Henry v. Oluwole

Civil Procedure v. Olakunle Oluwole, M.D., Defendant-Appellant^*

Defendant-Appellant Olakunle Oluwole appeals from the entry of a default judgment in the U.S. District Court for the District of Connecticut (Underhill, J.) awarding $100,000 in noneconomic damages in favor of Plaintiff-Appellee Laura Henry. Henry filed suit against Oluwole and their former employer, Bristol Hospital, alleging that Oluwole had sexually assaulted her. Shortly after Henry filed her complaint, Oluwole was seriously injured in a motorcycle accident, and he maintains that the circumstances of his recovery prevented him from receiving timely notice of the action. Oluwole did not initially appear, and the district court entered a default judgment against him. Five years after Henry filed suit, Oluwole entered an appearance. He moved to set aside the default judgment, but the district court denied his motion. The case against Bristol then proceeded to a jury trial. The jury found that Henry had failed to prove that Oluwole sexually assaulted, assaulted, or battered her. Following the jury verdict, the district court vacated the default judgment against Oluwole as to Henry’s assault and battery claims — because those claims were inconsistent with the jury verdict — but left in place the default judgment as to several other claims. On appeal, Oluwole argues that the district court erred when it denied his motions to set aside the default judgment. We agree. The district court should have set aside the default judgment pursuant to the factors set forth in Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993). And following the jury verdict, the district court should have vacated the entire default judgment as inconsistent with the verdict pursuant to the principle set forth in Frow v. De La Vega, 82 U.S. 552 (1872). Accordingly, we REVERSE the judgment of the district court and REMAND with instructions to enter judgment for Oluwole. Judge Kearse dissents in a separate opinion. STEVEN MENASHI, C.J. Defendant-Appellant Olakunle Oluwole appeals from a final judgment entered on September 29, 2021, in the U.S. District Court for the District of Connecticut (Underhill, J.) awarding $100,000 in noneconomic damages to Plaintiff-Appellee Laura Henry. In 2013, Henry filed suit against Oluwole and their former employer, Bristol Hospital (“Bristol”), alleging that Oluwole had sexually assaulted her. Henry asserted claims against Oluwole for assault, battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. Shortly after Henry filed her complaint, Oluwole was seriously injured in a motorcycle accident, and he maintains that the length and circumstances of his recovery from the accident prevented him from receiving timely notice of the action. Oluwole did not initially appear, and the district court entered a default judgment against him as to liability but not as to damages. Five years after Henry filed suit — and after Bristol had proceeded to discovery and filed a motion for summary judgment — Oluwole entered an appearance. He moved to set aside the default judgment, but the district court denied his motion. The case against Bristol then proceeded to trial. The jury returned a verdict in favor of Bristol, finding that Henry had failed to prove that Oluwole sexually assaulted, assaulted, or battered her. Following the jury verdict, the district court vacated the default judgment against Oluwole as to assault and battery — holding that those claims were inconsistent with the jury verdict — but it left in place the default judgment as to Henry’s other claims. The district court then held hearings on damages. It declined to award economic damages and punitive damages to Henry, but it entered a final judgment ordering Oluwole to pay Henry $100,000 in noneconomic damages. We agree with Oluwole that the district court erred when it denied his motions to set aside the default judgment. Prior to the jury verdict, the district court should have set aside the default judgment pursuant to the factors set forth in Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993). And following the jury verdict, the district court should have vacated the entire default judgment as inconsistent with the jury verdict pursuant to the principle set forth in Frow v. De La Vega, 82 U.S. 552 (1872). We reverse the judgment of the district court and remand with instructions to enter judgment for Oluwole. BACKGROUND In 2011, both Henry and Oluwole were employees of Bristol Hospital in Connecticut, where Oluwole was a surgeon. On June 11, 2011, Henry and Oluwole had sexual relations at his office at Bristol. According to Henry’s complaint, the encounter was not consensual: Oluwole “grabbed her arm, pulled her towards his body, and attempted to kiss her.” App’x 14 ( 68). Two years later, Henry filed this action in federal court against Oluwole