Hardenbrook et al v. United Parcel Service, Inc.

Filing 202

MEMORANDUM ORDER Defendant's Motion for New Trial (Dkt. No. 158 ) is DENIED. Defendant's Motion to Strike (Dkt. No. 191 ) is GRANTED. Plaintiff's Motion for Extension of Time (Dkt. No. [194)] is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

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Hardenbrook et al v. United Parcel Service, Inc. Doc. 202 I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF IDAHO D A R E L HARDENBROOK, an individual, P A U L GOOCH, an individual and R O B E R T ORLOFF, an individual, Plaintiffs, vs. U N I T E D PARCEL SERVICE, CO., a D e l a w a r e corporation, Defendant. C a s e No. CV07-509-S-EJL M E M O R A N D U M ORDER INTRODUCTION P e n d i n g before the Court in the above entitled matter are: 1) the D e f e n d a n t ' s Motion for New Trial Due to Improper Argument of Counsel and J u r o r Misconduct, 2) Defendant's Motion to Strike, and 3) Plaintiff's Motion for E x t e n s i o n of Time. 1 The parties have fully briefed the motions and they are now r i p e for the Court's consideration. Having fully reviewed the record herein, the C o u r t finds that the facts and legal arguments are adequately presented in the b r i e f s and record. Accordingly, in the interest of avoiding further delay, and b e c a u s e the Court conclusively finds that the decisional process would not be 1 Defendant has also filed a separate Renewed Motion for Judgment as a Matter of Law a n d Alternative Motion for New Trial or to Alter or Amend the Judgment. (Dkt. No. 1 5 7 . ) The Court will address that Motion in a separate written Order. M E M O R A N D U M ORDER - 1 Dockets.Justia.com s i g n i f i c a n t l y aided by oral argument, the motions shall be decided on the record b e f o r e this Court without oral argument. F A C T U A L AND PROCEDURAL BACKGROUND T h e Plaintiffs, Darel Hardenbrook, Paul Gooch, and Robert Orloff, initiated t h i s action on November 2, 2007 by filing a Complaint in state court against the D e f e n d a n t , United Parcel Service, Co. ("UPS"), alleging retaliation in violation of I d a h o public policy, breach of contract, and breach of the implied covenant of g o o d faith and fair dealing. (Dkt. No. 1, Att. 2.) On December 5, 2007, UPS r e mo v e d the case to this Court on diversity grounds. (Dkt. No. 1.) The dispute b e t w e e n the parties relates to employment actions taken by UPS as to each of the P l a i n t i f f s ; Mr. Gooch and Mr. Hardenbrook were terminated and Mr. Orloff was d e mo t e d . The Plaintiffs' complaint alleged that UPS' employment actions against t h e m were made in retaliation to their inquiries regarding the Department of T r a n s p o r t a t i o n ' s ("DOT") hours of service regulations. (Dkt. No. 1, Att. 2, p. 2.) T h e DOT regulations prohibit drivers of commercial vehicles from driving if they h a v e exceeded a specified number of work hours for a prescribed period of time. U P S denied the allegations and filed a Motion for Summary Judgment. (Dkt. No. 40.) O n December 8, 2009, this Court entered an Order granting in part and d e n y i n g in part the Motion for Summary Judgment. (Dkt. No. 84.) The Court's O r d e r dismissed all of Mr. Orloff's claims against UPS and dismissed two of the MEMORANDUM ORDER - 2 t h r e e claims raised by both Mr. Gooch and Mr. Hardenbrook. Eventually, Mr. G o o c h ' s claims were resolved by the parties and only Mr. Hardenbrook's claim for w r o n g f u l termination in violation of public policy remained. (Dkt. No. 97.) T h e r e a f t e r , the parties filed Motions in Limine, Trial Briefs, Proposed Voir Dire, a n d related pretrial filings. The Court entered Orders on certain of the Motions in L i mi n e . (Dkt. Nos. 118, 119, 123.) Trial began on January 12, 2010. The jury r e t u r n e d a Special Verdict on January 21, 2010 in favor of Mr. Hardenbrook a w a r d i n g a total amount of damages of $1,476,367.00. (Dkt. No. 142.) On March 4, 2010, UPS filed its post-trial Motion for a New Trial Due to I mp r o p e r Argument of Counsel and Juror Misconduct. The parties each filed M e mo r a n d u ms , Declarations, Affidavits and other materials regarding the Motion. U P S has also filed a Motion to Strike certain of Mr. Hardenbrook's Declarations. M r . Hardenbrook has countered by filing a Motion for Extension of Time to File A f f i d a v i t s . The Court now takes up these pending Motions. 