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)
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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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( 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,
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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.
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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
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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
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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
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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:
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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
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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.
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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
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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.
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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
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