and Bristol. Henry’s complaint asserts eleven claims against Oluwole: six claims of battery and one claim each of assault, false imprisonment, intentional infliction of emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), and negligence. Oluwole did not appear in the action for several years, which he later attributed to a motorcycle accident that occurred on October 1, 2013, which caused a severe traumatic brain injury with multiple hemorrhagic contusions and fractures. Oluwole reported that he remained in a coma for three weeks and underwent several procedures, including a craniotomy, after the accident. Oluwole said that after transferring between care facilities, he was ultimately discharged from a rehabilitation center in January 2014 and moved in with his parents in New Jersey, with whom he resided until late 2018 when he appeared in this action. The record indicates that Oluwole was not properly served with process until 2014.1 On April 11, 2014, an affidavit of service was filed with the district court. It stated that in March 2014 a summons was affixed to Oluwole’s last known home address in Kingston, New York, and another summons was mailed to that address. On February 4, 2015, Henry moved for entry of default against Oluwole. The clerk of court noted the default on the docket on February 12, 2015. In March, Henry moved for a “default judgment,” which the district court entered — except as to damages — on September 22, 2015. Because the district court entered a default judgment only with respect to liability and not to damages, this was not a final default judgment.² Meanwhile, Bristol and Henry continued to litigate in the ordinary course. Nearly three years later, in August 2018, Oluwole’s counsel entered a notice of appearance and, shortly thereafter, moved to set aside the default judgment. Henry opposed the motion and provided some evidence that Oluwole had been aware of her lawsuit since at least November 2015, when he sent Henry a Facebook message that he “was in a very serious accident” and that “[he] couldn’t face [Henry] in court because [he] was felt to have amnesia.” The district court denied the motion on May 6, 2019, finding that Oluwole’s default had been willful and that granting his motion would prejudice Henry. At the same time, the district court acknowledged that Oluwole was likely to mount a meritorious defense because “Oluwole asserts that the disputed sexual encounter with Henry was consensual” and he had identified evidence to support that claim. S. App’x 5-6; see Enron Oil, 10 F.3d at 98 (“The test of such a defense is…whether the evidence submitted, if proven at trial, would constitute a complete defense.”). Oluwole moved for reconsideration, which the district court denied on May 14, 2019. After Oluwole appeared, he was deposed by Bristol and Henry in advance of trial. The trial commenced on October 21, 2019. Over five days, the jury heard from fourteen witnesses, including both Henry and Oluwole. Oluwole testified that he and Henry had consensual sex on the date in question. The jury found that Henry had not “proven by a preponderance of the evidence that Dr. Oluwole engaged in tortious conduct towards her by sexually assaulting her” and had not “proven by a preponderance of the evidence that Dr. Oluwole engaged in tortious conduct towards her by assaulting or battering her.” App’x 304. These findings absolved Bristol of any liability because Henry’s claims against the hospital were derivative of her claims against Oluwole. Oluwole then filed a second motion to set aside the default judgment against him in light of the jury verdict in favor of Bristol. The district court denied that motion, reasoning that the principle underpinning Frow did not support vacating the default judgment. The district court then proceeded to conduct damages hearings against Oluwole. Significantly, the district court partly reversed itself on the Frow question. The district court explained that if Bristol was not liable to Henry because the jury found that there was no sexual assault, assault, or battery, then Oluwole could not be liable to Henry for assault and battery, which were premised on the occurrence of a sexual assault. Allowing the assault and battery claims to stand would result in the entry of “logically inconsistent judgments” in contravention of Frow. Henry v. Bristol Hosp., Inc., No. 13-CV-00826, 2020 WL 7773418, at *4 (D. Conn. Dec. 30, 2020). But the district court left in place the default judgment against Oluwole with respect to false imprisonment, IIED, NIED, and negligence on the ground that “entry of liability on those counts is not inconsistent with the jury verdict.” Id. The district court explained that although the IIED and NIED claims “rest in part upon the allegations of sexual assault,” those claims also relied on allegations of false