2 DISCUSSION 1 . Motion to Strike and Motion for Extension of Time U P S has filed a Motion to Strike the Affidavits of Juror 2 and 7 filed by Mr. H a r d e n b r o o k in support of his response brief opposing UPS's Motion for New T r i a l . (Dkt. No. 191.) The Motion to Strike argues the Affidavits should not be c o n s i d e r e d as they are untimely as provided for in Rule 59(c). Rule 59(c) states 2 In addition, both sides have filed Bills of Costs and a Motions for Attorney Fees which are r e f e r r e d to Chief Magistrate Judge Dale. (Dkt. Nos. 152, 153, 161, 162, 163, 184.) These motions w i l l be ruled upon following the issuance of this Order. M E M O R A N D U M ORDER - 3 t h a t "[w]hen a motion for new trial is based on affidavits, they must be filed with t h e motion. The opposing party has 14 days after being served to file opposing a f f i d a v i t s . The Court may permit reply affidavits." In this case, UPS filed its mo t i o n on March 4, 2010. Mr. Hardenbrook filed his response and supporting A f f i d a v i t s on March 29, 2010. M r . Hardenbrook has in turn filed a Motion for Extension of Time in which t o file the Affidavits pursuant to Rule 6(b)(1)(B) which provides that the Court ma y , for good cause, extend the time for doing an act where the party failed to act b e c a u s e of excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B). Here, Plaintiff's c o u n s e l argues its filings were timely because the Court's electronic notification g e n e r a t e d a due date of March 29, 2010 which they rely upon as if it were an order o f the Court setting such deadline. (Dkt. Nos. 158, 195.) Further, Plaintiff's c o u n s e l points to Local Rule 7.1(c) which requires responsive briefing to be filed w i t h i n twenty-one days after service. As such, Plaintiff's counsel argues they filed t h e Affidavits timely on March 29, 2010. T h e Juror Affidavits are untimely. Rule 59(c) is clear that the Plaintiff had f o u r t e e n days in which to file his opposing affidavits. The electronic notification d a t e is an automated function of the Court's electronic filing system and does not s t a n d as an Order of the Court. The automated date is not an order of the Court as d e f i n e d in the Electronic Case Filing Procedures located on the Court's website, w w w . i d . u s c o u r t s . g o v . See Dist. Idaho Loc. Civ. R. 5.1(b); Electronic Case File P r o c e d u r e s (amended 2009), p. 9-10 at ¶ 12(A). The Plaintiff's reliance upon such MEMORANDUM ORDER - 4 d a t e is in error. The general briefing schedule for filing responsive materials found i n Local Rule 7.1(c) likewise does not trump Rule 59(c). As such, the Motion to S t r i k e shall be granted. Further, the Court finds the Plaintiff has failed to show g o o d cause to extend the time for filing due to excusable neglect pursuant to Rule 6 ( b ) ( 1 ) ( B ) . Accordingly, the Motion for Extension of Time is denied. The A f f i d a v i t s will not be considered by the Court in ruling upon the Motion. 2 . Rule 59(a) Motion for New Trial Due to Improper Argument of Counsel a n d Juror Misconduct U P S seeks a new trial pursuant to Rule 59(a) due to 1) improper argument o f Plaintiff's counsel and 2) juror misconduct. Mr. Hardenbrook opposes the mo t i o n arguing Plaintiff counsel's conduct was not improper, the jury was not p r e j u d i c e d , and Juror Number 4's conduct did not put extraneous evidence before t h e jury that prejudiced the verdict. A. Conduct of Counsel U P S asserts that Plaintiff counsel's continuous unsubstantiated r e p r e s e n t a t i o n s to the jury that UPS violates DOT reporting regulations were such t h a t the jury was improperly influenced in reaching its verdict. This is evidenced, U P S contends, by the nature and frequency of the comments, irrelevance of the c o mme n t s to the issues before the jury, the manner in which the comments were t r e a t e d , the strength of the case, and the verdict