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Bird v. West Valley City

United States District Court, D. Utah, Central Division

March 28, 2019

KAREN BIRD, an individual, Plaintiff,
WEST VALLEY CITY, a political subdivision of the State of Utah, and KELLY DAVIS, in his official and individual capacities, Defendants.



         Before the Court[1] 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[2] 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.”[3] (Id. at 1-2.)

         The 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.)

         The 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.


         In 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.

         In 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.)

         The 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.


         Pursuant 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))).

         A 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.


         Ms. Bird asserts that West Valley Defendants' counsel engaged in various instances of misconduct. The Court addresses each of her arguments below.

         A. 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 Merit

         Ms. 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.)

         The 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.

         First, 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.

         Second, 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 time.

         Prior 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.[4]) 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.)

         Halfway 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.)

         After 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 ...

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