imprisonment. Id. at *4 n.4. After another hearing on damages, the district court entered a final judgment ordering Oluwole to pay Henry $100,000 in damages for emotional distress. STANDARD OF REVIEW We review the denial of a motion to set aside entry of a default or a default judgment for abuse of discretion. See Swarna v. Al-Awadi, 622 F.3d 123, 133 (2d Cir. 2010); Powerserve Int’l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001). We review the findings of a district court in connection with a damages award for clear error, Brown v. C. Volante Corp., 194 F.3d 351, 356 (2d Cir. 1999), and questions of law de novo, Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1029 (2d Cir. 1995); see also Rana v. Islam, 887 F.3d 118, 121-22 (2d Cir. 2018). DISCUSSION Oluwole argues that the district court erred both times it denied his motions to set aside the default judgment. We agree. The district court erred when it denied Oluwole’s initial motion to set aside the default judgment pursuant to the Enron Oil factors. The district court erred again when, following the jury verdict in favor of Bristol, it vacated the default judgment as to Oluwole with respect to the assault and battery claims but not the false imprisonment, IIED, NIED, and negligence claims. I The district court abused its discretion when it first denied Oluwole’s motion to set aside the default judgment. Although our standard of review is deferential, the district court’s discretion when considering a motion to set aside a default or a default judgment is “circumscribed.” Enron Oil, 10 F.3d at 95. “[B]ecause defaults are generally disfavored and are reserved for rare occasions, when doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in favor of the defaulting party.” Id. at 96; see also Davis v. Musler, 713 F.2d 907, 915 (2d Cir. 1983); New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005); Powerserve, 239 F.3d at 514. Because of “the policy of favoring judgments on the merits, a glaring abuse of discretion is not required for reversal of a court’s refusal to relieve a party of the harsh sanction of default.” United States v. $22,050.00 U.S. Currency, 595 F.3d 318, 324 (6th Cir. 2010) (internal quotation marks omitted); see also Davis, 713 F.2d at 913; Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 373-74 (D.C. Cir. 1980). The district court’s discretion was especially narrow here because the default judgment entered on September 22, 2015 — which pertained only to liability, with damages yet to be determined — did not constitute a final judgment “and therefore should more appropriately be understood as an entry of default.” Swarna, 622 F.3d at 140; see also Dow Chem. Pac. Ltd. v. Rascator Mar. S.A., 782 F.2d 329, 336 (2d Cir. 1986) (concluding that a default judgment was “in fact…[an] entry of default” because the default judgment “expressly ordered that there be an inquest as to damages and indicated that only thereafter would a final judgment be entered”). For that reason, Oluwole’s motion was properly evaluated under the standard to set aside a default rather than a final default judgment. And “[a]lthough the factors examined in deciding whether to set aside a default or a default judgment are the same, courts apply the factors more rigorously in the case of a default judgment because the concepts of finality and litigation repose are more deeply implicated in the latter action.” Enron Oil, 10 F.3d at 96 (emphasis added) (citation omitted). Accordingly, there is a smaller “range of permissible decisions” available to a district court when a final default judgment has not yet been entered. United States v. Zhong, 26 F.4th 536, 551 (2d Cir. 2022) (quoting Warren v. Pataki, 823 F.3d 125, 137 (2d Cir. 2016)). Pursuant to Federal Rule of Civil Procedure 55(c), a district court may set aside the entry of a default “for good cause,” and it may set aside a final default judgment under Rule 60(b). In deciding whether to relieve a party from a default or a default judgment, a district court considers three factors: “(1) whether the default was willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a meritorious defense is presented.” Enron Oil, 10 F.3d at 96. Willfulness “is the most significant factor” but is not dispositive. In re Orion HealthCorp, Inc., 95 F.4th 98, 104 n.4 (2d Cir. 2024); see also W.B. David & Co. v. De Beers Centenary AG, 507 F. App’x 67, 69-70 (2d Cir. 2013) (“A finding of willfulness is typically enough to let an entry of default stand. This does not mean, however, that once a district court determines that a defaulting party acted willfully it must let the entry of default stand.”). In this case, the district court erred in failing to set aside the default judgment because the second and third Enron factors — prejudice and a meritorious defense — strongly favored lifting the default judgment even