United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S
MOTION FOR NEW TRIAL (ECF NO. 169)
J. FURSE, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Karen Bird's Motion for
New Trial (ECF No. 169) brought pursuant to Federal Rule of
Civil Procedure 59. Ms. Bird seeks a new trial “due to
the misconduct” of counsel for Defendants West Valley
City and Kelly Davis (collectively, “West Valley
Defendants”) that she claims “unfairly prejudiced
[Ms.] Bird's presentation of her case.” (Pl.'s
Mot. for New Trial (“Mot.”) 1, ECF No. 169.)
Specifically, Ms. Bird claims that West Valley's counsel
improperly (1) questioned Layne Morris, Director of West
Valley City's Community Preservation Department,
regarding his military experience in an effort to
“arouse sympathy” for Mr. Morris, (2) stopped the
redirect/cross-examination of Mr. Morris “by falsely
claiming he would otherwise not have time to put on
Defendants' case, ” (3) relied on Mr. Morris's
military experience during his closing argument to suggest
that Mr. Morris would not lie, and in so doing, vouched for
his credibility, and (4) suggested during his closing
argument that Mr. Morris was the subject of a new movie and
portrayed by a famous actor. (Id. at 2-3.) Ms. Bird
asserts that “[t]his conduct as a whole was
sufficiently egregious that it had the ability to influence
the outcome of the case, and likely did, as the jury finding
of no liability was against the weight of the
evidence.” (Id. at 1-2.)
West Valley Defendants counter that courts highly disfavor
motions for a new trial and only grant them “in the
face of very serious and prejudicial misconduct.”
(Opp'n to Pl.'s Mot. for a New Trial
(“Opp'n”) i-ii, ECF No. 172.) As to the
specific instances of alleged misconduct, the West Valley
Defendants assert (1) that Mr. Morris's military
experience “was admissible background information that
bears on his reliability and credibility, ” and in any
event, “provided only a small part of his trial
testimony, ” (2) that counsel did not mislead the Court
in arguing that the West Valley Defendants may not have time
to put on their case because they only made the strategic
decision not to call additional witnesses after Mr. Morris
concluded his testimony, (3) that during closing argument,
counsel confined his argument to the record and did not vouch
for Mr. Morris's credibility, and (4) that counsel did
not say during closing argument that Mr. Morris was the
subject of a movie or portrayed by a famous actor but instead
referred to the movie to make an analogy. (Id. at
ii-iii.) The West Valley Defendants also claim that the
alleged misconduct reflects “a minor part of the
case” in any event and does warrant a new trial.
(Id. at iii.)
Court finds the alleged conduct does not warrant a new trial.
Ms. Bird's complaints relating to the
redirect/cross-examination of Mr. Morris and the introduction
of testimony concerning his military service lack any basis
and do not amount to misconduct by West Valley
Defendants' counsel. However, some of the remarks of West
Valley Defendants' counsel during closing argument
qualify as improper. Nonetheless, that conduct does not
support the extreme remedy of a new trial. The remarks lasted
only a few minutes, the Court instructed the jury on multiple
occasions that attorney arguments are not evidence, and
nothing indicates that these arguments clearly influenced the
verdict or obviously prejudiced Ms. Bird. Accordingly, as
addressed in detail below, the Court DENIES Plaintiff's
Motion for New Trial.
September 2012, Ms. Bird filed this employment discrimination
case against her former employer, West Valley City, and Kelly
Davis, her former supervisor. (Compl., ECF No. 2.) Ms. Bird
alleges that on November 29, 2011, West Valley City
unlawfully terminated her from her position as the manager of
the West Valley City Animal Shelter (“Animal
Shelter”). (See id.) In February 2015, the
Court granted the West Valley Defendants summary judgment on
Ms. Bird's Title VII claims, § 1983 equal protection
claim, contract claims, and § 1983 First Amendment
retaliation claim. (Mem. Dec. & Order, ECF No. 44.) Ms.
Bird appealed that decision, and the Tenth Circuit affirmed
as to all the claims except her § 1983 First Amendment
retaliation claim. Bird v. West Valley
City, 832 F.3d 1188, 1213 (10th Cir. 2016). As to that
claim, the Tenth Circuit reversed the grant of summary
judgment based on an intervening Supreme Court case and
remanded for further proceedings consistent with its opinion.
Id. at 1211-13.
