Nicholson v. Durant: Fair-Notice Pleading and Supplemental Jurisdiction for Alternative State-Law Gross Negligence Theories

I. Introduction

The Fourth Circuit’s published decision in Jawone D. Nicholson v. Damond Durant, No. 24‑1789 (4th Cir. Dec. 18, 2025), arises from a brief but extraordinarily traumatic encounter between a sixteen‑year‑old and an off‑duty Baltimore police officer who drew a loaded handgun at “low ready” during a casual street interaction. While the jury rejected Nicholson’s federal and state constitutional claims, it found Officer Durant grossly negligent “in his capacity as a private person” and awarded $250,000 in compensatory damages for emotional and psychological harm.

On appeal, Durant attacked not the liability finding itself, but the procedural path that allowed that verdict to stand. He argued:

that a claim for “gross negligence as a private person” was never pleaded, so the district court erred in submitting it to the jury and in denying his post‑trial motion under Federal Rule of Civil Procedure 59(e);
that the district court lacked supplemental jurisdiction over that purportedly new state‑law theory;
that the court plainly erred by failing, sua sponte, to instruct the jury on a contributory negligence defense; and
that the $250,000 emotional‑distress award was so excessive as to require a new trial nisi remittitur.

The Fourth Circuit (Judge Gregory, joined by Judge Agee and Judge Young) rejected each argument and affirmed. The opinion is significant not because it breaks dramatic new doctrinal ground, but because it consolidates and applies several important principles:

how far “fair notice” pleading under Rule 8 allows a plaintiff to proceed on alternative capacity theories within a single state‑law count;
when a federal court may exercise supplemental jurisdiction over a state‑law theory that is not labeled as such in jurisdictional allegations, but is embedded in the pleadings;
the limited scope of plain‑error review for omitted jury instructions on affirmative defenses in civil cases; and
the high level of deference federal courts applying Maryland law must give to jury awards for emotional distress, even where there is no formal medical treatment.

II. Background of the Case

A. The Encounter

On November 10, 2017, Nicholson and his friend Brian Hatcher, both teenagers, were standing under a carport near Nicholson’s home in Columbia, Maryland, waiting for a delayed van to take them to an after‑school mentorship program. Durant, an off‑duty Baltimore City police officer in plain clothes, was returning from firearms training and observed the boys.

Durant approached them. Although he later testified that he was not afraid or intimidated, he began questioning the boys—whether they lived in the neighborhood, why they were there, and whom they were waiting for. The boys answered that they lived nearby and were waiting for their ride. When they challenged Durant’s persistent probing, asking why he was so interested, Durant replied that “somebody might call the police.” Hatcher responded, “Okay, do that.” Durant answered, “I knew you all wasn’t going to do shit,” and then pulled a Glock 43 handgun from his hoodie pocket.

Crucial factual details emphasized by the court:

The gun was drawn to the “low ready” position—held in front of Durant at a 45‑degree angle, only a slight lift away from being aimed at “center mass.”
The Glock 43 had no external safety; a round was chambered; Durant admitted the firearm was “ready to fire” and that he only needed to pull the trigger.
Both boys immediately threw their hands up. Nicholson testified that he “thought it was over” and believed Durant “was going to kill both of [them].”

Nicholson fled toward his house, phoned his grandmother in terror, and his family rushed outside. Durant continued to brandish his weapon until the boys left, then followed several paces behind Nicholson, explaining later that he wanted to give the police a good description. Responding officers disarmed Durant and collected statements for nearly two hours.

B. Emotional and Life Impact on Nicholson

The opinion recounts in some detail the profound emotional and physical impact on the sixteen‑year‑old:

Before the incident, Nicholson was described by family as “fun loving,” “playful,” and affectionate, with a “sensitive” personality and a desire to care for others.
Afterward, he became withdrawn, glum, and quiet; he avoided leaving his house and did not want to walk past the location of the incident.
He stopped using his own bedroom, which overlooked the path of the encounter, and instead slept downstairs or on the floor of his mother’s bedroom, plagued by insomnia and frequent crying.
He frequently felt nauseous, tired, depressed, and irritable—complaints recorded in a stress questionnaire at his new military boarding school three months later.
His view of law enforcement fundamentally changed; he testified that he now becomes scared when he sees police officers and takes detours to avoid them.

Nicholson ultimately decided to attend a military boarding school an hour away and later moved with his family to another neighborhood, partly to escape the daily reminders of the incident and out of fear for his family’s safety.

C. Procedural History

Nicholson sued under 42 U.S.C. § 1983 and Maryland law, naming:

the State of Maryland,
the Baltimore Police Department,
the Mayor and City Council of Baltimore, and
Officer Durant.