itself. (Dkt. No. 158.) In r e s p o n s e , Plaintiff counters that it did not engage in misconduct, any misconduct t h a t may have occurred was cured by the Court's instructions, UPS waived any MEMORANDUM ORDER - 5 r i g h t to seek a new trial on this basis, and UPS has not shown that the jury verdict w a s the result of passion and prejudice. (Dkt. No. 177.) ( 1 ) Legal Standard for Rule 59(a) Motion T h e motion is made pursuant to Rule 59(a) which states, in relevant part, " [ t ]h e court may, on motion, grant a new trial on all or some of the issues­and to a n y party­...after a jury trial, for any reason for which a new trial has heretofore b e e n granted in an action at law in federal court." Fed. R. Civ. P. 59(a). " G e n e r a l l y , misconduct by trial counsel results in a new trial if the `flavor of mi s c o n d u c t sufficiently permeate[s] an entire proceeding to provide conviction t h a t the jury was influenced by passion and prejudice in reaching its verdict.'" H e m m i n g s v. Tidyman's Inc., 285 F.3d 1174, 1192 (9th Cir. 2002) (quoting Kehr v . Smith Barney, 736 F.2d 1283, 1286 (9th Cir.1994)); see also Settlegoode v. P o r t l a n d Public Schools, 371 F.3d 503, 517 (9th Cir. 2004). In evaluating any possible prejudice from attorney misconduct, we consider " t h e totality of circumstances, including the nature of the comments, their f r e q u e n c y , their possible relevancy to the real issues before the jury, the manner in w h i c h the parties and the court treated the comments, the strength of the case, and v e r d i c t itself." Hemmings, 285 F.3d at 1193 (citation omitted). Often "a c o mb i n a t i o n of improper remarks" will demonstrate prejudicial impact. Fineman v . Armstrong World Indus., Inc., 980 F.2d 171, 207 (3rd Cir. 1992). "Great d e f e r e n c e is given to the trial judge to gauge prejudicial effect of attorney mi s c o n d u c t . " McIntosh v. Northern Cal. Universal Enterprises, Inc., 2010 WL MEMORANDUM ORDER - 6 2 6 9 8 7 4 7 *12 (E.D. Cal. 2010). 3 "[T]he trial judge is in a superior position to e v a l u a t e the likely effect of the alleged misconduct and to fashion an appropriate r e me d y . " Hemmings, 285 F.3d at 1193. (2) Analysis U P S ' s motion points to Plaintiff's counsel's continuous unsubstantiated r e p r e s e n t a t i o n s that: UPS violates Federal law, DOT would not be able to properly i n v e s t i g a t e any violations because UPS does not keep records of supervisor hours, a n d the suggestion that the jury should "send UPS a message" and change UPS p o l i c i e s to protect the motoring public by awarding a substantial verdict. (Dkt. No. 1 5 8 . ) Such statements, UPS maintains, were only for the purpose of inflaming the p a s s i o n s and prejudices of the jury and done consistently, continually, and r e p e a t e d l y throughout the trial beginning with the opening statements and c o n t i n u i n g throughout the leading questions, cross examination, and closing a r g u me n t s . UPS further argues, these comments by Plaintiff's counsel were the s u b j e c t of UPS's motions in limine, were irrelevant and prejudicial, and were o b j e c t e d to by UPS's counsel. The Court sustained the objections and did not a l l o w evidence or jury instructions regarding DOT record keeping regulations. 3 McIntosh v. Northern Cal. Universal Enterprises, Inc., 2010 WL 2698747 *12 (E.D. C a l . 2010) ("[T]he trial judge has considerable discretion in determining whether c o n d u c t by counsel is so prejudicial as to require a new trial. Because the trial judge was p r e s e n t and able to judge the impact of counsel's remarks, we defer to his assessment of t h e prejudicial impact. We recognize the trial court's superior vantage point when e v a l u a t i n g the possible impact of the alleged prejudicial conduct. A printed record is u n a b l e to replicate in full all the circumstances--for example, tones of voices, demeanor o f witnesses and jurors and the like--that occur in the course of an unfolding trial.") ( c i t a t i o n s omitted). M E M O R A N D U M ORDER - 7 U P S further argues the Jury's front pay award was punitive in nature evidencing t h e fact that the Jury was