September 2017, the Court denied West Valley Defendants'
motion for summary judgment on Ms. Bird's § 1983
First Amendment retaliation claim. (Mem. Decision & Order
Denying Defs.' Mot. for Summ. J., ECF No. 76.) The case
then proceeded to trial from March 12 to March 16, 2018. (ECF
Nos. 150, 151, 152, 154, & 161.) The preliminary
instructions given to the jury described the case as follows:
To help you understand what you will see and hear, I will now
explain the background of the case. Karen Bird worked as
manager of the West Valley City Animal Shelter until her
termination in November 2011. She worked directly for
Defendant Kelly Davis, the shelter's Director of
Operations, who worked for Layne Morris, the Director of West
Valley City's Community Preservation Department. On
November 29, 2011, Mr. Morris terminated Ms. Bird. Ms. Bird
brought this lawsuit against West Valley City and Mr. Davis,
alleging that her termination was motivated by their belief
that she was the source of leaks to the media about the
animal shelter, in violation of her First Amendment right to
free speech. West Valley City and Mr. Davis claim that Ms.
Bird was terminated for legitimate reasons, specifically, for
being insubordinate, discourteous, and uncooperative.
(Preliminary Instructions, Instruction No. 1, ECF No. 143.)
On October 17, 2011, several news outlets published articles
about a cat named Andrea who twice survived West Valley
City's attempts to euthanize her in the Animal
Shelter's carbon monoxide chamber. (Mem. Decision &
Order Denying Defs.' Mot. for Summ. J. 4, ECF No. 76.)
Later that month, on October 26, 2011, a reporter contacted
West Valley City about an anonymous tip he received that Mr.
Davis was ordering a mass execution at the Animal Shelter.
(Id.) The final instructions to the jury provided:
Ms. Bird claims the City and Mr. Davis deprived Ms. Bird of
her rights under the First Amendment of the U.S. Constitution
by terminating her because they believed she leaked
information to the press regarding: (1) Andrea the cat,
and/or (2) a mass execution at the animal shelter allegedly
ordered by Mr. Davis, collectively referred to in these
instructions as “the speech at issue.” Section
1983 provides that Ms. Bird may recover an award of money
damages against the City or Mr. Davis if either violated her
First Amendment rights under the U.S. Constitution.
The City and Mr. Davis deny violating Ms. Bird's First
Amendment rights in any way, and allege that they terminated
Ms. Bird for legitimate reasons, specifically, for being
insubordinate, discourteous, and uncooperative.
You will be asked to return a verdict on Ms. Bird's First
Amendment claim with respect to both the City and Mr. Davis.
(Jury Instructions, Instruction No. 10, ECF No. 160.)
jury returned a verdict in favor of the West Valley
Defendants. (Special Verdict Form, ECF No. 166.) The jury
found that Ms. Bird proved by a preponderance of the evidence
that West Valley City's belief that she leaked
information to the press regarding Andrea the cat was a
substantial or motivating factor in the decision to terminate
her employment. (Id., ¶¶ 2, 3.) However,
the jury also found that West Valley City proved by a
preponderance of the evidence that it would have terminated
Ms. Bird's employment in the absence of any belief that
she leaked information to the press regarding Andrea the cat,
(id., ¶ 4), resulting in a verdict in the West
Valley Defendants' favor.
to Federal Rule of Civil Procedure 59, a district court may,
on the motion of a party, grant a new trial on all or some of
the issues “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. Civ. P. 59(a)(1)(A).
District courts have “broad discretion” in ruling
on motions for a new trial. McHargue v. Stokes Div. of
Pennwalt Corp., 912 F.2d 394, 396 (10th Cir. 1990);
Shugart v. Cent. Rural Elec. Co-op., 110 F.3d 1501,
1506 (10th Cir. 1997) (“A motion for new trial is
addressed to the sound discretion of the trial court . .
.” (quoting Canady v. J.B. Hunt Transp., Inc.,
970 F.2d 710, 716 (10th Cir.1992))).
district court is given “‘wide latitude with
respect to [a] motion for a new trial because [the trial
judge] [is] uniquely able to assess the likelihood that the
[evidence] was prejudicial.'” Henning v. Union
Pac. R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008) (1st,
3d, & 4th alterations in original) (quoting Mayhue v.