The claims against the governmental entities were dismissed under Rule 12(b)(6), and certain claims against Durant were eliminated at summary judgment. What remained for trial were:

two federal constitutional claims,
two state constitutional claims, and
a state‑law gross negligence claim.

At the final pretrial conference, a critical discussion occurred: whether a state‑law gross‑negligence claim would proceed against Durant in his personal capacity, even if other theories turned on his acting as a police officer. Plaintiff’s counsel represented that he had explicitly discussed with defense counsel that Durant could face personal liability for gross negligence. Defense counsel did not dispute that those conversations occurred.

The district court submitted to the jury a verdict form that disaggregated the gross negligence theories into:

gross negligence by Durant “in his capacity as a police officer,” and
gross negligence by Durant “in his capacity as a private person.”

After a three‑day trial, the jury found in favor of Durant on all federal and state constitutional claims but found him liable for gross negligence “as a private person.” It awarded Nicholson $250,000 in compensatory damages.

Durant then filed a Rule 59(e) motion to alter or amend the judgment, or alternatively for a new trial nisi remittitur, arguing:

the complaint did not plead gross negligence in his private capacity, so the court erred in submitting that theory; and
the $250,000 award was excessive.

The district court denied the motion. On appeal, Durant renewed those arguments and added two new ones:

that the district court lacked supplemental jurisdiction over any “gross negligence as a private person” claim, and
that the court plainly erred by failing to instruct the jury on contributory negligence as a defense.

III. Summary of the Opinion

The Fourth Circuit affirmed the district court in all respects. Its main holdings can be summarized as follows:

Pleading and Notice: The operative complaint, when fairly read, did plead a state‑law gross negligence claim that encompassed liability for Durant’s conduct in both his official and private capacities. Phrases such as “no constitutional or legally valid basis” and alternative allegations of “personal liability” gave Durant adequate notice under Federal Rule of Civil Procedure 8(a)(2). The district court, though it used the wrong procedural lens (Rule 15(b)), did not commit clear error or work a manifest injustice in submitting the private‑capacity gross‑negligence theory to the jury and denying Rule 59(e) relief.
Supplemental Jurisdiction: The district court did not abuse its discretion in exercising supplemental jurisdiction over the “gross negligence as a private person” theory. Unlike in Pinkley, Inc. v. City of Frederick, the plaintiff here expressly pled a state‑law gross negligence claim based on the same facts; the “private person” framing was not a new, unpleaded cause of action but an alternative way of assigning liability for the same tort.
Contributory Negligence Instruction: Under plain‑error review, the district court did not err by failing sua sponte to instruct the jury on contributory negligence, particularly after Durant withdrew his own request for such an instruction and presented no evidence suggesting that Nicholson’s conduct was negligent in any way. Moreover, Maryland law is unsettled on whether contributory negligence is even a defense to gross negligence.
Damages and Remittitur: The $250,000 compensatory award did not “shock the conscience” under Maryland law. Nicholson presented substantial evidence of severe emotional distress with physical manifestations and life disruptions. The lack of formal medical or psychological treatment did not preclude recovery. Any arguably “societal” themes in plaintiff’s closing argument were isolated, not objected to, and cured by jury instructions that arguments of counsel are not evidence and that damages must not be based on sympathy.

IV. Detailed Analysis

A. Standards of Review and Procedural Framework

The court begins by situating each of Durant’s arguments within the appropriate standard of review:

Rule 59(e) Denial: Reviewed for abuse of discretion (Robinson v. Wix Filtration Corp.). Relief is appropriate only for an intervening change in controlling law, new evidence, or “clear error”/“manifest injustice” (Hutchinson v. Staton). Mere disagreement with the ruling is insufficient.
Supplemental Jurisdiction: The exercise of supplemental jurisdiction over state‑law claims is also reviewed for abuse of discretion (Crosby v. City of Gastonia), with abuse defined as acting arbitrarily, ignoring relevant factors, or relying on erroneous premises (United States v. Henry).
Unrequested Jury Instruction (Contributory Negligence): Durant failed to preserve this issue; thus the court applies plain‑error review under Gregg v. Ham and Rule 51(d)(2). He must show (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously impairing the fairness, integrity, or public reputation of judicial proceedings.
New Trial Nisi Remittitur: A district court’s ruling on a new trial or remittitur is reviewed for abuse of discretion (Stamathis v. Flying J, Inc.). When assessing the excessiveness of a state‑law damages award, the federal court uses state substantive standards (Gasperini v. Center for Humanities), here Maryland’s “shocks the conscience” test (Banegura v. Taylor; Conklin v. Schillinger).