prejudiced and, at the suggestion of Plaintiff's counsel, s o u g h t to punish UPS for alleged violations of DOT record keeping violations. ( D k t . No. 158.) P l a i n t i f f ' s counsel counters that the subject of DOT's record keeping r e g u l a t i o n s was relevant to the retaliation claim as it went to show UPS's mo t i v a t i o n for terminating Mr. Hardenbrook's employment and that the reason g i v e n for his termination was pretextual. (Dkt. No. 177.) Plaintiff argues his o p e n i n g statement was simply argument of what he expected the evidence to show ma d e before the Court had ruled upon the admissibility of such evidence. Further, P l a i n t i f f disputes that any questioning regarding the record keeping regulations d o n e during the course of the trial was such that it "permeated" the trial. Instead, P l a i n t i f f maintains such questions, if any, were only asked of limited witnesses, M r . Moore and Mr. Kenney, and only for a limited period. Moreover, Plaintiff n o t e s that the Court sustained the objections to such questioning and, therefore, U P S suffered no prejudice. Finally, Plaintiff's counsel disagrees that his closing a r g u me n t had an "anthem" or "theme" regarding record keeping regulation v i o l a t i o n s noting any reference to the topic was limited and supported by evidence i n the record and, regardless, any error was properly handled by the Court and in t h e Jury Instructions. MEMORANDUM ORDER - 8 ( a ) Court's instructions P l a i n t i f f argues the Court's Jury Instructions cured any misconduct that may h a v e occurred. "At times, attorney misconduct may be too prejudicial to be cured w i t h instructions." McIntosh, 2010 WL 2698747 *12 (The "cautionary instructions g i v e n to the jury proved to be insufficient to immunize the Jury from the improper a n d inflammatory remarks of plaintiffs' counsel.") (quoting Fineman v. Armstrong W o r l d Indus., Inc., 980 F.2d 171, 206 (3rd Cir. 1992)) and (citing A n h e u s e r - B u s c h , Inc. v. Natural Beverage Distributors, 69 F.3d 337, 346 (9th Cir. 1 9 9 5 ) ) . This was not the case here. T h o u g h Plaintiff's counsel aggressively argued for the admission of e v i d e n c e and inclusion of instructions relating to the DOT regulations, the Court w a s careful to allow such questioning only to the extent it went to show improper mo t i v e on the part of UPS in its termination decision; i.e. UPS fired Mr. H a r d e n b r o o k for reporting potential or alleged violations of DOT regulations in v i o l a t i o n of public policy. The Court did not otherwise allow questioning r e g a r d i n g the DOT regulations or whether UPS violated the regulations and r e f u s e d to include the Plaintiff's proposed instructions on the DOT regulations. 4 I n s t e a d , the Court's Jury instructions made clear that any statements made by the a t t o r n e y s are just argument and not evidence and that the Court will instruct the j u r y on the law that applies to this case. (Dkt. No. 143, Jury Instr. Nos. 1, 3, 5, 7, 4 The Court also excluded the testimony by Mark Burns and David Keeling whose d e p o s i t i o n testimony Plaintiff sought to offer related mainly to the DOT record keeping regulations. M E M O R A N D U M ORDER - 9 1 1 , 14, 15, 17, 23, 33, and 38.) Moreover, throughout the trial the Court was c a r e f u l to caution the Jury that questions and statements by counsel were not e v i d e n c e where it was appropriate and necessary. Therefore, to the extent there w e r e misstatements by Plaintiff's counsel regarding violations of DOT r e g u l a t i o n s , the Court properly cured the error before the Jury during the trial. ( b ) UPS Waiver M r . Hardenbrook also argues UPS has waived its right to raise this motion b e c a u s e it failed to ask for a mistrial prior to the return of the Jury's verdict. B e c a u s e UPS did not move for a mistrial after opening arguments, or assert mi s c o n d u c t as a ground in its Rule 50(a) motion, Mr. Hardenbrook maintains UPS h a s waived its right to raise the argument now. " T h e federal courts erect a `high threshold' to claims of improper closing a r g u me n t s in civil cases raised for the