St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 922
(10th Cir. 1992). Likewise, with respect to alleged improper
conduct or argument by an attorney, “[t]he decision on
whether counsel's misconduct at trial was so egregious as
to require retrial is left largely to the discretion of the
district court.” Abuan v. Level 3 Commc'ns,
Inc., 353 F.3d 1158, 1175 (10th Cir. 2003); see also
Whittenburg v. Werner Enterprises Inc., 561 F.3d 1122,
1127 (10th Cir. 2009) (stating that “‘[t]he trial
judge is in the best position to determine' the
prejudicial effect of improper arguments, and thus whether a
new trial is warranted” (quoting Ketchum v.
Nall, 425 F.2d 242, 244 (10th Cir. 1970))).
‘A motion for a new trial is not regarded with favor
and should only be granted with great caution.' ”
Franklin v. Thompson, 981 F.2d 1168, 1171 (10th Cir.
1992) (quoting United States v. Thornbrugh, 962 F.2d
1438, 1443 (10th Cir. 1992)); see also Moody v. Ford
Motor Co., 506 F.Supp.2d 823, 847 (N.D. Okla. 2007)
(stating that granting a new trial and setting aside a
jury's verdict “is rarely appropriate”).
“Requiring a new trial is . . . a serious and costly
remedy for all involved.” Whittenburg, 561
F.3d at 1128.
Bird asserts that West Valley Defendants' counsel engaged
in various instances of misconduct. The Court addresses each
of her arguments below.
Ms. Bird's Argument that the West Valley Defendants'
Counsel Cut Off the Redirect/Cross-Examination of Mr. Morris
Without Legitimate Basis and for an Improper Purpose Lacks
Bird argues that the West Valley Defendants' counsel
improperly cut off her counsel's redirect examination of
Mr. Morris “without legitimate basis.” (Mot. 5,
ECF No. 169.) She argues that “from early on in the
trial” the West Valley Defendants' counsel
“complained about how long [Ms.] Bird was taking to
present her case, ” “demanded that the court put
[Ms. Bird's] case on a timer, which ran out during [the]
redirect of [Mr.] Morris, ” and “insisted that
the court stop . . . further questioning of [Mr.] Morris,
claiming [the West Valley] Defendants needed time to put on
their case.” (Id.) She claims that the West
Valley Defendants' counsel improperly stopped further
questioning of Mr. Morris because they “had no more
case to put on” and rested after Mr. Morris's
redirect. (Id.) Ms. Bird complains that this conduct
violated the Utah and Model Rules of Professional Conduct
requiring candor toward the tribunal and fairness to the
opposing party and counsel and that “[t]his tactic was
prejudicial” because it stopped counsel from impeaching
Mr. Morris. (Id. at 5-6.) Ms. Bird claims
“[t]his was undoubtedly [West Valley] Defendants'
intention, as [they] would certainly have known at that point
that they did not intend to put on any more witnesses.”
(Id. at 6.) Ms. Bird cites no case law in either her
opening or her reply brief to support this claim of error.
(Mot. 5-6, ECF No. 169; Reply 5-6, ECF No. 173.)
West Valley Defendants respond that Ms. Bird's
“telling of the subject events is misleading.”
(Opp'n 5, ECF No. 172.) They argue that Ms. Bird had
ample time to put on her case and that by its calculations,
Ms. Bird's counsel had over eleven hours with witnesses
compared to under seven hours for the West Valley Defendants.
(Id.) They further point out that the Court
repeatedly addressed with the parties the amount of time Ms.
Bird was taking to put on her case and that Ms. Bird's
counsel went over the additional time the Court allowed for
her redirect/cross-examination of Mr. Morris. (Id.)
The West Valley Defendants further argue that Ms. Bird's
assertions that they “misled the Court about the time
that they needed to put on their case are unwarranted and
without merit.” (Id. at 6.) The West Valley
Defendants point out that they intended to call additional
witnesses after Mr. Morris but that after Ms. Bird rested
they “evaluated where things stood” and made a
“strategic decision” not to call any additional
witnesses. (Id.) As addressed below, the Court finds
the West Valley Defendants' counsel's conduct with
respect to Mr. Morris's redirect/cross-examination and
timing issues generally during trial do not provide a basis
for a new trial.
the Court finds Ms. Bird's argument, made through her
counsel, improper. The Utah Standards of Professionalism and
Civility state that “[l]awyers shall not, without an
adequate factual basis, attribute to other counsel . . .
improper motives, purpose, or conduct.” Utah R. Jud.
