Free Order on Motion for Reconsideration - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Conrad Luna, et al., 13 Defendants. 14 15 16 vs. Andre Dennison, Plaintiff,

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

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No. CV03-2373-PHX-SRB ORDER

Pending before the Court are two motions filed by Plaintiff after the jury entered its 17 verdict for Defendant James. The first motion, filed July 5, 2007, is entitled "Motion for 18 Reconsideration/Setting Aside of Jury Verdict, Motion to Reconvene Trial Jury for Futher 19 (sic) Deliberations, Motion to Instruct Trial Jury on the Rule of Law Regarding the Legal 20 Law Evidentiary Standard "Inference" and Motion for Mistrial." The second motion, filed 21 July 18, 2007, is entitled "Motion for New Trial Pursuant to Rule 59 of Fed.R.Civ.P." Both 22 motions make the same argument and request the same relief. It is Plaintiff's contention that 23 fundamental error occurred in instructions given by the Court to the jury after the jury began 24 its deliberations and after the jury advised the Court that it felt it was reaching an impasse. 25 Defendant James filed his response in opposition to Plaintiff's Motion for New Trial on 26 August 20, 2007 and Plaintiff filed his reply on September 6, 2007. 27 28
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The jury began its deliberation late in the afternoon of the third day of the trial on June 28, 2007. After an hour of deliberations the jury recessed for the day. The jury resumed its deliberations on June 29, 2007 at 8:30 a.m. After approximately three hours of deliberations the jury sent out a note advising that it thought it was reaching an impasse. The jury asked the Court for direction or some suggestion. The Court discussed the jury's note with the parties and the parties and the Court agreed to offer the jury some help with its deliberations. The jury was brought into the courtroom, further instructed in accordance with the agreement reached with the parties, and returned to the jury room to continue deliberations. Later, the jury submitted two questions. The Court provided the questions to Plaintiff and counsel for Defendant James, conferred with the parties, and reached an agreement on the written answers to the questions. The first question was, "Does Plaintiff have to prove that James had knowledge of the lawsuit against Thelan prior to 5/1/03." The agreed-upon answer provided to the jury was, "Yes. Plaintiff must prove that defendant James had knowledge of the lawsuit against Thelen on or before the events of 5/1/03." The second question was, " In order to prove retaliation does Plaintiff have to prove all three; false reports, malicious prosecution, and the assault? If we do not think all 3 were proven by evidence, does that indicate no retaliation was proven?" The agreed upon answer provided to the jury was, "No. In order to prove retaliation Plaintiff must prove that defendant James took some adverse action against him because Plaintiff filed a civil rights lawsuit Jennifer Thelen. It could be any or all of the above." Shortly after the questions were answered the jury returned its verdict in favor of Defendant James. Plaintiff argues in his motions that the answers to these two questions created fundamental error because the Court did not also include with the answers an additional instruction to the jury on "`Inference' or `Reasonable Inference Rule' when considering evidence." (Plaintiff's motions at page 3). It is apparently Plaintiff's belief that the answers provided to the jury caused the jury to believe that the jurors would have to see a document that showed or hear a witness that testified that Defendant James had prior knowledge of the -2Case 2:03-cv-02373-SRB Document 277 Filed 09/14/2007 Page 2 of 4

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existence of the lawsuit against Thelen. According to Plaintiff, had the Court further instructed the jury concerning inferences, the jury would have inferred Defendant James prior knowledge of the lawsuit against Thelen based on his actions. Plaintiff concludes that this failure to instruct on inference caused the jury to render a verdict adverse to him. In both preliminary and final instructions the jury was given the following instruction both orally and in writing. Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to direct and circumstantial evidence. It is for you to decide how much weight to give to any evidence. The Court believes that the instruction on direct and circumstantial evidence is an instruction

12 which tells the jury that they can infer facts from proof of one or more other facts. 13 As an example pertinent to the facts to this case, because Plaintiff's claim was that 14 Defendant James retaliated against him for filing a civil rights lawsuit against his friend 15 and/or colleague Jennifer Thelen, there had to be either direct or circumstantial evidence that 16 Defendant James had some knowledge of the existence of the lawsuit when he took adverse 17 action against Plaintiff allegedly in retaliation for filing the lawsuit. Without such prior 18 knowledge any adverse action taken on May 1, 2003 could not have been motivated by the 19 existence of a lawsuit against Jennifer Thelen. There was no direct evidence offered at trial 20 that Defendant James knew of the existence of the lawsuit against Thelen. Defendant James 21 denied knowledge of the lawsuit and Jennifer Thelen testified that she didn't know 22 Defendant James and never had any conversations with him about Plaintiff or about his 23 lawsuit against her. There was however circumstantial evidence which might have allowed 24 the jury to draw the inference that Defendant James knew about the lawsuit and acted in 25 retaliation for its filing. Plaintiff offered testimony concerning an alleged close relationship 26 between Defendant James and Thelen. He also testified about statements alleged to have 27 been made to him by Defendant James at the time of the incident on May 1, 2003. Plaintiff 28 -3Case 2:03-cv-02373-SRB Document 277 Filed 09/14/2007 Page 3 of 4

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testified that Defendant James called him a "lawyer boy" and said "Why don't you sue me like you sued Thelan." From this testimony the jury could have drawn the inference that Defendant James knew about and was motivated by the filing of a lawsuit by Plaintiff. The jury also was free to believe the evidence provided by Defendant James and Thelen to the contrary. Plaintiff never asked the Court for the instruction that he now claims should have been given to avoid fundamental error. He does not dispute that he agreed to the answers given. He argued that because he is a lay person in the law and this was the first time he conducted a civil trial acting as his own attorney that he could not have known about the inference instruction that should have been given. The Court finds no error. The jury was properly instructed concerning direct and circumstantial evidence. There is no special instruction or rule of law that required some more explicit instruction using the term "inference." The written answers to the jury's questions did not mislead the jury by suggesting that only direct evidence of a witness or a document was required to satisfy Plaintiff's burden of proof. IT IS ORDERED denying Plaintiff's Motion for New Trial and Plaintiff's Motion for Reconsideration/ Setting Aside of Jury Verdict, Motion to Reconvene Trial Jury for Further Deliberations, Motion to Instruct Trial Jury on the Rule of Law Regarding the Legal Law Evidentiary Standard "Inference", and Motion for Mistrial. (Docs. 255, 258)

DATED this 14th day of September, 2007.

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