if the first factor — willfulness — weighed in the other direction. First, we assume without deciding that the district court did not err in finding that Oluwole’s default was willful in light of the fact that Henry introduced sworn evidence on this point and Oluwole did not. Henry’s sworn statement — and the screenshot of a Facebook message from Oluwole that she introduced — indicates that Oluwole was aware of the lawsuit in November 2015. In the Facebook message, Oluwole writes that he “was in a very serious accident” and “underwent multiple surgeries.” Second Mem. in Opp’n to Def. Oluwole’s Mot. to Set Aside Default J., Ex. 4, Henry v. Oluwole, No. 13-CV-826 (D. Conn. Oct. 31, 2018), ECF No. 275-4. He states that he “couldn’t face [Henry] in court because [he] was felt to have amnesia.” Id. Thus, the message suggests both that Oluwole knew of the lawsuit and that he defaulted due to complications from his injuries. Willfulness in this context “looks to egregious or deliberate conduct,” United States v. Starling, 76 F.4th 92, 102 (2d Cir. 2023) (internal quotation marks omitted), that “was not satisfactorily explained,” SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998); see also Bricklayers & Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 187 (2d Cir. 2015) (“[W]here [a] defendant…does not contend that his non-compliance was due to circumstances beyond his control, an inference of willful default is justified.”) (internal quotation marks omitted). Second, the district court erred in concluding that setting aside the default judgment would have prejudiced Henry. In reaching that conclusion, the district court observed that Henry had already “incurred litigation expenses for over six years, total[ing] 12,000 hours,” and “the parties [Henry and Bristol] have already completed voluminous amounts of discovery and filed dispositive motions.” S. App’x 5. In other words, the district court decided that Henry had litigated long enough and that setting aside the default judgment would delay the proceedings even further. But “delay alone is not a sufficient basis for establishing prejudice. Rather, it must be shown that delay will result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion.” Davis, 713 F.2d at 916 (internal quotation marks and citations omitted); see also Enron Oil, 10 F.3d at 98; Swarna, 622 F.3d at 143. The district court did not find — and the record did not suggest — that setting aside the default judgment would result in the loss of evidence, difficulties in discovery, or fraud and collusion.³ Nor did Henry establish any particularized prejudice that would have resulted from permitting Oluwole to litigate his liability. Although Henry’s case against Bristol had advanced, no trial date had yet been set when Oluwole filed his motion to set aside the default judgment. In fact, the case would not proceed to trial until October 2019, more than a year after Oluwole’s September 2018 motion to lift the default judgment and five months after the district court denied that motion. The district court could have imposed time limits on any discovery or briefing by Oluwole to ensure that the trial would proceed against all defendants in October 2019. Meanwhile, Oluwole himself was deposed by Bristol before its trial. Although Henry’s counsel initially failed to appear for this deposition — due to some dispute about scheduling notice — the district court granted her attorney leave to reopen Oluwole’s deposition. The extra time and expense of such a deposition would not have prejudiced Henry, who not only encountered those costs in litigating against Bristol but also would have incurred the same costs had Oluwole timely answered her complaint. Third, the district court correctly found that Oluwole asserted a potentially meritorious defense, specifically his contention that the “sexual encounter” with Oluwole had been consensual. S. App’x 6. Bristol would ultimately prevail on this very defense — presenting it through Oluwole himself — when it secured a favorable jury verdict in its trial with Henry. In short, because two of the three Enron factors weighed strongly in Oluwole’s favor — even assuming that the remaining factor weighed to some extent against it — we conclude that the district court erred in declining to lift the default judgment. There was at least “doubt…as to whether [the] default should be granted or vacated,” and that doubt should have been “resolved in favor of the defaulting party.” Enron Oil, 10 F.3d at 96. II The district court erred again when, after the jury verdict, it vacated the default judgment with respect to the assault and battery claims against Oluwole but not the false imprisonment, IIED, NIED, and negligence claims. The Frow principle, which prohibits a default judgment that is inconsistent with a judgment on the merits, required vacatur of