This framework heavily favors affirmance: each major issue is filtered through deferential standards, and several (notably the contributory negligence point) are subject to plain‑error review, which is notoriously difficult for appellants to satisfy.

B. Pleading of “Gross Negligence as a Private Person” and Fair Notice

1. The Dispute

Durant maintained that Nicholson’s amended complaint only alleged gross negligence by Durant in his official capacity as a Baltimore police officer acting “under color of State law.” Because the complaint’s counts incorporated paragraphs alleging that “at all relevant times” Durant acted as an officer, he claimed he lacked notice of any personal‑capacity, private‑actor gross negligence theory. Therefore, in his view, the district court committed clear error and caused manifest injustice by submitting “gross negligence as a private person” to the jury and denying his Rule 59(e) motion.

Nicholson responded that Maryland law does not meaningfully distinguish “gross negligence as a police officer” from “gross negligence as a private person” for purposes of the tort itself, and that in any event the complaint, read fairly and in context, gave clear notice that Durant faced personal liability for gross negligence arising from the same conduct.

2. The Court’s Approach: Rule 8, Not Rule 15

The district court had treated Durant’s post‑trial challenge as implicating Federal Rule of Civil Procedure 15(b)(1) (amendments to conform to the evidence when an issue was tried despite an objection). The Fourth Circuit explicitly disapproved of that lens: Rule 15(b)(1) is concerned with objections to evidence on issues beyond the pleadings, not with whether a pleaded legal theory exists at all. Here, Durant did not object at trial to evidence as beyond the pleadings; he argued that the theory itself was never pled.

Nonetheless, the Fourth Circuit affirmed the denial of Rule 59(e) relief on the correct rationale: under Rule 8(a)(2)’s “short and plain statement” standard (Bell Atl. Corp. v. Twombly), the complaint adequately put Durant on notice of a personal‑capacity gross‑negligence theory.

3. Textual Reading of the Complaint

The opinion carefully dissects the complaint’s wording. One key allegation states:

“When Defendant Durant stopped, interrogated, and brandished a weapon at Plaintiff, he had no constitutional or legally valid basis for doing so. Defendant Durant’s claim that he had never seen Plaintiff before did not give Defendant Durant the authority to stop, interrogate, and use force against Plaintiff.” (emphasis added)

The court focuses on the disjunctive “or.” Citing Rush v. Kijakazi, it notes that “the ordinary use of the word ‘or’ is almost always disjunctive,” connecting separate ideas. Thus:

“no constitutional … basis” speaks to Durant’s obligations and limits as a state actor (officer acting under color of law), and
“no … legally valid basis” reasonably reads as a separate, more general assertion that his conduct violated duties owed by any private individual.

Another critical paragraph alleges, “[i]n the alternative,” that Durant’s brandishing of a firearm at a minor, based solely on unfamiliarity with him:

“constituted an intentional failure to perform a manifest duty and abide by the constitutional limits of policing in reckless disregard of the consequences as affecting the life of another, and evinced a thoughtless disregard of the consequences to Plaintiff's life without the exertion of any effort to avoid those consequences, putting Plaintiff in danger.” (emphasis added)

Here, the opinion leans on Bruesewitz v. Wyeth LLC to emphasize that “and,” as a coordinating conjunction, links independent ideas. The phrase is read as combining:

a theory that Durant violated the “constitutional limits of policing” (official‑capacity conduct), and
a broader theory that he failed to perform a “manifest duty” and acted with reckless disregard for life, supporting personal liability for gross negligence as a private actor.

The complaint also repeatedly alleged, “[i]n the alternative,” that Durant’s conduct constituted gross negligence for which he was “personally liable,” specifically after paragraphs discussing his status and actions as a police officer. These alternative formulations made clear that, even if the jury rejected that he acted under color of state law, Nicholson was pursuing a parallel state‑law theory that imposed personal tort liability on Durant.

The Fourth Circuit acknowledges that Nicholson “could have more clearly articulated” the dual‑capacity nature of the gross negligence claim, but under Rule 8 he was not required to use technical labels or magic words. What matters is whether the defendant had “fair notice of what the claim is and the grounds upon which it rests.” The court concludes that he did.

