David Hill Development, LLC v. City of Forest Grove et al
Filing
267
OPINION and ORDER - Based upon the foregoing, Defendants' FRCP 59 and Alternative FRCP 60 Motion for New Trial Based on Evidence of Ex Parte Juror Contact 207 is DENIED. IT IS SO ORDERED. Dtaed this 29th day of February, 2012, by U.S. Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DAVID HILL DEVELOPMENT, LLC, an
Oregon limited liability company,
03 :08-cv-266-AC
OPINION AND ORDER
Plaintiff,
v.
CITY OF FOREST GROVE, an Oregon
municipal corporation, STEVE A. WOOD,
individually and in his capacity as Project
Engineer for the City of Forest Grove,
ROBERT A. FOSTER, individually and in
his official capacity as Engineering Director
and Public Works Director for the City of
Forest Grove,
Defendants.
ACOSTA, Magistrate Judge:
1 - OPINION AND ORDER
Pending iv/olion
Pending before the court in the above entitled matter is Defendants' FRCP 59 and Alternative
FRCP 60 Motion for New Trial Based on Evidence of Ex Parte Juror Contact. The City of Forest
Grove, Steve A. Wood and Robert A. Foster (collectively "City") moved, initially, for a hearing to
determine whether the outcome of the trial was prejudiced by improper juror contact based on
alleged ex parle contact by a representative of David Hill Development, LLC ("David Hill") with
a juror. (Defs.' FRCP 59 Mem. at 1-2.) Because there was a reasonable possibility of prejudice
based upon the City's allegations of ex parte contact, the court granted the City's request for an
evidentiary hearing to establish actual prejudice. See, e.g., United Stales v. Rosenthal, 454 F.3d 943,
949 (9th Cir. 2006) ("Where ex parte communication is involved, the district court, upon finding a
reasonable possibility of prejudice, must hold a fair hearing. . .. At the hearing, the defendant
generally must demonstrate' actual prejudice,' without which a new trial is not warranted." (citation
omittedĀ»; Dyer v. Calderon, 151 FJd 970, 974 (9th Cir. 1998) (en banc)("A court confronted with
a colorable claim of juror bias must undertake an investigation of the relevant facts and
circumstances.").
David Hill opposes the City's request for a new trial, arguing the City's motion is untimely
and, as such, the City waived its right to object to contact between a juror and McDonald.
Alternatively, David Hill insists there was no improper ex parte juror contact and, in any event, the
City is unable to show actual prejudice.
On February 23, 2011, the court held an evidentiary hearing to determine whether a new trial
was necessary because of ex parte jury conduct that prejudiced the jury's verdict. For the reasons
that follow, the court has determined there was no improper ex parte juror contact, and no prejudice
2 - OPINION AND ORDER
to the jury's deliberations or the decision in this case. Accordingly, Defendants' FRCP 59 and
Alte1'llative FRCP 60 Motion for New Trial Based on Evidence of Ex Pmie Juror Contact is denied. t
Statement ofFacts
On Thursday, September 29, 2011, the matter of David Hill Development, LLC v. City of
Forest Grove, et aI., No. 3:08-cv-00266-AC (D. Or.), was submitted to the jUly for deliberations.
Later that evening, Connie McKelvey, a law partner at the firm Hart Wagner LLP, went to celebrate
her son's birthday with her family at a local steakhouse. (Cormie McKelvey Dec!.
~
2, Nov. 15,
2011.) McKelvey testified in her declaration that she was seated at a table near the center of the
room while she waited for her family to arrive. (McKelvey Dec!. ~ 2.) While waiting for her family,
McKelvey witnessed a celebration by a large group at a table nearby. (McKelvey Dec!. ~ 2.) Several
members of the group spoke in voices that were clearly audible and, in fact, difficult for McKelvey
to ignore. (McKelvey Dec!.
~
2.)
Relevant here, McKelvey overheard a discussion regarding a cOUli case, and multiple
references to two of her colleagues, Richard Kuhn and Daniel Le1'ller. 2 (McKelvey Dec!. ~ 3.) She
was aware those colleagues were involved in a long trial, but had no specific knowledge of this case.
(McKelvey Dec!.
