Doe v. County of Milwaukee et al
Filing
319
ORDER signed by Judge J.P. Stadtmueller on 12/7/2017: DENYING 299 Defendant County of Milwaukee's Second Motion for a New Trial; DENYING without prejudice 305 Plaintiff's Motion for Attorney's Fees; DENYING without prejudice 318 Defendant County of Milwaukee's Motion to Supplement; and DENYING without prejudice 298 Movant Judge, Lang & Kater LLC's Motion to Intervene. (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHONDA MARTIN,
Plaintiff,
v.
COUNTY OF MILWAUKEE and
XAVIER D. THICKLEN,
Case No. 14-CV-200-JPS-JPS
ORDER
Defendants.
Defendant County of Milwaukee’s (the “County”) first motion for a
new trial was denied on September 28, 2017. (Docket #294). The Court
issued a judgment on the jury’s verdict that same day. (Docket #304). Two
weeks later, the County filed a second motion for a new trial. (Docket #299).
On October 25, 2017, the County filed a notice of appeal from the Court’s
September 28 judgment. (Docket #306). Generally, the filing of a notice of
appeal deprives a district court of jurisdiction to take further action in the
subject case. Henry v. Farmer City State Bank, 808 F.2d 1228, 1240 (7th Cir.
1986). However, when a timely motion for new trial is interposed prior to
filing a notice of appeal, the district court retains jurisdiction to decide the
motion. Brown v. Pierson, 12 F. App’x 398, 402 (7th Cir. 2001). In any event,
the Court of Appeals indicates that it is waiting for the instant order. Shonda
Martin v. Milwaukee County, No. 17-3216 (7th Cir.) (Docket #12). The Court
will address the second motion for new trial, as well as all other pending
post-trial motions.
The County claims that it has obtained new evidence warranting
relief from the Court’s judgment pursuant to Federal Rules of Civil
Procedure (“FRCP”) 59(a), 60(b)(2), and 60(b)(3). FRCP 59(a) provides,
rather unhelpfully, that a court may grant a new trial “for any reason for
which a new trial has heretofore been granted in an action at law in federal
court.” Fed. R. Civ. P. 59(a)(1)(A). The Seventh Circuit explains that a new
trial may be ordered pursuant to FRCP 59(a) only when “the jury’s verdict
is against the manifest weight of the evidence, . . . or if for other reasons the
trial was not fair to the moving party.” Willis v. Lepine, 687 F.3d 826, 836 (7th
Cir. 2012) (quotation omitted). FRCP 60(b) permits a party to seek relief
from a judgment on various grounds, including “newly discovered
evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b),” Id. 60(b)(2), and “fraud . . .,
misrepresentation, or misconduct by an opposing party,” Id. 60(b)(3). Relief
under FRCP 60(b) “is an extraordinary remedy and is granted only in
exceptional circumstances.” Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th
Cir. 2010) (quotation omitted).
The County’s motion is based on an affidavit provided by Ivan Boyd
(“Boyd”). (Docket #300). Boyd is the father of one of Plaintiff’s children—
the one born in October 2013 while she was in the County’s custody. See
(Docket #189 at 2). He was incarcerated with Plaintiff in the Milwaukee
County Jail (the “Jail”) during most of the events underlying this case. Boyd
says that he and Plaintiff conspired to frame Defendant Xavier Thicklen
(“Thicklen”) for sexually assaulting Plaintiff. The conspiracy was carried
out by speaking through air vents from adjacent cells, passing notes
through Jail guards, having Boyd subtly encourage private meetings
between Thicklen and Plaintiff, ostensibly to provide her food, and having
a third party pay Thicklen for his help. Boyd maintains that Thicklen never
Page 2 of 7
sexually assaulted Plaintiff, directly contradicting Plaintiff’s testimony at
trial.
