assault and efforts to help him up, repeating several battery claims, the Court held that “[t]he law times, “I don’t need no help.” (Fan Vid., is clear that the MSG Defendants had the 2:22–2:27.) After more than 75 seconds on right to expel Oakley from the Garden and the ground, Oakley eventually pulls himself that his refusal to leave justified their use of up using the stadium railing. (Fan Vid., reasonable force to remove him. . . .” Id. at 2:31.) But he then refuses to accompany the *13. The Court explained that the only issue with respect to assault and battery was Moreover, the Second Circuit noted “whether Defendants used unnecessary force that, “[b]ecause of its intensely factual or intended to injure [Oakley].” Id. nature, the question of whether the use of Presuming the truth of Oakley’s allegations, force was reasonable under the as required at that stage of the proceedings, circumstances is generally best left for a jury Ferran v. Town of Nassau, 11 F.3d 21, 22 to decide,” id. at 284 (quoting Holland v. (2d Cir. 1993), and without consulting City of Poughkeepsie, 935 N.Y.S.2d 583, extrinsic evidence such as the videos, the 588 (2d Dep’t 2011)), and that “[e]ven in the Court nevertheless held that Oakley’s arrest context, the reasonableness of the allegations of excessive force were force used is often a jury question,” id. conclusory and did not support a plausible (citing Hernandez v. Denny’s Corp., 114 inference of unnecessary force or injurious N.Y.S.3d 147, 152 (4th Dep’t 2019)). intent. Oakley, 2020 WL 818920, at *13– 14. In the same opinion and order, the Court The Second Circuit remanded the case to also denied Oakley leave to amend his this Court for further proceedings on the complaint for a second time, as he “offer[ed] assault and battery claim. no basis for his request[,] . . . nor [did] he attach a proposed amended complaint.” Id. 3. On Remand at *16. On December 7, 2020, Defendants 2. On Appeal submitted a letter indicating that they would move for summary judgment based solely Oakley timely appealed. (Doc. No. 70.) on the video footage documenting Oakley’s In an opinion and a separate summary order, removal from the Garden. (Doc. No. 75.) the Second Circuit affirmed this Court’s On December 11, 2020, Oakley submitted a decision in all respects except for its letter that again requested leave to file a dismissal of Oakley’s assault and battery second amended complaint. (Doc. No. 83.) claims. See Oakley v. Dolan, 980 F.3d 279, The Court held a pre-motion conference on 280 (2d Cir. 2020); Oakley v. Dolan, 833 December 22, 2020, addressing both F. App’x 896, 898 (2d Cir. 2020). anticipated motions.

With respect to those claims, the Second On January 22, 2021, Defendants filed Circuit concluded that the act of Oakley’s their motion for summary judgment (Doc. removal was not itself unreasonable, but No. 102), and Oakley filed his motion for held that Oakley’s claim that “security leave to file a second amended complaint. guards used excessive force in (Doc. No. 106.) The motions were fully accomplishing the removal” was sufficient, briefed on March 9, 2021. on its face, to survive dismissal. Id. at 283 (emphasis added). The Second Circuit II. MOTION FOR SUMMARY JUDGMENT emphasized those portions of Oakley’s amended complaint “that allege[d] that he A. Legal Standard was ‘thrown to the ground’ by actions that ‘greatly exceeded the amount of force that Summary judgment is appropriate when was necessary’ and ‘clearly exceeded the “there is no genuine dispute as to any bounds of reasonable behavior,’ and that he material fact and the movant is entitled to ‘has suffered and continues to suffer judgment as a matter of law.” Fed. R. Civ. harm[.]’” Id. P. 56(a). Only “disputes over facts that might affect the outcome of the suit under 537 N.Y.S.2d 659, 661 (3d Dep’t 1989) governing law will properly preclude the (“[A] ticket to a place of public amusement entry of summary judgment.” Anderson v. is merely a license which is revocable, Liberty Lobby, Inc., 477 U.S. 242, 248 without cause, at the will of the (1986). proprietor.”); see also Madden v. Queens Cnty. Jockey Club, Inc., 296 N.Y. 249, 253 “[C]hoices between conflicting versions (1947). The Second Circuit’s opinion of the [facts] are matters for the jury, not for affirms that the decision to remove Oakley the court on summary judgment.” Rule v. was permissible, foreclosing further Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. litigation on the issue. Oakley, 980 F.3d at 1996). The factual dispute, however, must 283 (noting that Oakley contended be “genuine.” Fed. R. Civ. P. 56(a) “incorrectly” that “the act of removal was (emphasis added). “When opposing parties unreasonable”). tell two different stories, one of which is blatantly contradicted by the record, so that Under New York state law, if a