David Hill Development, LLC v. City of Forest Grove, 022912 ORDC, 03:08-cv-266-AC

Docket Nº03:08-cv-266-AC
Opinion JudgeJOHN V. ACOSTA, Magistrate Judge.
Party NameDAVID HILL DEVELOPMENT, LLC, an Oregon limited liability company, 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
Case DateFebruary 29, 2012
CourtUnited States District Courts, 9th Circuit, District of Oregon

DAVID HILL DEVELOPMENT, LLC, an Oregon limited liability company, 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.

No. 03:08-cv-266-AC

United States District Court, D. Oregon, Portland Division.

February 29, 2012

OPINION AND ORDER

JOHN V. ACOSTA, Magistrate Judge.

Pending Motion

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 parte 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 omitted)); Dyer v. Calderon, 151 F.3d 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 to the jury's deliberations or the decision in this case. Accordingly, Defendants' FRCP 59 and Alternative FRCP 60 Motion for New Trial Based on Evidence of Ex Parte Juror Contact is denied.1

Statement of Facts

On Thursday, September 29, 2011, the matter of David Hill Development, LLC v. City of Forest Grove, et al., No. 3:08-cv-00266-AC (D. Or.), was submitted to the Jury 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. (Connie McKelvey Decl. ¶ 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 Decl. ¶ 2.) While waiting for her family, McKelvey witnessed a celebration by a large group at a table nearby. (McKelvey Decl. ¶ 2.) Several members of the group spoke in voices that were clearly audible and, in fact, difficult for McKelvey to ignore. (McKelvey Decl. ¶ 2.)

Relevant here, McKelvey overheard a discussion regarding a court case, and multiple references to two of her colleagues, Richard Kuhn and Daniel Lerner.2 (McKelvey Decl. ¶ 3.) She was aware those colleagues were involved in a long trial, but had no specific knowledge of this case. (McKelvey Decl. ¶ 3.) Nevertheless, it became apparent to McKelvey that David Hill's counsel or staff from the trial in this matter were sitting at the table and discussing the proceedings. (McKelvey Decl. ¶ 3.) Once McKelvey's family arrived, she tried to ignore the conversation at the nearby table, but the group was still audible. (McKelvey Decl. ¶ 4.)

McKelvey states in her declaration that she overheard "several statements that caused [her] deep concern." (McKelvey Decl. ¶ 4.) In fact, McKelvey overheard discussions "related to interactions that [David Hill's] counsel had with jurors." (McKelvey Decl. ¶ 4.) Specifically, McKelvey could hear people at the nearby table commenting on how pleased they were with the way the case was going, in part, because of the jurors "who talk to them." (McKelvey Decl. ¶ 5.) Someone even stated, "at least we have the Australian juror who talks to us." (McKelvey Decl. ¶ 5.) Apparently, the Australian juror said, "It's almost done." (McKelvey Decl. ¶ 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 Decl. ¶ 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 trial' (McKelvey Decl. ¶ 6.) At the time of these events, McKelvey was unaware the jury was deliberating. (McKelvey Decl. ¶ 7.) She was also unaware of individual jurors, including whether there was an "Australian" member on the panel.

The following day, McKelvey sent an email to Kuhn about the conversation she overheard, (McKelvey Decl. ¶ 8.) She was not able, however, to discuss the matter with Kuhn until two days later, after a unanimous verdict was rendered for David Hill. (McKelvey Decl. ¶ 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 forth 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 Decl. ¶ 5, Dec. 20, 2011.) The trial concluded the following week, with the parties giving their closing arguments on Thursday, September 29, 2011. The next morning, on September 30, 2011, the jury began their deliberations and a verdict was reached at around 5:00 p.m. that same day.

On the evening...

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