4. Absence of Prejudice or Manifest Injustice

Even if the pleading were debatable, Durant could not show “manifest injustice” from submitting the claim to the jury:

The same nucleus of facts supported all theories (federal and state). The district court correctly noted that “[t]he facts giving rise to the gross negligence as a private person cause of action” were “the same as those in all other claims.” Durant identified no discovery he was unable to take, no witnesses he could not prepare, and no distinct factual issues he would have litigated differently had the “private person” label been explicit from day one.
Plaintiff’s counsel reminded defense counsel at the final pretrial conference that they had discussed personal‑capacity exposure for gross negligence. Defense counsel did not deny that, did not claim surprise, and did not seek a continuance.

On this record, there was no “clear error” in finding the pleadings sufficient, nor any manifest injustice warranting Rule 59(e) relief. The decision thus reinforces a robust view of “notice pleading” for alternative theories of liability arising from the same set of facts.

C. Supplemental Jurisdiction over the Alternative State-Law Theory

1. Durant’s New Argument and the Governing Statute

For the first time on appeal, Durant argued that the district court lacked supplemental jurisdiction over a “gross negligence as a private person” claim because:

the complaint did not explicitly invoke 28 U.S.C. § 1367, and
the pleadings did not “clearly” state this was a distinct state‑law theory, so the district court could not assert supplemental jurisdiction sua sponte.

Supplemental jurisdiction under § 1367(a) extends to “all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy,” which generally means they arise out of a “common nucleus of operative fact.”

2. Distinguishing Pinkley

Durant relied heavily on Pinkley, Inc. v. City of Frederick, where the Fourth Circuit held that a district court had abused its discretion by entering judgment on a state‑law conversion theory that the plaintiff never pled, never described as such, and, indeed, disavowed in a post‑trial memorandum. There, defense counsel had repeatedly stated that “there were no state law claims in this case,” and plaintiff never contradicted that explanation.

The court finds Pinkley inapposite:

In Pinkley, the unpleaded conversion theory was an entirely new cause of action, not referenced in the pleadings or the parties’ characterization of the claims.
Here, Nicholson explicitly pled a state‑law gross‑negligence claim in his complaint.
The “private person” versus “police officer” framing went not to the existence of a state‑law cause of action, but to the capacity in which the single tort claim could impose liability.

The case also cites a separate discussion in Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., noting that Pinkley is concerned with situations where evidence “incidentally tends” to support an entirely different, never‑pled theory. That is not what happened here; all the evidence was squarely directed at the same set of facts underlying federal constitutional and state‑law claims.

3. Same Facts, Same Claim, Sufficient Jurisdiction

Because:

there was an expressly pled state‑law gross negligence claim,
the factual basis for that claim (Durant’s confrontation with Nicholson and his friend, gun drawn, and the ensuing emotional harm) was identical regardless of whether Durant was acting as an officer or private person, and
no one suggested that additional or different facts were required to adjudicate the “private person” variant,

the Fourth Circuit holds that the district court did not abuse its discretion in exercising supplemental jurisdiction over the gross‑negligence claim in all its capacity variants.

The opinion is a useful reminder: federal courts do not require formalistic jurisdictional labels in the complaint as long as the pleaded state‑law claims are so closely intertwined with the federal claims that they plainly form part of the same case or controversy.

D. Contributory Negligence and Plain-Error Review

1. The Legal Backdrop: Contributory Negligence under Maryland Law

Maryland is a contributory negligence jurisdiction: a plaintiff’s own negligence, however slight, traditionally bars recovery in ordinary negligence actions. But Maryland’s highest court has repeatedly declined to resolve whether such “simple” contributory negligence bars recovery where the defendant’s conduct rises to gross negligence.

The opinion cites:

Liscombe v. Potomac Edison Co., where the court assumed, without deciding, that contributory negligence is not a defense to gross negligence; and
Saba v. Darling, where the Court of Special Appeals acknowledged that the question “must await another day.”

The Fourth Circuit’s own earlier decision in Ramos v. Southern Maryland Electric Co-op. noted that Maryland has “never held that contributory negligence does not bar gross negligence,” but, again, did not conclusively resolve the issue.

Against this unsettled backdrop, Durant argued that the district court plainly erred by failing, sua sponte, to instruct on contributory negligence as a defense to the “gross negligence as a private person” theory—especially once his personal‑capacity exposure became clear.

2. Procedural Posture: Withdrawal of the Instruction and Plain Error

Durant initially requested a contributory negligence instruction at trial, but later withdrew that request. The jury was never instructed on the defense. On appeal, he reversed course and claimed it was plain error for the court not to provide the instruction on its own initiative.

Under United States v. Williams and Gregg v. Ham, a court’s failure to instruct on an unrequested defense rarely constitutes plain error, especially where:

the defense is not clearly established in governing law, and
the record contains no evidence to support the defense.