licensee no reasonable jury could believe it, a court refuses to leave private property, a property should not adopt that version of the facts for owner “ha[s] the right to use reasonable purposes of ruling on a motion for summary force to eject [the licensee].” Noonan v. judgment.” Scott v. Harris, 550 U.S. 372, Luther, 206 N.Y. 105, 108 (1912). The 380 (2007). In particular, “when there is standard for determining the reasonableness reliable objective evidence – such as a of the force applied is effectively identical in recording – the evidence may speak for both New York state tort claims and Fourth itself.” Marcavage v. City of New York, 689 Amendment excessive force claims brought F.3d 98, 110 (2d Cir. 2012); see also id. pursuant to 42 U.S.C. § 1983. See Posr v. (holding that an audio recording Doherty, 944 F.2d 91, 94–95 (2d Cir. 1991) “indisputably” refuted the plaintiffs’ (noting that “the essential elements” of contention that “their behavior toward the Fourth Amendment excessive force claims [arresting] officers [was] cordial[] and . . . and their “state law tort counterpart,” assault compliant,” which supported granting and battery, are “substantially identical”). A summary judgment in favor of the defendant plaintiff alleging excessive force must officers on the plaintiffs’ Fourth demonstrate that “the amount of force used Amendment claim). was objectively unreasonable.” Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d B. Scope of the Issue Cir. 1996) (citation and quotation marks omitted). To succeed on his claims, Oakley The sole issue to adjudicate in Oakley’s must therefore establish that the MSG remaining assault and battery claims is security guards used “objectively whether “the security guards used excessive unreasonable” force to remove him from the force in accomplishing [Oakley’s] removal.” Garden. Id. (citation omitted). Oakley, 980 F.3d at 283. The rationale for removing Oakley is not at issue; under New C. Additional Discovery York state law, property owners have the right to remove licensees, such as As a preliminary matter, Oakley argues ticketholders like Oakley, from their that additional discovery is needed to property for any reason or no reason at all. resolve whether MSG security guards gave See, e.g., Impastato v. Hellman Enters., Inc., him a “reasonable” opportunity to leave before using force. (Doc. No. 110 at 2 peaceably, under his own power; the same (quoting Noonan, 206 N.Y. at 108)); see video also shows that Oakley ignored the also Jon W. Bruce & James W. Ely, Jr., The guards’ entreaties and repeated attempts to Law of Easements & Licenses in Land direct him toward the exit. (Fan Vid., 0:01– § 11:6 (May 2021 update) (“Upon 0:59.) In fact, the video reveals that it was revocation of a license, the licensee must be Oakley who unilaterally escalated the afforded a reasonable opportunity to leave confrontation, leading to his eventual the land[.]”). In situations where “facts forcible removal. (Fan Vid., 0:01–0:59.) essential to justify . . . opposition” to Accordingly, no further discovery is needed summary judgment are unavailable to the to explore whether MSG security “afforded non-movant, a court “may” allow time to [Oakley] a reasonable opportunity to leave.” take discovery. Fed. R. Civ. P. 56(d). But Noonan, 206 N.Y. at 108. no such additional discovery is necessary in this case. Moreover, while Oakley argues that additional discovery is needed to uncover Surveillance videos from the stadium, evidence concerning “the reasons for the though silent and low-resolution, capture decision . . . to eject Mr. Oakley,” as well as every moment from Oakley’s arrival at his to gather evidence about “Mr. Oakley’s seat to his final exit. (See Doc. No. 104, behavior from the period between when he Exs. 2a, 2b.) And video taken by fans in the first entered [the Garden] to when vicinity of the altercation captures the key Defendants’ video shows him walking moments of Oakley’s removal, in high towards his seat” (Doc. No. 110 at 8, 13), resolution, with audio. (See Doc. No. 104, this is merely a backdoor attempt to Ex. 3; Fan Vid.) The entire sequence of relitigate the issue of whether Defendants events during which Oakley alleges were entitled to eject Oakley from the Defendants’ security personnel used Garden. As the Court explained in its unreasonable force is thus captured in the previous decision, and as the Second Circuit videos submitted in connection with affirmed on appeal, the law is crystal clear Defendants’ motion for summary judgment. on this point: Defendants were not required Oakley does not claim, for instance, that he to supply a reason for expelling Oakley – a was assaulted off-camera in the hallways ticketholder licensee at the Knicks game – outside the arena but while still on MSG from Madison Square Garden. See, e.g., property. Rather, the