Plaintiff points to several problems with Boyd’s account. The notes
have been lost, the guards allegedly never read the notes they passed (and
for some unexplained reason agreed to pass the notes in the first place), and
the person who allegedly provided payment to Thicklen is deceased. The
only support for Boyd’s story, other than his sworn word, is that he was
indeed housed in a cell next to Plaintiff at the Jail, and the date she reported
Thicklen’s sexual assaults matches the date Boyd claims to have told her to
do so.
Boyd’s testimony does not warrant a new trial or relief from the
judgment based on any of rules cited by the County. The Court will address
each in turn, but it must first make a preliminary observation. Boyd’s
testimony is utterly lacking in credibility. It has almost no corroboration
despite various potential avenues for support—the notes, testimony from
the guards, or the now-deceased payment courier. Boyd’s tale is also
contrary to what was uncovered in the criminal investigation into
Thicklen’s conduct. The County’s investigator knew that Boyd claimed to
have information which would exonerate Thicklen. (Docket #313-1).
However, upon reviewing letters exchanged between Boyd and Martin,
and various prison telephone call recordings, the investigator did not
waver in his belief that Plaintiff’s allegations were credible and that
Thicklen had raped her. (Docket #313-2). Further, Thicklen himself had
every incentive to investigate Boyd’s claims and expose Boyd’s “truth,” but
nothing of the sort was raised in his criminal prosecution or this civil action
against him.
Page 3 of 7
Most importantly, however, Boyd’s sudden reappearance in the
Thicklen saga carries with it every appearance of nothing short of a thinlyveiled extortion scheme. He demanded money from the County prior to
discussing his story, (Docket #301-6), and from Plaintiff prior to signing his
affidavit (prepared by the County’s counsel), (Docket #313-6). The fact that
Boyd ultimately provided his current testimony without payment does
little to rehabilitate him. In light of the gaping holes in Boyd’s tale and the
manner in which his testimony was obtained, no reasonable jury would
ever believe him. The probability that his testimony would lead to a
different outcome at a new trial is exceedingly low. Jones v. Lincoln Elec. Co.,
188 F.3d 709, 732 (7th Cir. 1999) (one consideration in addressing newly
discovered evidence is whether “a new trial would probably produce a new
result”). Boyd’s testimony does not lead the Court to believe that the trial
was unfair to the County or that the County is entitled to the extraordinary
relief afforded by FRCP 60(b).1
Beyond this overarching consideration, the County’s motion is not
viable under any of the cited rules. To obtain a new trial pursuant to FRCP
60(b)(2), the movant must prove five things:
1.
2.
3.
4.
The evidence was discovered following trial;
Due diligence on the part of the movant to discover the new
evidence is shown or may be inferred;
The evidence is not merely cumulative or impeaching;
The evidence is material; and
In her response to the County’s motion, Plaintiff asserts that the Court can
deny the motion based on the implausibility of Boyd’s testimony. (Docket #313 at
15-18). She does not explain how this fits into an evaluation of FRCP 59 or 60. Id.
The County’s reply addresses the argument but similarly fails to position it within
the rules cited. (Docket #316 at 10-11). Nevertheless, the Court believes that Boyd’s
credibility is properly considered as part of a general application of the FRCP 59(a)
and 60(b) standards.
1
Page 4 of 7
5.
The evidence is such that a new trial would probably produce
a new result.
Sarkes Tarzian, Inc. v. U.S. Trust Co. of Fla. Sav. Bank, 168 F. App’x 108, 111
(7th Cir. 2006). As noted above, the County cannot establish the fifth
element. Further, it failed to prove the second. The County admits that it
did not use the discovery process in this case to obtain either testimonial or
documentary evidence from Boyd.
The County nevertheless claims it exercised due diligence by relying
on the Thicklen criminal investigation, which did not reveal the precise
contours of Boyd’s testimony as clearly as his recent affidavit. The County’s
reliance is misplaced. It knew that Boyd might have information relevant
to this action (and in fact identified him as a potential witness), yet it chose
not to depose him. A deposition would either have disclosed Boyd’s current
testimony, assuming it is indeed truthful, or it would have confirmed that
he had nothing meaningful to say about Plaintiff’s allegations, thus
foreclosing the instant motion. Either way, the County cannot assert its
diligence when it left the matter of Boyd’s testimony unresolved.