~
3.) Nevertheless, it became apparent to McKelvey that David Hill's counselor
tThe City also argues "[t]he court may also relieve a party from a final judgment based on
newly discovered evidence pursuant to FRCP 60(b)(2)." (Def.'s Mem. FRCP 59 and Alte1'llative
FRCP 60 Based on Ex Parte Juror Contact 3.) 'The City, however, provides no additional
argument in suppOli of this alte1'llative basis for granting a new tria!. Because the court has
considered the City's request for a new trial under Rule 59(a) and detemlined no new trial is
warranted, it need not consider whether to grant the City's request for relief from final judgment
in this case pursuant to Rule 60(b)(2). See FED. R. CIY. P. 60(b)(2).
2Richard Kuhn is a partner at Hart Wagner, LLP, and is counsel of record for all
defendants in this case. Daniel Lerner is an associate attorney at Hmi Wagner LLP, and has
appeared on behalf of defendants at different points during these proceedings.
3 - OPINION AND ORDER
staff from the trial in this matter were sitting at the table and discussing the proceedings. (McKelvey
Dec!. ~ 3.) Once McKelvey's family arrived, she tried to ignore the conversation at the nearby table,
but the group was still audible. (McKelvey Dec!.
~
4.)
McKelvey states in her declaration that she overheard "several statements that caused [her]
deep concern."
(McKelvey Dec!.
~
4.) In fact, McKelvey overheard discussions "related to
interactions that [David Hill's] counsel had with jurors." (McKelvey Dec!.
'1 4.)
Specifically,
McKelvey could hear people at the nearby table commenting on how pleased they were with the way
the case was going, in pati, because of the jurors "who talk to them." (McKelvey Dec!.
~
5.)
Someone even stated, "at least we have the Australian juror who talks to us." (McKelvey Dec!.
5.) Apparently, the Australian juror said, "It's almost done." (McKelvey Dec!.
~
~
5.) McKelvey
testified that someone from the group commented they knew they were winning the case, they just
did not know how much the verdict would be. (McKelvey Dec!.
~
5.)
After someone from the group made a comment about talking to a juror and then laughed,
McKelvey's son turned to her and asked, "Mom, can they do that?" McKelvey responded that
lawyers are not supposed to communicate with jurors during their tria!' (McKelvey Dec!.
~
6.) At
the time of these events, McKelvey was unaware the jury was deliberating. (McKelvey Dec!. ~ 7.)
She was also unaware of individual jurors, including whether there was an "Australian" member on
the pane!.
The following day, McKelvey sent an email to Kuhn about the conversation she overheard,
(McKelvey Dec!.
~
8.) She was not able, however, to discuss the matter with Kuhn until two days
later, after a unanimous verdict was rendered for David Hil!. (McKelvey Dec!.
4 - OPINION AND ORDER
~
8.) .
Tim McDonald, the managing member of David Hill, who was present through the entire
trial in this matter, filed an affidavit to explain the allegations set f01ih in the McKelvey declaration.
McDonald testified that about a week before the trial ended one of the jurors leaving the jury room
for the lunch break commented in McDonald's direction that the trial was almost over. McDonald
acknowledged the comment, and the juror continued toward the elevator with nothing more being
said. (Tim McDonald Aff. ~ 5, Dec. 20, 2011; Bradley Andersen Dec!. ~ 5, Dec. 20, 2011.) Thetrial
concluded the following week, with the parties giving their closing arguments on Thursday,
September 29,2011. The next moming, on September 30, 2011, the jUly began their deliberations
and a verdict was reached at around 5:00 p.m. that same day.
On the evening following closing arguments, McDonald and his trial team went to dinner at
a local restaurant. Unknown to McDonald or his lawyers McKelvey, was sitting nearby and
overheard McDonald and/or his legal team talk about how pleased they were with the way the trial
was going. As set forth above, the following moming, at 7:19 a.m., McKelvey wrote Kuhn an email
entitled "Your case" in which she described her concems about what she had overheard.
On that same moming, the jUly began to deliberate at 8:30 a.m. At around noon, the court
sent each of the attomeys an email indicating the jUly had a question, and requesting counsel appear
telephonically. (Andersen Dec!.
~
15, Ex. C.) Kuhn responded to the court's email and appeared
by telephone, but he did not raise any concems about juror misconduct. At around 4:30 p.m., the
cOUli announced the jury had reached a verdict. At approximately 5:00 p.m., the jUly announced its
verdict in favor of David Hall, and awarded $6,539,176 in damages. Upon a request by Kuhn, the
COUlt polled the jury, following which, the court asked Kuhn whether he had anything fhrther, to
which he replied "no." (Andersen Dec!.