critical moments Impastato, 537 N.Y.S.2d at 661; see also regarding his assault and battery claims – Oakley, 980 F.3d at 283. i.e., that “he was ‘thrown to the ground’ by actions that ‘greatly exceeded the amount of Thus, it makes no difference that force that was necessary’ and ‘clearly “Oakley appears to have acted exceeded the bounds of reasonable unoffensively” and was “pleasantly behavior,’” Oakley, 980 F.3d at 283 – communicating with spectators nearby” necessarily appear in the videos now before before he was approached by Defendants’ the Court. Importantly, Oakley does not security guards, as Oakley asserts in his dispute the authenticity of the videos. brief. (Doc. No. 110 at 14.) Defendants needed no reason at all to eject him from the As described above, the video footage premises. What does matter is the sequence conclusively shows the MSG guards giving of events once security personnel asked Oakley ample opportunity to leave the arena Oakley to leave, which is entirely captured on video. In short, everything needed to ground”; and that guards “instigated a determine the reasonableness of the force physical altercation where there otherwise employed by the MSG security guards is was no need for such violent conduct”) contained in the videos now before the (quotation marks omitted) (citing Doc. No. Court, and that video footage “speak[s] for 36 ¶¶ 42, 43, 44, 47). itself.” Marcavage, 689 F.3d at 110. While Oakley cites several cases generally For instance, in his opposition brief, standing for the proposition that “summary Oakley insists that his initial fall was a result judgment should not be granted [against a of being “pushed to the ground near his party who] is denied reasonable access to seat.” (Doc. No. 110 at 16.) But the video potentially favorable information,” he offers footage clearly shows that Oakley trips, no explanation as to how the information he nearly dragging an MSG guard down with seeks to discover concerning his conduct him. (Fan Vid., 0:13–0:14.) before he was asked to leave the arena might be even “potentially” helpful to his position Oakley next contends that the guards’ in the remaining legal dispute. (Doc No. use of physical force to escort him into the 110 at 7 (quoting Robinson v. Transworld aisle was excessive because he “passively Airlines, Inc., 947 F.2d 40, 43 (2d Cir. submitted to Defendants’ actions.” (Doc. 1991).) The Court therefore proceeds to No. 110 at 16.) That, too, mischaracterizes consider Defendants’ motion for summary the encounter captured on video. In fact, the judgment. video footage shows MSG guards resorting to force only after Oakley physically D. Video Footage escalates the situation by chest-bumping and poking in the face one guard and twice Turning to the merits of Oakley’s assault shoving another. (Fan Vid., 0:42–0:58.) and battery claims, the Court has no Indeed, the time Oakley refers to as a period difficulty concluding that Defendants are of “passive[]” submission is the roughly 10 entitled to summary judgment. There is no seconds immediately after he shoves the interpretation of the video footage that could second MSG guard, thereby eliminating any lead a reasonable jury to conclude that the inference that this brief moment of physical degree of force used by MSG security separation signals Oakley’s cooperation. guards to remove Oakley from the Garden was “objectively unreasonable.” Lowth, 82 Oakley next asserts that his second fall F.3d at 573 (citation omitted). resulted when MSG guards “push[ed], thr[e]w, and/or drag[ged] [him] to the Critically, each of the key factual ground.” (Doc. No. 110 at 17.) But the allegations in Oakley’s complaint that the video clearly contradicts that Second Circuit identified as supporting characterization of events. At the point that Oakley’s assault and battery claims is Oakley loses his footing as the guards steer thoroughly contradicted by the video him toward the exit, the footage shows no evidence. See Oakley, 980 F.3d at 283 intentional pushing, throwing, or dragging (highlighting Oakley’s allegations that MSG of Oakley toward the ground – and certainly security guards “grabbed him” and “forcibly nothing that can be deemed unreasonable shov[ed] [him] to the ground”; that “when force. (Fan Vid., 1:10.) Indeed, in the he got back to his feet, . . . he was grabbed moments before this second fall, security by six officials and thrown onto the personnel can be seen moving Oakley at a reasonable pace, with Oakley initially evidence.2 And the Second Circuit has keeping up. (Fan Vid., 1:04–1:10.) When explained that “a plaintiff cannot defeat a Oakley falls, security personnel soften his motion for summary judgment . . . only with landing and then immediately attempt to lift speculation about what discovery might him back to his feet; it is then Oakley who uncover.” Contemporary Mission, Inc. v. resists, at one point audibly stating, “I don’t U.S. Postal Serv., 648 F.2d 97, 107 (2d Cir. want to stand up.” (Fan Vid., 1:15–1:35.) 