3. No Error, and No Prejudice in Any Event

Even assuming for argument’s sake that Maryland treats contributory negligence as a defense to gross negligence (an open question), the court found several obstacles to Durant’s plain‑error claim:

No supporting evidence in the record. Contributory negligence requires some negligent act or omission by the plaintiff. The record shows that Nicholson:
- stood under a carport waiting for a ride,
- answered questions posed by an unknown adult who approached him,
- put his hands up when confronted with a drawn, loaded gun at “low ready,” and
- retreated from the area and called his grandmother.
None of these acts suggest negligence, much less conduct contributing to Durant’s decision to pull a weapon. Durant offered no contrary evidence and could not even identify “hypothetical” facts suggesting Nicholson was negligent.
No clear legal entitlement to the instruction. Because Maryland’s courts have left unresolved whether contributory negligence bars gross‑negligence claims, it cannot be “plain” error to omit such an instruction sua sponte—especially where the defense had been voluntarily withdrawn.
No effect on substantial rights. Under United States v. Cabrera‑Rivas and United States v. Heyward, to show that an error affected “substantial rights” on plain‑error review, the appellant must demonstrate a reasonable probability that the result would have been different but for the error. Durant, who bore the burden, made no showing of how the verdict would change had the jury been instructed on contributory negligence, given the total absence of supporting facts.

The court also notes that any supposed link between contributory negligence and Durant’s “capacity” (private person versus officer) is unexplained. If any evidence of plaintiff fault existed, it would apply equally to both theories of gross negligence.

Accordingly, the court holds there was no plain error in the omission of a contributory negligence instruction, and certainly no error that undermined the fairness, integrity, or public reputation of the proceedings.

E. Damages, Emotional Distress, and Remittitur

1. Maryland’s Stringent “Shock the Conscience” Standard

Under Maryland law, a damages award is “excessive” only if it “shocks the conscience of the court” (Banegura v. Taylor; Conklin v. Schillinger). The test is famously stringent: the award must be such that “all mankind” would be “ready to exclaim against it at first blush.”

Maryland appellate courts accord “broad discretion” to trial judges in deciding whether this standard is met (Hebron Volunteer Fire Dep’t v. Whitelock), and they strongly caution against substituting the court’s judgment for the jury’s (Brooks v. Jenkins). Federal courts applying Maryland law in diversity or supplemental‑jurisdiction contexts must respect that state standard while reviewing the district court’s remittitur decision for abuse of discretion (Stamathis; Gasperini).

2. Durant’s Attacks on the $250,000 Award

Durant advanced four main reasons why the jury’s $250,000 award was excessive:

The encounter was “relatively brief,” involving only “display” of a weapon, not pointing it at anyone.
No evidence showed that Nicholson received medical, psychiatric, or psychological treatment.
Supposed inconsistencies in testimony concerning the severity and consequences of Nicholson’s distress (reasons for attending military school, fear of police, impact on grades).
Improper closing argument appealing to “community standards” and societal concerns, allegedly inflaming the jury to overcompensate Nicholson.

3. The Court’s Response

The Fourth Circuit rejects each line of attack.

First, it rebukes Durant’s characterization of the incident as a “relatively brief” “display” of a gun:

The weapon was drawn and held at “low ready,” a tactical posture just short of aiming and firing at “center mass,” with a round in the chamber.
Durant himself described the gun as “ready to fire,” requiring only a trigger pull.
The encounter involved a 16‑year‑old child who credibly believed he was about to be killed.

Injecting the immediate possibility of lethal force into a routine after‑school moment is, in the court’s view, inherently and profoundly traumatic, particularly for a minor.

Second, the lack of medical treatment does not bar or sharply limit emotional‑distress damages under Maryland law. The court distinguishes cases such as Hoffman v. Stamper and Wheeling v. Selene Fin. LP, where plaintiffs presented only vague testimony of feeling “bad” or “upset” with no physical manifestations. Here, by contrast, Nicholson and multiple family members provided consistent testimony of:

dramatic personality change,
social withdrawal,
sleep disturbances and relocation of sleeping arrangements,
frequent crying, nausea, and fatigue,
avoidance behavior (refusing to walk by the scene, fear of police officers), and
life decisions directly shaped by the incident (enrolling in a distant military school, family moving).

The district court described this testimony as “credible and consistent,” and the Fourth Circuit notes that Maryland precedent supports substantial noneconomic awards based on such evidence, even absent medical bills or treatment. It cites:

Brooks v. Jenkins, upholding a $200,000 award (inflation‑adjusted over $270,000) for emotional distress after police shot a family dog, despite veterinary bills of only $6,100; and
Francis v. Johnson, rejecting the idea that compensatory damages must be reduced when a plaintiff does not seek psychological treatment.