5 - OPINION AND ORDER
~
20, Ex. C.) The verdict was then accepted by the cOUli.
A few days later, the City issued a press release in which it criticized the jury for "improperly
ignoring the court's instruction with its verdict" and indicated it was "shocked" by the result.
(Andersen Dec!.
~19,
Ex. A.)
Legal Standard
The motion is made pursuantto Rule 59(a)(1) ofthe Federal Rules of Civil Procedure, which
states, in relevant part, "[t]he COllli may, on motion, grant a new trial on all or some ofthe issues -and to any patiy -- as follows: (A) after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court." FED.R.ClY.P. 59(a)(I). Even if the
verdict is suppOlied by substantial evidence, the comi may grant a motion for a new trial under Rule
59 "if the verdict is contraty to the clear weight of the evidence, is based on evidence which is false,
or to prevent a miscaniage ofjustice." Silver Sage Partners v. City a/Desert Hot Springs, 251 F.3d
814,819 (9th Cir. 2001); see also lv/olski v. }vfJ. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (
"Historically recognized grounds [for a new trial under Rule 59] include, but are not limited to,
claims that the verdict is against the weight of the evidence, that the damages are excessive, or that,
for other reasons, the trial was not fair to the moving patty.") (internal quotations and citation
omitted).
Discussion
David Hill opposes the request for a new trial, arguing the City's motion is untimely and, as
such, it waived its right to object to contact between a juror and McDonald. Alternatively, David
Hill contends there was no improper ex parte juror contact and, in any event, the City is unable to
establish actual prejudice. Before addressing the merits of the allegations of improper ex parte
6 - OPINION AND ORDER
contact, the court must resolve the threshold question of whether the City's Rule 59(a) motion is
timely.
1.
Timeliness of Rule 59(a) Motion
David Hill points out that despite receiving McKelvey's email on the morning the jury was
deliberating, neither Kuhn nor any member of his firm chose to bring the alleged misconduct to the
court's attention until 45 days after the verdict had been received and the jury was released. David
Hill contends the City waived its right to impeach the verdict because the City is not permitted to
"await favorable outcome and then, after a verdict has been returned, raise an issue that they could
have raised earlier." (Pi. 's Resp. 5-6 (citing Woodsv. Burlington N. R.R., 768 F.2d 1287, 1292 (11th
Cir. 1985), and Moore's Federal Practice, Section 59.13[2][ e] [iii] [B] (2011) (the "failure to make
a timely objection to contact between a juror and an outside pmty may constitute a waiver of the
objection").)
The City responds that McKelvey emailed Kuhn early in the morning on September 30, 2011,
and she was out of the office the rest of the day. (McKelvey ~ 8.) As such, Kuhn did not have an
opportunity to consult McKelvey or discuss the substance of what she overheard. To preserve her
recollection, Kuhn a11'anged for independent counsel to interview McKelvey prior to consulting her.
(Defs.' Reply 3.)
After McKelvey had an opPOltunity to explain what transpired, the City
determined the public comments by David Hill's representatives were sufficient to SUppOlt the filing
ofthe present motion.
Rule 59(b) of the Federai Rules of Civil Procedure states: "A motion for a new trial must be
filed no later than 28 days after the entry of judgment." Judgment was entered for David Hill on
7 - OPINION AND ORDER
October 17, 2011 (doc. #190).3 The City filed its motion for a new trial based upon ex parte juror
contact on November 15,2011. There is no dispute the City filed its motion within the time period
provided by the Federal Rules of Civil Procedure. Additionally, due process may require this court
to conduct an inquhy into potential bias or prejudice of a juror, regardless of when a motion is filed.
See, e.g., US. v. Brande, 329 F.3d 1173, 1177-1178 (9th Cir. 2003) (defendants were entitled to
evidentiary hearing despite not raising the issue until five months after learning of the contact and
not filing a proper motion). The City filed its motion within the time mandated by Rule 59(b) and,
thus, it has not waived its rightto challenge any potential bias or prejudice of a juror based upon the
alleged ex parte contacts.
II.