To merit FRCP 60(b)(3) relief, a party must prove by clear and
convincing evidence that “(1) the party maintained a meritorious claim at
trial; and (2) because of the fraud, misrepresentation or misconduct of the
adverse party; (3) the party was prevented from fully and fairly presenting
its case at trial.” Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). The
parties hotly dispute whether Boyd’s testimony renders Plaintiff’s trial
testimony fraudulent. The Court need not wade into this fray because the
County fails to even suggest that the absence of Boyd’s testimony at trial
was “because of” Plaintiff’s allegedly false testimony. Id. This causation
requirement cannot be cast aside, despite the County’s attempt to do so.
Page 5 of 7
Venson v. Altamirano, 749 F.3d 641, 651 (7th Cir. 2014) (“The party seeking
relief pursuant to Rule 60(b)(3) must show that he had a meritorious claim
that he could not fully and fairly present at trial due to his opponent’s fraud,
misrepresentation, or misconduct.”) (emphasis added); Wickens, 620 F.3d at
758-59 (“To obtain relief under Rule 60(b)(3), a party must show that she
has a meritorious claim that she was prevented from fully and fairly
presenting at trial as a result of the adverse party’s fraud, misrepresentation,
or misconduct.”) (emphasis added) (quotation omitted). The County
admits that it was Boyd alone who decided to keep his story secret until
after the trial. (Docket #302 at 11-12). Boyd’s choice cannot be laid at
Plaintiff’s feet.
In sum, the County has not shown that it is entitled to the
extraordinary relief that is the granting of a new trial.2 The Court will,
therefore, deny the County’s second motion for a new trial. The Court turns
to the other pending post-trial motions. Plaintiff filed a motion for
attorney’s fees on October 12, 2017. (Docket #305). While the Court
appreciates the parties’ efforts in briefing that issue, it is premature.
Depending on the resolution of the pending appeal, Plaintiff may be
entitled to additional fees or no fees at all. The Court will deny her motion
without prejudice.3 On October 5, 2017, Movant Judge, Lang & Katers LLC
The Court has not separately discussed FRCP 59(a) because the County
chose not to. It combined its plea for FRCP 59(a) relief with its arguments relating
to FRCP 60(b)(2) and (3). (Docket #302 at 6-7, 12-13). The County did not make a
separate claim that Boyd’s testimony rendered the jury’s verdict against the
manifest weight of the evidence. The Court need not conduct such an analysis of
its own accord. Willis, 687 F.3d at 836.
2
The Court will further deny without prejudice a motion by the County to
supplement its submissions on the fee issue. (Docket #318).
3
Page 6 of 7
(“JLK”) filed a motion to intervene in this matter. (Docket #298). JLK seeks
to intervene pursuant to FRCP 24 to protect its right to a portion of any fee
award in Plaintiff’s favor. JLK’s motion is procedurally defective, in that it
does not attach a pleading setting forth its intervention claim. Fed. R. Civ.
P. 24(c); Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 594-96 (7th
Cir. 1993). Further, there is no reason to consider intervention unless and
until liability is finally resolved in Plaintiff’s favor. JLK’s motion will
likewise be denied without prejudice.
Accordingly,
IT IS ORDERED that Defendant County of Milwaukee’s second
motion for a new trial (Docket #299) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for attorney’s
fees (Docket #305) be and the same is hereby DENIED without prejudice;
IT IS FURTHER ORDERED that Defendant County of Milwaukee’s
motion to supplement the record (Docket #318) be and the same is hereby
DENIED without prejudice; and
IT IS FURTHER ORDERED that Movant Judge, Lang & Katers
LLC’s motion to intervene (Docket #298) be and the same is hereby
DENIED without prejudice.
Dated at Milwaukee, Wisconsin, this 7th day of December, 2017.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
Page 7 of 7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?