Third, as to purported inconsistencies in testimony, the court observes that resolving such discrepancies is squarely the jury’s function. The appellate court does not reweigh credibility or second‑guess the jurors’ reconciliation of minor differences in recollection, particularly where they do not fundamentally negate the picture of severe, ongoing distress.

Fourth, regarding closing argument, Durant pointed to two passages where Nicholson’s counsel spoke of “standards for our community” about when it is acceptable to “draw guns on these children” and warned that if someone simply walking behind you is “sufficient grounds to pull a firearm,” we live in “a very different and very much more dangerous country” than our constitutional system contemplates.

The court notes several reasons these remarks do not warrant remittitur or a new trial:

Broad latitude in closing argument. Citing United States v. Johnson and United States v. Ollivierre, the court reiterates that counsel are afforded “great latitude” in closing. References to community standards or generalized societal conditions do not automatically cross the line into impermissible “community conscience” arguments, especially absent misstatements of fact or law.
No objection and curative instructions. Durant never objected at trial to the closing remarks. The district court instructed the jury that:
- arguments of lawyers are not evidence, and
- compensatory damages must not be based on “speculation or sympathy,” but only on the evidence.
As other circuits have recognized (In re Isbell Records; Ayala‑García), such standard instructions substantially mitigate any potential prejudice from arguably impassioned rhetoric.
Isolated, not pervasive, comments. The opinion cites cases like Burke v. Regalado and United States v. Canty, where only extensive, repeated emotional appeals have been deemed problematic. Here, the “community standards” remarks were brief and isolated, not the centerpiece of the closing.

Given the high deference owed, the substantial evidence of severe distress, and the moderate size of the award relative to other Maryland noneconomic damages precedents, the Fourth Circuit holds that the verdict does not shock the conscience, and the district court did not abuse its discretion in refusing remittitur.

F. Precedents Cited and Their Influence

1. Rule 59(e) and Abuse-of-Discretion Framework

Robinson v. Wix Filtration Corp. LLC: Establishes that Rule 59(e) motions are extraordinary remedies, reserved for changes in law, new evidence, or correction of clear error/manifest injustice.
Hutchinson v. Staton: Clarifies that “mere disagreement” with a ruling does not justify Rule 59(e) relief; clear error means a decision that is factually unsupported or legally unjustified.

These cases frame Durant’s post‑trial challenge as an uphill effort; the appellate court emphasizes that no such extraordinary circumstances are present.

2. Supplemental Jurisdiction and Limits on Unpleaded Claims

Crosby v. City of Gastonia: Confirms abuse‑of‑discretion review for the exercise of supplemental jurisdiction over state‑law claims.
United States v. Henry: Defines abuse of discretion as acting arbitrarily, ignoring relevant factors, or relying on incorrect premises.
Pinkley, Inc. v. City of Frederick: Serves as the principal warning against awarding judgment on a wholly unpleaded state‑law theory. The court distinguishes it by showing that, unlike there, Nicholson expressly pled a state‑law claim (gross negligence) and never disavowed it.
Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc. (Gregory, J., concurring/dissenting): Quoted for the idea that evidence that merely “incidentally” supports a different claim than pled does not justify treating that claim as in the case.

3. Pleading Standards and Textual Interpretation

Bell Atl. Corp. v. Twombly: The touchstone for Rule 8(a)(2)’s “short and plain statement” and “fair notice” standard.
Rush v. Kijakazi: Used to interpret the ordinary disjunctive meaning of “or” in statutory and complaint language.
Bruesewitz v. Wyeth LLC: Referenced for the function of “and” as a coordinating conjunction linking independent ideas, supporting the view that a single sentence can plead dual theories.

4. Jury Instructions, Plain Error, and Defenses

Gregg v. Ham: Sets forth the four‑part plain‑error standard in civil jury instruction cases.
United States v. Williams: Holds that courts need not sua sponte instruct on affirmative defenses where the party fails to request them and the record does not support them.
United States v. Cabrera‑Rivas and United States v. Heyward: Define the “substantial rights” prong of plain‑error review, placing a heavy burden on the appellant.

5. Maryland Gross Negligence and Contributory Negligence

Liscombe v. Potomac Edison Co. and Saba v. Darling: Both highlight Maryland’s unresolved position on whether contributory negligence bars gross‑negligence claims, making it hard to label any failure to give such an instruction as “plain error.”
Ramos v. Southern Maryland Elec. Co-op., Inc.: Observes that Maryland courts have “never held” that contributory negligence does not bar gross negligence, reinforcing that the issue remains open.