first time after trial." Hemmings, 285 F.3d 1 1 9 3 (quoting Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 6 5 8 (9th Cir. 1986)); see also Settlegoode, 371 F.3d at 517. "The rationale for this h i g h threshold is two-fold. First, raising an objection after the closing argument a n d before the jury begins deliberations permits the judge to examine the alleged p r e j u d i c e and to admonish ... counsel or issue a curative instruction, if warranted." a n d "[t]he second rationale stems from courts' concern that allowing a party to w a i t to raise the error until after the negative verdict encourages that party to sit s i l e n t in the face of claimed error." Id. (citation omitted); see also Settlegoode, 3 7 1 F.3d at 517. MEMORANDUM ORDER - 10 T h o u g h UPS may not have formally raised this issue in its Rule 50(a) M o t i o n nor asked for a mistrial prior to the verdict, the record is clear that UPS o b j e c t e d throughout the trial to such questioning and filed motions to exclude the e v i d e n c e both before trial and before closing arguments. (Dkt. Nos. 88, 90, 95, 1 3 8 . ) As such, the Court does not find UPS waived this argument because it c a n n o t be said that the argument is being raised for the first time post trial. ( c ) Strength of Plaintiff's Case and Jury's Verdict U P S argues the resolution of Mr. Hardenbrook's retaliation claim was a c l o s e question and that he had to rely upon improper arguments regarding the r e c o r d keeping regulations in order to prejudice the Jury and prevail in this case. M r . Hardenbrook asserts just the opposite is true maintaining that his case was s t r o n g and that the verdict was based upon substantial and competent evidence in t h e record, not any improper passion or prejudice. T h e Court finds the arguments on both sides of the case to be strong and, t h u s , the Jury was faced with a close decision. The fact that it was such a close call d o e s not necessarily mean either side's case lacked strength. Instead, it simply s h o w s that the resolution of the case turned on findings of fact. There were facts a n d evidence supporting both parties' positions. The Jury's verdict required it to w e i g h and consider the evidence before it and make the factual findings necessary t o decide the claim. The Court, having viewed the evidence and the resulting v e r d i c t , does not find that any misconduct at trial sufficiently permeated the entire p r o c e e d i n g such that the Jury was influenced by passion and prejudice in reaching MEMORANDUM ORDER - 11 i t s verdict in favor of Mr. Hardenbrook. The Plaintiff's case was strong. The Jury h a d before it evidence upon which they could base the verdict they reached in this c a s e . Moreover, the Court does not find the verdict itself yields any indication that t h e Jury was improperly prejudiced by any misconduct by Plaintiff's counsel. ( 3 ) Conclusion H a v i n g had the benefit of viewing the trial first-hand and now having gone b a c k and reviewed the trial transcript, the Court finds there was no misconduct by P l a i n t i f f ' s counsel that so permeated the trial proceeding such that the Jury was i mp r o p e r l y influenced by passion and prejudiced in reaching its verdict. At trial, t h e Court addressed the issue of what evidence would and would not be allowed in t e r ms of DOT regulations. Any missteps by Plaintiff's counsel regarding the DOT r e g u l a t i o n s were not as prevalent during the trial as UPS represents. Further, w h e r e appropriate, the Court cautioned the Jury during the trial to correct any i mp r o p e r questioning or statements. The Court's instructions to the Jury further c l a r i f i e d what is and is not evidence and the law applicable to this case. The M o t i o n is denied. B . Juror Misconduct U P S also seeks a new trial arguing extraneous evidence was presented to the j u r y by Juror Number 4 which prejudiced the verdict against UPS. (Dkt. No. 158.) (1) Legal Standard for Rule 59(a) Motion Again, Rule 59(a) states, in relevant part, "[t]he court may, on motion, grant a new trial on all or some of the issues­and to any party­...after a jury trial, for MEMORANDUM ORDER - 12 a n