Improper Ex Parte Contact with a Juror
The Ninth Circuit's 'juror-misconduct precedents distinguish between introduction of
extraneous evidence to the jury, and ex parte contacts with a juror that do not include the imparting
of any infoimation that might bear on the case." Rosenthal, 454 F.3d at 949 (citation and quotations
omitted); see also Sea Hawk Seafoods, Inc. v. Alyeska Pipeline, 206 F.3d 900, 906 (9th Cir. 2000)
("Our precedents are mostly in criminal cases, but we have applied the same rules in civil cases.").
"Extraneous-evidence cases involve not only the introduction of evidence per se but the submission
of extraneous information (e.g., a file or dictionary) to the jUlY. Ex parte contacts, by contrast,
. generally do not pertain to any fact in controversy or any law applicable to the case." ld. (citations
omitted). In an ex parte contact case, the court must hold a fair hearing if it finds a reasonable
3The Judgment was signed on October 17,2011, but was not entered on the civil docket
until October 18, 20 II.
8 - OPINION AND ORDER
possibility of prejudice. Unless the ex parte contact is inherently coercive, the movant is not entitled
to a new trial without demonstrating actual prejudice. ld.
There are no allegations here that information bearing on the case was impmied to the jurors
by David Hill. Rather, the issue raised is one of ex parte contact, as all of the City's allegations
focus on whether a representative from David Hill had contact with a juror(s) outside of the
courtroom proceedings. The City's description of that contact reveals nothing inherently coercive
about its content. Accordingly, it is the City's burden to establish there was improper contact
between David Hill's representative and a juror(s), and that the City was actually prejudiced by these
interactions.
On February 23, 2012, the court held an evidentiary hearing to determine whether improper
ex parte juror contact had occurred and whether there was actual prejudice to the City such that a
new trial is wan-anted. The cOUli began the day by interviewing Nancy Simon, the "Australian
juror," in camera, in the presence of a court repOlier. The in camera interview revealed little basis
for a reasonable possibility of prejudice but, in an abundance of caution, the couti held the scheduled
evidentiary hearing. Thus, the COlui determined it was appropriate for Simon to be swom in as a
witness and testifY in cOUli, first by answering questions posed by the couti, with follow-up
conducted by the attomeys.
In court, Simon testified consistent with her in camera interview. Specifically, she provided,
in relevant part:
BY THE COURT:
Q. All right. So I'm going to ask you some questions, and please answer them fully
to the best of your recollection. We're here today for a motion, the basis of which
is the possible or alleged contact between you and Mr. McDonald, who is the
9 - OPINION AND ORDER
representative of plaintiff in this case. And the first thing I will ask you is do you
remember at any time during the trial having any discussions with Mr. McDonald
about anything at all?
A. I don't remember specifically him. I just said good morning, exchanged just real
basic with anyboay I came in contact with.
Q. Do you have a recollection of at any time during the trial when you saw Mr.
McDonald you may have made a cOl1ll1lent to him that the trial or the case was almost
over is this?
A. I don't recall that.
Q. Do you recall at any time that you might have encountered Mr. McDonald during
the trial that he initiated any conversation with you?
A. No, I don't recall that.
Q. Do you recall that Mr. Andersen, one of the lawyers for the plaintiff, might have
initiated any conversation with you?
A. No, I don't recall anything like that.
Q. Do you remember Mr. Andersen?
A. Of course.
Q. You know he's here today in court?
A. Yes.
Q. Or Mr. Morasch, having initiated any contact with you, did anything like that ever
occur?
A. No.
Q. And just to be clear for the record, the contact, whether in the courthouse or op
the street or at any time, in any way during the pendency of the trial in this case?
A. I don't remember. I don't recall anything that would be remarkable or outside of
the realm of good morning, hello.
10- OPINION AND ORDER
Q. All right. To the extent you might have exchanged greetings or pleasantries
during the course oftrial when encountering Mr. McDonald or Mr. Andersen or Mr.
Morasch in the hallways or in the cOUlihouse, did any of those contacts have any
influence on your decision in this case?
A. No.
Q. One way or the other?
A. No.
Q. Did you have any contact of any kind, other than the greetings or pleasantries
you've already described, with any of the lawyers for the defendants?
A. No.
Q. Did they attempted to initiate contact with you in any way, other than a greeting
or a pleasantlY, during the entirety of the trial?