6. Damages and Emotional Distress under Maryland Law

Banegura v. Taylor and Conklin v. Schillinger: Provide the “shock the conscience” and “all mankind” formulation for excessive verdicts.
Hebron Volunteer Fire Dep’t, Inc. v. Whitelock: Stresses trial courts’ broad discretion in evaluating jury awards.
Brooks v. Jenkins: Upholds a substantial non‑economic award with minimal economic damages, illustrating that emotional harm itself can justify significant compensation.
Francis v. Johnson: Rejects any requirement that plaintiffs prove psychological treatment to support emotional‑distress damages.
Hoffman v. Stamper and Wheeling v. Selene Fin. LP: Show the other side of the line—where generalized complaints of feeling “bad” or “upset,” without physical manifestations, are insufficient to justify large awards.

7. Argument to the Jury and Counsel’s Latitude

United States v. Johnson and United States v. Ollivierre: Emphasize the “great latitude” afforded counsel in closing arguments.
In re Isbell Records, Inc., Hicks v. Collins, United States v. Ralston, Burke v. Regalado, United States v. Canty, and United States v. Ayala‑García: Collectively support the proposition that:
- improper argument warrants relief only if it is pervasive and clearly prejudicial;
- isolated or “lamenting” comments on societal conditions are generally permissible; and
- standard instructions that arguments are not evidence often cure potential prejudice.

V. Complex Concepts Simplified

Several key doctrines may benefit from non‑specialist explanation:

1. Gross Negligence (Maryland Law)

Ordinary negligence is a failure to exercise reasonable care. Gross negligence is qualitatively more serious. Maryland cases describe it as:

“intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another,” or
a “thoughtless disregard of the consequences” without any effort to avoid harm.

It is not a mere mistake or lapse—gross negligence borders on willful or reckless indifference to the safety and rights of others. Here, the jury’s finding that an off‑duty officer deliberately drew a loaded, ready‑to‑fire gun on an unthreatening teenager, without any legal justification, readily fits that category.

2. Capacity: Officer vs. Private Person

A government official can act:

In official capacity: exercising state authority (e.g., making an arrest). Federal civil rights liability under 42 U.S.C. § 1983 generally requires such “state action” or conduct “under color of state law.”
In private capacity: acting as an ordinary citizen, with no special governmental status for that act (e.g., a police officer fighting with a neighbor over a personal matter).

The same physical act can sometimes be argued either way. In Nicholson’s case, the jury evidently concluded that Durant was not acting under color of law (hence rejection of constitutional claims), but still found him liable under state tort law as a private actor who committed gross negligence.

3. Supplemental Jurisdiction

Federal courts have limited original jurisdiction—primarily over federal questions and certain diverse‑citizenship cases. When a plaintiff brings a federal claim (here, under § 1983), the court can hear related state‑law claims under “supplemental jurisdiction” if they arise from the same facts. This is codified in 28 U.S.C. § 1367.

In Nicholson, the same event (Durant’s gun‑brandishing encounter) underpinned both the § 1983 claims and the state‑law gross negligence claim. That common factual core justified the district court’s authority to hear all of them together.

4. Rule 59(e) and New Trial Nisi Remittitur

Rule 59(e) Motion to Alter or Amend Judgment: A post‑trial request asking the trial court to correct or change the judgment. It is not a chance to re‑argue the case; it is reserved for new evidence, changes in law, or clear error/manifest injustice.
New Trial Nisi Remittitur: “Nisi remittitur” is a traditional common‑law term. The court conditionally grants a new trial unless (“nisi”) the plaintiff agrees to remit (reduce) part of the damages. It is used when a verdict is viewed as excessive but not so tainted as to require a full retrial on liability.

5. Contributory Negligence

Contributory negligence means the plaintiff’s own lack of due care contributed to the accident or harm. In jurisdictions like Maryland that follow “pure contributory negligence,” any fault by the plaintiff—even 1%—normally bars recovery in an ordinary negligence case.

Whether this strict rule also bars recovery for a defendant’s gross negligence is unsettled in Maryland. The Fourth Circuit therefore treated any alleged omission of a contributory negligence instruction in this gross‑negligence case as, at most, subject to serious legal doubt—not the kind of clear, obvious error that can be labeled “plain.”

6. Plain Error Review

Plain error is a demanding appellate standard used when a party did not properly object in the trial court. The appellant must show:

an error occurred,
the error was “plain” (clear or obvious under current law),
it affected substantial rights (likely changing the outcome), and
it seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Durant could not meet this standard because there was no evidence of plaintiff negligence, Maryland law was unsettled, he himself had withdrawn the instruction, and he could not show the outcome would likely have differed.