Admin. 14-301(3). Ms. Bird and her counsel do not provide any
factual basis for the assertions that West Valley
Defendants' counsel knew they did not intend to call any
additional witness after Mr. Morris's
redirect/cross-examination and cut off Mr. Morris's
redirect/cross-examination to prevent Ms. Bird's counsel
from impeaching Mr. Morris. Ms. Bird's counsel's
arguments make objective statements of fact without factual
basis and are thus improper since they attribute improper
motivations and conduct to West Valley Defendants'
counsel without any factual support.
Ms. Bird distorts the events that occurred with respect to
time limits imposed in this case. From the outset of this
case, both sides maintained that they needed four days for
trial. (Stip. Attorneys' Planning Meeting Report 5, ECF
No. 15.) The Court relied on these representations in
scheduling the trial. (Scheduling Order 4, ECF No. 18
(setting four-day trial); Scheduling Order from Hr'g 2,
ECF No. 58(setting four-day trial); Scheduling Order, ECF No.
72 (setting four-day trial); Am. Scheduling Order, ECF No. 77
(setting four-day trial).) The Court's Trial Order
indicated that trial would run from 8:30 a.m. to 2:30 p.m.
each day, from March 12 to March 15, 2018. (Am. Trial Order
1, 5, ECF No. 82.) At the final pretrial conference, Ms.
Bird's counsel raised for the first time extending either
the length of each trial day beyond 2:30 p.m. or extending
trial into Friday, March 16. At that time, the Court kept the
trial set at four days but left open the possibility to
extend the trial days past 2:30 p.m. The Court indicated that
it would later assess the need to extend the hours for trial
but instructed the parties to make every effort narrow their
cases, to exchange realistic estimates of time for each
witness, and to contact the Court if they needed additional
to trial commencing, the parties contacted the Court via
e-mail and indicated that after conferring, they agreed to
extend trial days to 4:00 p.m. (3/6/18 Preston E-mail,
attached as Appendix (“App.”) 1.) Despite this
extension of trial days, on the second day of trial, West
Valley Defendants' counsel expressed concerns about the
amount of time Ms. Bird's counsel was taking and the time
that would remain to present their case. (3/13/18 Trial Tr.
22:5-22:15, attached as App. 3.) The Court instructed the parties
to make every effort to tighten up their examinations so that
they could complete as much of the trial as possible the next
day. (Id. at 21:12-25:15.)
through the third day of trial, the Court indicated its
concern with timing and West Valley Defendants' ability
to present their case. Ultimately, the Court divided the
remaining eight hours of trial time between the parties,
allocating three of the remaining hours to Ms. Bird's
counsel and the other five to the West Valley Defendants.
(3/14/18 Trial Tr. 3:8-6:22, attached as App. 4). By the end
of the third day of trial, Ms. Bird's counsel had only
thirty-eight minutes left to present the remainder of her
case. (Id. at 62:6-17.) The next morning Ms.
Bird's counsel asked for an additional half hour and for
the Court to extend the trial into Friday. (3/15/18 Trial Tr.
3:6-11:8, attached as App. 5.) She indicated that the Court
could inform the jury that it was “[her] fault”
that trial would continue an extra day. (Id.) The
Court ultimately extended trial into Friday and allowed Ms.
Bird an additional half hour, on top of the remaining
thirty-eight minutes, to complete her case. (Id.)
Again, Ms. Bird's counsel used up all her time, leaving
no additional time for her redirect/cross-examination of
Layne Morris. (Id. at 59:17-61:1.) Nevertheless, the
Court gave Ms. Bird's counsel an additional half hour for
the cross examination. (Id.) This extension occurred
following a discussion at the bench. (Id.) During
this discussion, West Valley Defendants' counsel
indicated he had three witnesses to call. (Id. at
60:25-61:4.) Once Ms. Bird's counsel again went over the
time limit, West Valley Defendants' counsel objected.
(Id. at 62:6-63:11.) Nonetheless, the Court allowed
Ms. Bird's attorney to ask an additional question.
(Id.) Following Ms. Bird's counsel's
questioning, West Valley Defendants' counsel conducted a
short redirect examination. (Id. at 63:20-64:21.)
Ms. Bird rested, West Valley Defendants' counsel then
made a motion for judgment as a matter of law, which he
argued briefly. (3/15/18 Trial Tr. 64:24-69:15, App. 5.)
After a minimal recess, West Valley Defendants' counsel
returned and informed the Court that after discussing things