1981). Oakley’s bare assertions that he Tellingly, as Oakley lies prone on the wishes to discover different videos of the ground complaining about his unfair incident, taken from other angles or at ejection from the arena, he makes no different times, will not prevent entry of accusation or complaint that anyone tripped summary judgment, especially since Oakley him. cannot explain what relevant information such videos, if they exist, might reveal. See After Oakley rises to his feet once more, Gray v. Town of Darien, 927 F.2d 69, 74 (2d he clings to the railing and refuses to let go. Cir. 1991) (“[P]laintiffs only speculate as to (Fan Vid., 2:35–2:58.) Far from “not what evidence, if any, further discovery resisting Defendants’ efforts to drag him out would produce.”). of MSG,” Oakley engages in a last-ditch effort to remain in the Garden, forcing the Oakley additionally argues that MSG guards to pry his hands free before evaluations of reasonable force should be they finally manage to escort him from the left to the jury, relying on the Second arena. (Doc. No. 110 at 20.) Circuit’s observation that “[b]ecause of its intensely factual nature, the question of In sum, while the parties “tell two whether the use of force was reasonable different stories” about what happened in the under the circumstances is generally best left Garden on February 8, 2017, Scott, 550 U.S. for a jury to decide.” Oakley, 980 F.3d at at 380, the video footage conclusively rebuts 284. This proposition is of course generally Oakley’s version of events – and vindicates true – any genuine dispute of a factual Defendants’ version. nature should be left to the jury as factfinder. This maxim is not, however, an E. Remaining Arguments ironclad rule, and the Second Circuit’s observation did not amount to a directive Oakley raises two final arguments in his opposition brief, but neither alters the Court’s conclusion that summary judgment 2 See, e.g., Angula v. Brown, 978 F.3d 942, 949–52 in favor of Defendants is warranted. First, (5th Cir. 2020) (affirming pre-discovery grant of summary judgment on excessive force claims where Oakley argues that summary judgment video evidence “blatantly contradicted” plaintiff’s based on any video evidence is improper allegations); Aldridge v. City of Warren, 682 where, as here, there has been no additional F. App’x 461, 463–65 (6th Cir. 2017) (affirming pre- discovery. (Doc. No. 110 at 20– 23.) But discovery grant of summary judgment on excessive neither the Second Circuit nor the Supreme force claims where video offered by defendants “undercut[]” plaintiff’s version of events); Smith v. Court has ever articulated such a rule; United States, 843 F.3d 509, 512–16 (D.C. Cir. 2016) indeed, many excessive force cases involve (affirming pre-discovery grant of summary judgment the granting or affirmance of summary in light of video and audio recordings that judgment, prior to discovery, based on video “contradicted [plaintiff’s] complaint”). that a jury must decide the excessive force unreasonable force might be lower in the claims in this particular case. civil context does not mean that Oakley has raised a genuine issue of fact as to whether In fact, courts in this Circuit routinely that threshold has been met. He has not. resolve excessive force claims at the The video footage unambiguously summary judgment stage. See, e.g., demonstrates that the force used to remove MacLeod v. Town of Brattleboro, 548 Oakley was by no possible assessment F. App’x 6 (2d Cir. 2013); Kalfus v. N.Y. & “objectively unreasonable.” Lowth, 82 F.3d Presbyterian Hosp., 706 F. Supp. 2d 458 at 573 (citation omitted). (S.D.N.Y. 2010), aff’d, 476 F. App’x 877 (2d Cir. 2012); Berman v. Williams, No. 17- Because “no reasonable jury could,” in cv-2757 (JGK), 2019 WL 4450810, at *7 light of the videos, determine that MSG (S.D.N.Y. Sept. 17, 2019) (granting guards used unreasonable force to remove summary judgment where video evidence Oakley from the premises, the Court grants “undermines the plaintiff’s claim that the Defendants’ motion for summary judgment defendants used excessive force”); Lin v. on Oakley’s assault and battery claims. City of New York, No. 1-cv-9994 (PAE), Scott, 550 U.S. at 380. 