7. Emotional Distress Damages without Medical Treatment

Maryland law does not require a plaintiff to see a doctor or therapist to recover for emotional harm. The key is proof that the emotional distress is:

real,
serious, and
often accompanied by some physical manifestations (e.g., insomnia, nausea, crying, avoidance behavior).

Family and the plaintiff’s own testimony can be enough if it paints a compelling, consistent picture. Formal medical bills simply make the harm easier to quantify; their absence is not fatal.

VI. Impact and Significance

A. For Civil Rights and Police-Misconduct Litigation

The most immediate practical lesson is for lawyers litigating cases involving off‑duty officers or disputed “state action”:

Plead alternative capacity theories clearly. Nicholson’s counsel embedded personal‑capacity exposure in the gross negligence count through phrases like “no constitutional or legally valid basis” and explicit references to “personal liability” and “alternative” theories. The case shows that such drafting, even if not perfect, can be enough to preserve state tort theories even if § 1983 claims fail on “color of law” grounds.
State‑law torts can succeed where constitutional claims fail. Here, the jury vindicated Nicholson’s harm through a state‑law gross‑negligence verdict despite rejecting federal and state constitutional claims. Plaintiffs should routinely include robust state‑law tort claims in § 1983 cases, especially in jurisdictions like Maryland where official immunity is not a defense to gross negligence.

B. For Pleading and Jurisdictional Strategy

The decision reinforces a pragmatic, non‑formalistic approach to both pleading and supplemental jurisdiction:

Plaintiffs are not required to label every capacity or jurisdictional theory so long as the complaint’s text, read fairly, provides notice of the grounds and the factual basis for relief.
Defendants who foresee personal‑capacity exposure to state‑law claims must preserve objections early, not wait for an adverse verdict and then argue that a core theory was never pled.
Federal courts may exercise supplemental jurisdiction over alternative formulations of a single state‑law claim arising from the same facts, without requiring a separate jurisdictional statement for each capacity theory.

C. For Trial Practice: Jury Instructions and Closing Arguments

Nicholson underscores two recurring trial practice themes:

Instructional requests must be preserved. A party who withdraws a requested instruction—especially on a defense that is questionable under state law—will face an immense hurdle on appeal under plain‑error review. Strategic withdrawals at trial cannot easily be recast as structural errors later.
Closing arguments are given wide latitude, but objections matter. Arguments invoking community standards and the broader implications of juror decisions will rarely justify new trials unless they are pervasive, obviously inflammatory, and uncorrected by instructions. Defense counsel must object contemporaneously if they believe lines have been crossed.

D. For Damages in Emotional Harm Cases

The case is also a data point in the evolving landscape of noneconomic damages:

$250,000 for primarily emotional and psychological harm, documented through lay testimony and behavioral changes but without formal medical treatment, is well within the acceptable range under Maryland’s “shock the conscience” standard.
Civil rights plaintiffs, particularly minors, can obtain meaningful compensation for the long‑term psychological trauma of brief but life‑threatening encounters, especially with armed authority figures.
Defendants should recognize that “no medical bills” is not a strong stand‑alone argument for remittitur where the evidence of lived emotional impact is compelling.

VII. Conclusion

Nicholson v. Durant is not a headline‑grabbing doctrinal revolution, but it is a consequential refinement of several important areas of civil practice in the Fourth Circuit:

It confirms that fairly drafted complaints can support alternative capacity theories of state‑law liability, even when the caption or counts are not meticulously separated into “official” and “individual” headings.
It clarifies that supplemental jurisdiction comfortably encompasses such alternative state‑law formulations when they arise from the same core facts as the federal claims.
It applies a stringent version of plain‑error review to omitted instructions on affirmative defenses, particularly in the absence of supporting evidence and in areas where underlying state law is unsettled.
It reinforces Maryland’s strong deference to jury determinations of noneconomic damages where credible testimony supports real, enduring emotional and physical consequences from a defendant’s grossly negligent conduct.

In practical terms, the opinion sends clear signals:

Draft complaints with alternative, personal‑capacity theories in mind when suing government actors.
Preserve objections and instructional requests at trial if you intend to rely on them on appeal.
Recognize that juries may justifiably place a high value on the psychological safety of children confronted with lethal force, even in encounters that last only minutes and leave no physical scars.

For practitioners litigating in the Fourth Circuit, especially in Maryland, Nicholson v. Durant stands as an instructive precedent on the interplay of pleading, jurisdiction, jury instructions, and emotional‑distress damages in cases arising from off‑duty police misconduct.