A. No.
Q. Or any of the representatives of the defendant attempt to contact you in any way?
A. No.
(Draft Tr. Second Excerpt Mot. Rrg. 3:12-5:16, Feb. 23,2012.)
BY MR. KUHN:
Q. Ms. Simon, did any of the parties or witnesses or any of the other people who
were gathered out here in the hallway during the pendency of the trial ever approach
you at any time?
A. No. I don't recall anything like that.
Q. And you never saw any other jurors approached or contacted by any of the
parties, witnesses, consultants, anyone like that while you were present?
A. Nothing that stands out to me that I overheard or --
11 - OPINION AND ORDER
Q. Did you ride on the elevators with any of the pat1ies or witnesses or anything like
that in connection with the trial?
A. Sure. I think I was in the elevator with you one time, yes .
. Q. Did we ever discuss anything about the case?
A. No.
Q. Did you ever discuss anythiug about the case with anyone else?
A. No.
(Draft Tr. Second Excerpt Mot. Hrg. 7:7-12, 8:8-21.)
Following Simon's testimony the court permitted Kuhn, on behalf of the City, to call additional
witnesses to elicit testimony in support of his request for a new trial based upon ex parte juror
contact. Kuhn called McKelvey, who testified in accordance with her declaration filed in this matter,
as detailed above.
Kuhn then questioned Randi Higbie, a paralegal for Schwabe Williamson & Wyatt, PC
("Schwabe"), the law firm representing David Hill. Higbie explained she was part of the David Hill
trial team; she attended opening and closing arguments; and she was present at the September 29th
dinner that is the genesis for this controversy. With respect to her attendance at trial, Higbie was
assigned the task of observing the jurors during opening statements and closing arguments t6 offer
her insights on the jurors' reactions during counsels' presentations. With respect to the dinner at
issue, Higbie testified that any discussions about jurors at the September 29th dinner was in the
context of what individual trial team members thought about what the jurors were thinking. Higbie
was aware of Simon's comment along the lines of "it is almost over" and one other comment made
by a juror to Laurie Kotasek, a paralegal employed by Schwabe and assigned to the trial team.
12 - OPINION AND ORDER
Higbie explained that another female juror remarked to Kotasek during an elevator ride that
Andersen was going to owe Kotasek several lunches for mistakenly refening to her by a name other
than Laurie. This comment by the female juror was in reference to remarks made by Andersen
during his opening statement that he was likely to call Laurie the wrong name throughout the trial
and he would need to buy Kotasek lunch each time he made such a mistake. Higbie testified she
knew of no other contact betweenjurors and any representative from David Hill or David Hill's trial
team.
Kotasek was the next witness to testifY; she attended evelY day of the trial and the September
29th dinner. One of her assignments was to observe juror responses to the evidence presented
throughout the trial. Kotasek testified the juror discussion at the September 29th dinner was
premised on Kotasek's impressions of the jurors during trial. In addition, Kotasek explained the
circumstances of the comment made to her by the second female juror; namely, the juror referenced
the number oflunches Andersen must owe Kotasek by that point in time. Kotasek testified her only
reply was simply along the lines of "yeah" or "he sure does." Kotasek was also aware of the "it is
almost over" comment by Simon. Kotasek testified she knew of no other contact between jurors
and any representative from David Hill or David Hill's trial team.
Kuhn next called McDonald to testifY directly about his contact with Simon. McDonald
explained the contact occUlTed approximately one week before the trial ended. While McDonald
could not recall the exact words of the exchange, he testified Simon remarked that McDonald
"looked tired" to which he responded "yeah" or "we are all tired." Simon then followed with "it is
almost over" and McDonald replied simply "yeah." McDonald testified Simon initiated the
conversation and Andersen overheard the exchange. McDonald offered that he tried to avoid the
13 - OPINION AND ORDER
jurors and he did not recall any other contact with jurors beyond a salutation in the morning during
which no other information was exchanged. McDonald was present at the September 29th dinner
at which the jurors were discussed. According to McDonald, the dinner conversation was focused
on the trial team's insights regarding what the jurors thought andlor how the jurors perceived the
case. McDonald testified the dinner participants relied upon their own observations of juror body
language, not direct communications, to opine about what the jurors thought.