y reason for which a new trial has heretofore been granted in an action at law in f e d e r a l court." Fed. R. Civ. P. 59(a). The Ninth Circuit's "juror-misconduct p r e c e d e n t s distinguish between introduction of extraneous evidence to the jury, a n d ex parte contacts with a juror that do not include the imparting of any i n f o r ma t i o n that might bear on the case." United States v. Rosenthal, 454 F.3d 9 4 3 , 949 (9th Cir. 2006) (citation and quotations omitted). "Extraneous-evidence c a s e s involve not only the introduction of evidence per se but the submission of e x t r a n e o u s information (e.g., a file or dictionary) to the jury. Ex parte contacts, by c o n t r a s t , generally do not pertain to any fact in controversy or any law applicable t o the case." Id. (citations omitted). This case is one of "extraneous evidence" and, t h e r e f o r e , it is Mr. Hardenbrook's burden to show there is no reasonable p r o b a b i l i t y of prejudice to UPS despite Juror 4's conduct. See Rosenthal, 454 F.3d a t 949. "Extraneous-information cases...call for more searching review; we grant a n e w trial if `there is a reasonable possibility that the material could have affected t h e verdict.'" Rosenthal, 454 F.3d at 949. Unlike ex parte cases, we generally p l a c e the burden "on the party opposing a new trial to demonstrate the absence of p r e j u d i c e . " Id. "Although the presence of extrinsic material does not always r e q u i r e a new trial, [citations omitted] we carefully review the circumstances and n a t u r e of the material to ensure that jurors deliberate without undue outside p r e s s u r e or influence." Id. "Where extraneous information is imparted, as when p a p e r s bearing on the facts get into the jury room without having been admitted as MEMORANDUM ORDER - 13 e x h i b i t s , or when a juror looks things up in a dictionary or directory, the burden is g e n e r a l l y on the party opposing a new trial to demonstrate the absence of p r e j u d i c e , and a new trial is ordinarily granted if there is a reasonable possibility t h a t the material could have affected the verdict." Sea Hawk Seafoods, Inc. v. A l y e s k a Pipeline Service Co., 206 F.3d 900, 905 (9th Cir. 2000). (2) Juror Number 4's Research I n this case, shortly after the Jury retired to begin their deliberations, the B a i l i f f was summoned to the jury room and advised that one of the jurors, Juror N u mb e r 4, had researched a subject in relation to UPS on the internet. The Bailiff a d v i s e d the Jury to stop their deliberations, immediately removed Juror Number 4 f r o m the jury room, and notified the Court and counsel. The Court went back on t h e record in the presence of the parties to advise them of the issue with Juror N u mb e r 4 and discussed how to proceed. Juror Number 4 was brought into the c o u r t r o o m whereupon the Court questioned him in order to flush out exactly what r e s e a r c h he had conducted, what he saw and discovered, and what he in turn c o n v e y e d to the other jurors. J u r o r Number 4 stated that the preceding evening he was online trying to c a t c h up on work and "just Googled UPS lawsuits." When the search results came u p he saw Robert Orloff's name and he then "closed it off." He went on to state t h a t "I wasn't looking for anything. I wasn't trying to get any information." The C o u r t asked him what was told to the other members of the Jury to which Juror N u mb e r 4 stated: MEMORANDUM ORDER - 14 A s soon as we sat down that's what I told them. I told them exactly t h e same thing that when I sat down that's what I did and so we s t o p p e d right at that point. The first thing they all said is it's not g o i n g to matter one way or the other because I wasn't looking for a n y t h i n g . I'm not ­ I mean, I have no reason to do anything to sway a n y t h i n g one way or the other. ( J u r o r Number 4, Tran.) The Court then asked "I want to be absolutely certain. Y o u ' r e telling the parties the court and counsel that nothing came up except Mr. O r l o f f ' s name?" To which, Juror Number 4 stated: J u s t when the search and it lists everything you know lists everything. I t ' s