2016 WL 7439362, at *11–12 (S.D.N.Y. Dec. 21, 2016) (granting summary judgment III. MOTION FOR LEAVE TO FILE A SECOND where video evidence “refutes” plaintiff’s AMENDED COMPLAINT allegations of excessive force). And since Oakley’s remaining claim is a state-law Finally, Oakley requests permission to claim for assault and battery, it bears noting add James Dolan as a defendant on the that New York state courts also frequently remaining assault and battery claims, under resolve such cases on summary judgment. either a concerted action theory or an aiding See, e.g., N.M. v. City of New York, 96 and abetting theory of liability.3 But even N.Y.S.3d 856 (1st Dep’t 2019); Harris v. assuming that Dolan instigated the City of New York, 62 N.Y.S.3d 411, 413–14 altercation and directed the guards to (2d Dep’t 2017); Walker v. City of New remove Oakley from the premises, the fact York, 50 N.Y.S.3d 320 (1st Dep’t 2017); remains that both theories of liability require Estevez v. City of New York, 931 N.Y.S.2d that the underlying tort – assault and battery 303 (1st Dep’t 2011). – actually occurred. See Bigio v. Coca-Cola Co., 675 F.3d 163, 172 (2d Cir. 2012); The Second Circuit in this case also Segal v. Firtash, No. 13-cv-7818 (RJS), alluded to a distinction between excessive 2014 WL 4470426, at *7 (S.D.N.Y. Sept. 9, force claims arising in the criminal context, “in circumstances that are tense, uncertain, 3 Under a concerted action theory of liability, a and rapidly evolving,” and unreasonable defendant may be liable for “having an understanding, express or tacit, to participate in a force claims arising in the civil context. common plan or design to commit a tortious act.” Oakley, 980 F.3d at 284 (quoting Graham v. Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d Connor, 490 U.S. 386, 396–97 (1989)). The 289, 295 (1992) (citation and quotation marks Second Circuit explained that the quantum omitted). An aiding-and-abetting claim requires of force reasonable to effect arrest might demonstrating that a defendant knowingly and substantially assisted in a wrongful act that inflicted “not necessarily [be] reasonable” to effect an injury. See Scollo ex rel. Scollo v. Nunez, 847 civil removal. Id. Regardless, N.Y.S.2d 899, at *4 (Sup. Ct. 2007), aff’d sub nom. acknowledging that the threshold level for Scollo v. Nunez, 874 N.Y.S2d 380 (2d Dep’t 2009). 2014). Because the Court has granted Therefore, for the reasons stated above, summary judgment in favor of Defendant IT IS HEREBY ORDERED THAT MSG on the assault and battery claims, there Defendants’ motion for summary judgment is no underlying tort to which Oakley’s is GRANTED. IT IS FURTHER proposed claims against Dolan can apply. ORDERED THAT Oakley’s request for Accordingly, Oakley’s motion for leave to leave to file another amended complaint is amend is denied as futile. See Fed. R. Civ. DENIED. The Clerk of Court is respectfully P. 15(a)(2) (requiring the Court’s leave to directed to terminate the motions pending at amend a complaint); see also Chunn v. docket numbers 102 and 106 and to close Amtrak, 916 F.3d 204, 208 (2d Cir. 2019) this case. (denying as futile a request to add an additional defendant when the new claim SO ORDERED. “turns on the same” issues as the meritless

claim “and fails for the same reasons”).

______________________ IV. CONCLUSION RICHARD J. SULLIVAN United States Circuit Judge For the past three years, much ink has Sitting by Designation been spilled describing and characterizing

what transpired between Charles Oakley and the security guards tasked with escorting Dated: November 8, 2021 him from Madison Square Garden during a New York, New York Knicks game in February 2017. These descriptions and characterizations have had * * * their place in the pleadings, in the Plaintiff Charles Oakley is represented Defendants’ motions to dismiss, and on by Douglas H. Wigdor, Renan F. Varghese, appeal. But at this stage of the proceedings, and Kenneth D. Walsh of Wigdor LLP, 85 the case is no longer about words. It’s about Fifth Ave., 5th Fl., New York, New York evidence. And the undisputed video 10003; and Nelson A. Boxer of Petrillo evidence conclusively demonstrates that the Klein & Boxer LLP, 655 Third Ave., 22nd Garden’s security guards did not use Fl., New York, New York 10017. excessive force as they escorted Oakley from the arena. To the contrary, the video Defendants James Dolan, MSG clearly shows that: (1) the guards asked Networks, Inc., The Madison Square Garden Oakley to leave; (2) they gave him a chance Company, and MSG Sports & to leave; and (3) when he refused to leave, Entertainment, LLC are represented by and in fact escalated the confrontation, they Randy M. Mastro, Akiva Shapiro, Grace E. removed him from the Garden by using a Hart, and Declan T. Conroy of Gibson, degree of force that was indisputably Dunn & Crutcher LLP, 200 Park Ave., New reasonable and appropriate under the York, New York 10166; and James Walden circumstances. No rational jury could and Milton L. Williams of Walden Macht & conclude otherwise, and Oakley’s Haran LLP, 250 Vesey St., 27th Fl., New previously offered versions of the events are York, New York 10281. “so blatantly contradicted by the [video] record . . . that no reasonable jury could believe [them].” Scott, 550 U.S. at 380.