Kelly Walsh, an attorney for Schwabe assigned to the trial team, testified next. Walsh was
present during the trial on some days and attended the September 29th dinner. Walsh echoed the
remarks of the other testifYing members of the trial team who attended the dinner. Specifically, she
offered that everyone was trying to "read the tea leaves" regarding what the jurors were thinking.
Walsh testified she was aware of Simon's comments to McDonald, but she did not believe the
remarks reached a level such that a report to the court was necessmy.
Following Walsh's testimony, the cOUli took a short recess. Immediately upon resuming the
evidentimy hearing, Kuhn stated:
THE COURT: Mr. Kuhn.
MR. KUHN: Thank you, Your Honor .. Your Honor, I'm not going to call any other
witnesses. I think from the defense point of view, we've had an opportunity to
inquire of Nancy Simon and these other witnesses both that were here during trial
and at the dinner. We've put on Ms. McKelvey. So I think we've done whatever we
can do. I think the Court has given us the 0ppOliunity to explore these issues, and I
don't have any other evidence to present.
(Draft Tr. Third Excerpt Mot. Hrg. 1 :3-12.)
At that point, the court indicated there was nothing in the testimony, or any other evidence
received thus far, that gave rise to concerns of inherently coercive contacts between David Hill and
14 - OPINION AND ORDER
the jurors or any actual prejudice to the City. Nevertheless, the court allowed William Crow, making
an initial appearance on behalf of David Hill, to call Bradley Andersen to testify. Andersen was trial
co-counsel and attended the September 29th dinner. Andersen informed the court of one additional
contact between ajuror and McDonald and Andersen. Specifically, during a lunch break, Andersen
and McDonald decided to step out to the mezzanine a few floors below the courtroom. While
looking for the door that led to the outside, a juror said "it's locked." Andersen testified that neither
he nor McDonald responded. At the September 29th dinner, the participants discussed the jurors,
offering opinions about what individual jurors, referred to by nicknames, may be thinking and their
attitudes. Other than the matters testified to at the evidentiary hearing, Andersen had no knowledge
of any other contacts between a David Hill representative or a trial team member with any of the
jurors. Andersen's testimony concluded the evidentiaty hearing.
The comi finds that none of the contacts set f011h in the McKelvey declaration or testified
to during the evidentiaty hearing by any of the witnesses were of a coercive nature. Indeed, Simon's
only "contacts" with any of the parties (including party representatives and counsel) were brief and
limited to an exchange ofpleasantries. 4 Simon's sworn testimony on this matter was unequivocal
and nothing in the record gives the comi reason to doubt her credibility. In addition, the testimony
of all the other witnesses called during the evidentiary hearing supp011 the same conclusion of no
inherently coercive contacts. There is no basis to allow the City to inquire of any other juror, nor has
the City made such a request.
4The fact Simon was aware the trial may be drawing to a close is easily explained by this
cOUli's practice of regularly informing the jUly of the anticipated time line for when the case
would be ready for deliberations.
15 - OPINION AND ORDER
Based upon the evidence received during the evidentiary hearing, and all other evidence
presented in this matter, the court finds there was no inherently coercive contact between any of
David Hill's representatives or counsel and any juror. As such, the City must show actual prejudice
to defendant. See Rosenthal, 454 F.3d at 949. There was nothing in Simon's testimony, either in
camera or in COUti, to indicate she had reached a determination of her verdict prior the case being
submitted to the jUly. Indeed, the alleged comments to McDonald were so fleeting and of such and
inconsequential nature that barely four months later Simon could not even recall the exchange.
There can be no doubt that if Simon engaged in ex parte contact with the parties such that it
prejudiced her decision in this case, she would recall the circumstances of those events. The City
has presented no evidence of actual prejudice in this case, either in their written submissions to the
court or during the evidentimy hearing. Accordingly, the City's request for a new trial based upon
ex parte juror contacts must be denied.
Conclusion
Based upon the foregoing, Defendants' FRCP 59 and Altemative FRCP 60 Motion for New
Trial Based on Evidence of Ex Parte Juror Contact (doc. #207) is DENIED.
IT IS SO ORDERED
DATED
thi~ of February 2012
/( (//j
C.\.\ J~/J
\JoHn V. Acosta
United l(t,tes Magistrate Judge
16 - OPINION AND ORDER
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