like every other Google search. All that stuff came up and all I s a w was Orloff. I closed it out at that point. I didn't do any research. I d i d n ' t do anything to look for anything. As soon as we sat down t h a t ' s what I told the jury, too.... ( J u r o r 4, Tran.) The Court excused Juror Number 4 and asked the parties for their i n p u t . Counsel for both parties agreed with the Court that it would be most prudent t o dismiss Juror Number 4 and have the remaining six jurors resume their deliberations. ( 3 ) Analysis I n support of its Motion, UPS submitted an affidavit of a computer expert, S t e v e n Seideman, indicating he was unable to recreate the Google search as Juror N u mb e r 4 had described. (Dkt. No. 159.) UPS concludes that based on this fact, J u r o r Number 4 misstated the truth when he was questioned in open court and mu s t also have misstated the truth about what he revealed to the other members of t h e jury. (Dkt. No. 158.) Further, UPS contends the removal of Juror Number 4 w i t h o u t an admonishment to the remaining jurors to not draw any inferences from t h e removal likely prejudiced the verdict against UPS. Plaintiff counters that UPS MEMORANDUM ORDER - 15 s t i p u l a t e d to the removal of Juror Number 4 and, therefore, waived any motion for a new trial and that there is no evidence that any extraneous information was p r o v i d e d or considered by the remaining jurors. T h e defense portrays Juror Number 4 as a cunning individual who covertly r e s e a r c h e d information prejudicial to UPS on the internet and then tainted the o t h e r members of the Jury and lied to the Court and counsel on the record. That, h o w e v e r , was simply not the case. Though not reflected in the bare-text of the t r a n s c r i p t , Juror Number 4 was overly apologetic and embarrassed by the blunder h e had unwittingly made. A fact that was obvious to all who were present during h i s questioning. Even though everyone agreed his conduct necessitated his d i s mi s s a l , his demeanor while being questioned left little doubt of his truthfulness r e g a r d i n g the events. To assume otherwise now requires an extremely large leap f r o m the reality of what transpired at the time of the events in question. The Court f i n d s Juror Number 4's statements about these events to be truthful. T h e Court further finds there is no indication that any extraneous material p r e j u d i c e d the remaining six jurors nor any reasonable possibility any such ma t e r i a l could have affected the verdict. Sea Hawk Seafoods, 206 F.3d at 905. The G o o g l e search conducted by Juror Number 4 appears to have been short-lived and o f limited value. Even if the computer expert for UPS is correct that Juror Number 4 's search was more involved to have yielded the results as he described in Court, t h e fact remains that the search was limited and the remaining jurors were not p r i v y to any information that Juror Number 4 may have learned from the search. MEMORANDUM ORDER - 16 T h e Court's immediate removal of Juror Number 4 from the jury room and u l t i ma t e l y his dismissal, as agreed to by counsel, thwarted any prejudice to the r e ma i n i n g members of the Jury. U P S ' s argument that the removal of Juror Number 4 "could have been c o n s t r u e d as a large corporation exercising its power all the way into the jury r o o m" is a misperception of the circumstances surrounding Juror Number 4's r e mo v a l . (Dkt. No. 158, p. 16.) There was no indication made to the remaining j u r o r s that it was anyone other than the Court who dismissed Juror Number 4 and t h a t the reason for his dismissal was the violation of the Court's instruction a g a i n s t conducting outside research. Moreover, the events as they transpired at the t i me indicate otherwise. When Juror Number 4 told the other jurors that he had d o n e an internet search, they immediately summoned the Bailiff knowing that J u r o r Number 4's actions were in violation of the Court's instructions. When the J u r y was told to begin their deliberations they were specifically referred to the C o u r t ' s instruction prohibiting outside research. (Dkt. No. 143, Jury Instr. 