the entire default judgment because all of Henry’s claims against Oluwole are inconsistent with the jury verdict in favor of Bristol. Each of Henry’s claims against Oluwole is premised on Oluwole having sexually assaulted Henry, but the jury found that no sexual assault, assault, or battery occurred. In this case, the defaulting party, Oluwole, even testified at the trial of the non-defaulting co-defendant, Bristol, the liability of which was entirely derivative of Oluwole’s own. Henry had the same opportunity to examine and to challenge Oluwole’s version of the sexual encounter at the trial against Bristol that she would have had at a trial against Oluwole. She had the same opportunity to present her own version of events. In the end, the jury returned a verdict for Bristol because Henry had failed to prove that Oluwole sexually assaulted, assaulted, or battered her. If we disregard the allegations in Henry’s complaint asserting sexual assault, assault, or battery, then the complaint fails to state any plausible claim against Oluwole. A In Frow, the Supreme Court held that a default judgment that creates an “incongruity” with a judgment on the merits is “unseemly and absurd, as well as unauthorized by law.” 82 U.S. at 554. In that case, fourteen defendants were sued jointly. One defendant defaulted but the claims against the other defendants were dismissed on the merits. The Court reversed the default, explaining that a defaulting defendant has “lost his standing in court,” so he is not entitled to additional notices, to introduce evidence, or to be heard at a hearing. Id. Even so, “if the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike — the defaulter as well as the others.” Id. This longstanding principle has been reaffirmed frequently and recently by the circuit courts. See Escalante v. Lidge, 34 F.4th 486, 495 (5th Cir. 2022) (“Frow prohibits directly inconsistent judgments.”) (internal quotation marks omitted); Arwa Chiropractic, P.C. v. Med-Care Diabetic & Med. Supplies, Inc., 961 F.3d 942, 950-51 (7th Cir. 2020) (explaining that Frow applies when “different results as to the different parties” are “logically inconsistent or contradictory”) (quoting In re Uranium Antitrust Litig., 617 F.2d 1248, 1257-58 (7th Cir. 1980)); In re First T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001) (explaining that Frow provides that “if an action against the answering defendants is decided in their favor, then the action should be dismissed against both answering and defaulting defendants”).⁴ We have also recognized “the ancient common law axiom that a default is an admission of all well-pleaded allegations against the defaulting party.” Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004); see also 10A Wright, Miller & Kane, Federal Practice & Procedure §2688.1 (4th ed.) (“If the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.”). The axiom means that a defaulting party “does not admit conclusions of law.” Wright, Miller & Kane, supra, §2688.1; see also Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). In this respect, the standard for whether to award a default judgment resembles that applicable to a motion to dismiss.⁵ To enter a default judgment, a district court must determine whether — after taking all well-pleaded allegations as true and making reasonable inferences in the plaintiff’s favor — the plaintiff’s “allegations establish…liability as a matter of law.” Finkel, 577 F.3d at 84; see also City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 n.23 (2d Cir. 2011) (explaining that “a district court may not enter a default judgment unless the plaintiff’s complaint states a valid facial claim for relief” and citing cases). To that end, a district court considering whether to grant a default judgment “need not agree that the alleged facts constitute a valid cause of action” and it may even “require proof of necessary facts” to establish liability. Au Bon Pain, 653 F.2d at 65; see also Wright, Miller & Kane, supra, §2688.1 (noting that “the court, in its discretion, may require some proof of the facts that must be established in order to determine liability”). Only after the district court is convinced that the facts meet the elements of the relevant cause of action — whether those facts are established by well-pleaded allegations or proven by admissible evidence — may the district court enter a default judgment. Thus, this appeal implicates two basic principles. First, to determine whether Henry’s complaint justified the entry of a default judgment, we must consider whether her allegations “constitute a valid cause of action.” Au Bon Pain, 653 F.2d at 65. Second, to comply with the Frow principle prohibiting inconsistent judgments, we must disregard the allegations in Henry’s complaint that conflict with the jury verdict. Because the jury determined that Henry