10.) To a s s u me , as UPS alleges, that the Jury held the dismissal of Juror Number 4 against U P S , is without any basis in fact. I n addition, Jury Instruction No. 21 states "[a]ll persons are equal before the l a w and a corporation is entitled to the same fair and conscientious consideration b y you as any other person." (Dkt. No. 143, Jury Instr. 21.) It is a fundamental n e c e s s i t y that in order for this system of justice to work, we must have faith in the j u r y and believe they will do as they are instructed. See Fields v. Brown, 503 F.3d MEMORANDUM ORDER - 17 7 5 5 , 787 (9th Cir. 2007) ("As a general rule, we presume that jurors follow the t r i a l court's instructions.") (citing Kansas v. Marsh, 548 U.S. 163 (2006)); see also M y e r s v. United States, 390 F.2d 793, 796 ("The jury system as we know it can not f u n c t i o n `unless we proceed on the basis that the jury will follow the court's i n s t r u c t i o n s where those instructions are clear and the circumstances are such that t h e jury can reasonably be expected to follow them.'") (citation omitted). In this c a s e , though Juror Number 4's actions were contrary to the Court's instructions, he c a me forward with his mistake and, in obvious embarrassment, came clean with t h e Court and counsel. The Court, having been present at the time, finds there is n o reason to assume or speculate that Juror Number 4 or any of the other jurors a c t e d contrary to the Court's instructions. A s to UPS's contention that the Court should have admonished the r e ma i n i n g jurors to not infer anything from Juror 4's removal, neither side r e q u e s t e d any such admonishment at the time. Nor did either side ask that the r e ma i n i n g six jurors be questioned regarding what Juror Number 4 had told them a t the time. Further, as the Court stated on the record, the remaining jurors were a d v i s e d to review Jury Instruction No. 10 and then continue their deliberations. ( D k t . No. 143, Jury Insr. No. 10.) 5 Other instructions also advise the Jury that they mu s t take nothing the Court has said or done as any indication of what their v e r d i c t should be. (Dkt. No. 143, Jury Insr. Nos. 13, 15.) The fact that the 5 Jury Instruction No. 10 states, in pertinent part, "do not do any research, such as c o n s u l t i n g dictionaries or other reference materials, and do not make any investigation a b o u t the case on your own." M E M O R A N D U M ORDER - 18 r e ma i n i n g six jurors were not given the admonishment suggested by UPS in its mo t i o n and the Jury ultimately returned a verdict against UPS, does not indicate t h e Jury was prejudice by Juror Number 4's conduct or removal. Just the opposite i s true here, as it was the other jurors who immediately stopped Juror Number 4 f r o m talking about his research and summoned the Bailiff. To have brought all of t h e remaining jurors back into the courtroom for questioning may have served only t o further highlight and raise the suspicions of the jurors. Instead the Court, with t h e consent of counsel, dismissed Juror Number 4 and directed the remaining j u r o r s to review Jury Instruction Number 10 and begin their deliberations. In doing s o , there was no additional emphasis made upon Juror Number 4's action. See U n i t e d States v. Mausali, 590 F.3d 1077, 1079-1081 (9th Cir. 2010) (district court d i d not error by failing to question each member of the jury for taint after d i s mi s s i n g a juror). In sum, because there is no indication that any prejudicial e x t r a n e o u s information was obtained by Juror Number 4 nor conveyed to the rest o f the jurors, let along any reasonable probability that any such material affected t h e verdict, the Court denies the Motion. ORDER N O W THEREFORE IT IS HEREBY ORDERED: 1) D e f e n d a n t ' s Motion for New Trial (Dkt. No. 158) is DENIED. MEMORANDUM ORDER - 19 2) 3) D e f e n d a n t ' s Motion to Strike (Dkt. No. 191) is GRANTED. P l a i n t i f f ' s Motion for Extension of Time (Dkt. No. 194) is DENIED. D A T E D : September 3, 2010 Honorable Edward J. Lodge U . S. District Judge MEMORANDUM ORDER - 20

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