had not proved that Oluwole committed a sexual assault, an assault, or a battery, we do not credit her allegations that he did. The question is whether the remaining well-pleaded allegations — taken as true, with reasonable inferences in Henry’s favor — suffice to “establish…liability as a matter of law.” Finkel, 577 F.3d at 84. Only if the remaining factual allegations independently establish liability may the default judgment be sustained. The district court applied this method when it vacated the default judgment with respect to the six battery and one assault claims. The district court explained that because the “jury specifically found that Henry had not proven by a preponderance of the evidence that Dr. Oluwole committed sexual assault, assault, or battery against her,” the “entry of default judgment with regard to liability on the counts alleging sexual assault, battery, and assault is logically inconsistent with the jury’s verdict.” Henry, 2020 WL 7773418, at *4. The district court should have vacated the entire default judgment against Oluwole, however, because the jury verdict is also incongruent with the four remaining claims of false imprisonment, IIED, NIED, and negligence. The operative complaint bases those claims on allegations of a sexual assault. If one disregards the allegations in Henry’s complaint of a sexual assault, an assault, or a battery, then the complaint fails to state a claim as to any of the claims. B This analysis requires us to consider the factual allegations in the complaint. We begin by detailing the facts pleaded in the “Facts” section of the complaint and in the sections asserting claims for false imprisonment, IIED, NIED, and negligence. We then determine whether, after disregarding the allegations that are inconsistent with the jury verdict, the remaining facts are legally sufficient to state a claim. 1 The “Facts” section of the complaint alleges that around April 2011 Henry contracted with Oluwole to receive post-operative treatment for a lap band procedure that Henry had undergone in 2009 with a different surgeon. On June 11, 2011, Henry contacted Oluwole and informed him that she was having difficulty keeping food and fluids in her stomach. Oluwole told Henry to meet him at Bristol’s operating room. When Henry arrived at the operating room, Oluwole said that he needed to retrieve a needle for the procedure from his office and told her to accompany him to his office, which was located on the hospital grounds. Henry and Oluwole approached the door to his office building. Henry alleges that, as they walked through the front door of the building, Oluwole “grabbed her arm, pulled her towards his body, and attempted to kiss her.” App’x 14 ( 68). If this touching were nonconsensual, the allegation would establish a battery under Connecticut law. See Alteiri v. Colasso, 168 Conn. 329, 334 n.3 (1975) (noting that “harmful contact” is an element of battery) (quoting Restatement (Second) of Torts §13 (1965)). But in the Bristol trial, the jury specifically found that Oluwole did not batter Henry. As a result, the district court was required to disregard this allegation. The Facts section further alleges that Henry was weak and in pain but was “able to pull away from Defendant Oluwole’s unwelcome sexual assault.” App’x 14 ( 69). Again, because the jury specifically found that Henry had not proved Oluwole’s commission of a sexual assault, the district court was required to disregard this allegation. The Facts section alleges that after pulling away, Henry believed that Oluwole would not assault her again. So she entered Oluwole’s office, at which point he “ordered her to lay on an examining table on her back, and she also noted that there was no other personnel in the building.” Id. ( 71). To access the lap band port around her stomach, Oluwole ordered Henry to “unzip her pants.” Id. ( 72). These allegations do not allege assault, battery, or sexual assault so need not be disregarded. But, Henry alleges, “[i]mmediately” after she followed Oluwole’s instructions, Oluwole “brutally and violently grabbed her by the hair and yanked her mouth [o]nto his exposed and erect penis.” Id. at 14-15 ( 73). After Henry attempted to “move her head away,” Oluwole “yanked her head back on his penis a second time, and began violently moving her head back and forth upon his exposed penis.” Id. at 15 ( 74). Henry alleges that Oluwole then “inserted fingers from his free hand into [her] vagina, and then into her anus.” Id. ( 75). At the same time, Henry alleges, Oluwole was “grasping her hair and pulling her head back and forth onto his erect penis.” Id. ( 76). These are allegations of battery and sexual assault that are inconsistent with the jury’s findings.⁶ Henry further alleges that she resisted the entire time and that Oluwole did not “‘complete’ his…sexual assault.” App’x 15 (