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Hardenbrook v. United Parcel Service

September 3, 2010


The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge



Pending before the Court in the above entitled matter are: 1) the Defendant's Motion for New Trial Due to Improper Argument of Counsel and Juror Misconduct, 2) Defendant's Motion to Strike, and 3) Plaintiff's Motion for Extension of Time.*fn1 The parties have fully briefed the motions and they are now ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the motions shall be decided on the record before this Court without oral argument.


The Plaintiffs, Darel Hardenbrook, Paul Gooch, and Robert Orloff, initiated this action on November 2, 2007 by filing a Complaint in state court against the Defendant, United Parcel Service, Co. ("UPS"), alleging retaliation in violation of Idaho public policy, breach of contract, and breach of the implied covenant of good faith and fair dealing. (Dkt. No. 1, Att. 2.) On December 5, 2007, UPS removed the case to this Court on diversity grounds. (Dkt. No. 1.) The dispute between the parties relates to employment actions taken by UPS as to each of the Plaintiffs; Mr. Gooch and Mr. Hardenbrook were terminated and Mr. Orloff was demoted.

The Plaintiffs' complaint alleged that UPS' employment actions against them were made in retaliation to their inquiries regarding the Department of Transportation's ("DOT") hours of service regulations. (Dkt. No. 1, Att. 2, p. 2.) The DOT regulations prohibit drivers of commercial vehicles from driving if they have exceeded a specified number of work hours for a prescribed period of time. UPS denied the allegations and filed a Motion for Summary Judgment. (Dkt. No. 40.)

On December 8, 2009, this Court entered an Order granting in part and denying in part the Motion for Summary Judgment. (Dkt. No. 84.) The Court's Order dismissed all of Mr. Orloff's claims against UPS and dismissed two of the three claims raised by both Mr. Gooch and Mr. Hardenbrook. Eventually, Mr. Gooch's claims were resolved by the parties and only Mr. Hardenbrook's claim for wrongful termination in violation of public policy remained. (Dkt. No. 97.) Thereafter, the parties filed Motions in Limine, Trial Briefs, Proposed Voir Dire, and related pretrial filings. The Court entered Orders on certain of the Motions in Limine. (Dkt. Nos. 118, 119, 123.) Trial began on January 12, 2010. The jury returned a Special Verdict on January 21, 2010 in favor of Mr. Hardenbrook awarding a total amount of damages of $1,476,367.00. (Dkt. No. 142.)

On March 4, 2010, UPS filed its post-trial Motion for a New Trial Due to Improper Argument of Counsel and Juror Misconduct. The parties each filed Memorandums, Declarations, Affidavits and other materials regarding the Motion. UPS has also filed a Motion to Strike certain of Mr. Hardenbrook's Declarations. Mr. Hardenbrook has countered by filing a Motion for Extension of Time to File Affidavits. The Court now takes up these pending Motions.*fn2


1. Motion to Strike and Motion for Extension of Time

UPS has filed a Motion to Strike the Affidavits of Juror 2 and 7 filed by Mr. Hardenbrook in support of his response brief opposing UPS's Motion for New Trial. (Dkt. No. 191.) The Motion to Strike argues the Affidavits should not be considered as they are untimely as provided for in Rule 59(c). Rule 59(c) states that "[w]hen a motion for new trial is based on affidavits, they must be filed with the motion. The opposing party has 14 days after being served to file opposing affidavits. The Court may permit reply affidavits." In this case, UPS filed its motion on March 4, 2010. Mr. Hardenbrook filed his response and supporting Affidavits on March 29, 2010.

Mr. Hardenbrook has in turn filed a Motion for Extension of Time in which to file the Affidavits pursuant to Rule 6(b)(1)(B) which provides that the Court may, for good cause, extend the time for doing an act where the party failed to act because of excusable neglect. See Fed. R. Civ. P. 6(b)(1)(B). Here, Plaintiff's counsel argues its filings were timely because the Court's electronic notification generated a due date of March 29, 2010 which they rely upon as if it were an order of the Court setting such deadline. (Dkt. Nos. 158, 195.) Further, Plaintiff's counsel points to Local Rule 7.1(c) which requires responsive briefing to be filed within twenty-one days after service. As such, Plaintiff's counsel argues they filed the Affidavits timely on March 29, 2010.

The Juror Affidavits are untimely. Rule 59(c) is clear that the Plaintiff had fourteen days in which to file his opposing affidavits. The electronic notification date is an automated function of the Court's electronic filing system and does not stand as an Order of the Court. The automated date is not an order of the Court as defined in the Electronic Case Filing Procedures located on the Court's website, See Dist. Idaho Loc. Civ. R. 5.1(b); Electronic Case File Procedures (amended 2009), p. 9-10 at ¶ 12(A). The Plaintiff's reliance upon such date is in error. The general briefing schedule for filing responsive materials found in Local Rule 7.1(c) likewise does not trump Rule 59(c). As such, the Motion to Strike shall be granted. Further, the Court finds the Plaintiff has failed to show good cause to extend the time for filing due to excusable neglect pursuant to Rule 6(b)(1)(B). Accordingly, the Motion for Extension of Time is denied. The Affidavits will not be considered by the Court in ruling upon the Motion.

2. Rule 59(a) Motion for New Trial Due to Improper Argument of Counsel and Juror Misconduct

UPS seeks a new trial pursuant to Rule 59(a) due to 1) improper argument of Plaintiff's counsel and 2) juror misconduct. Mr. Hardenbrook opposes the motion arguing Plaintiff counsel's conduct was not improper, the jury was not prejudiced, and Juror Number 4's conduct did not put extraneous evidence before the jury that prejudiced the verdict.

A. Conduct of Counsel

UPS asserts that Plaintiff counsel's continuous unsubstantiated representations to the jury that UPS violates DOT reporting regulations were such that the jury was improperly influenced in reaching its verdict. This is evidenced, UPS contends, by the nature and frequency of the comments, irrelevance of the comments to the issues before the jury, the manner in which the comments were treated, the strength of the case, and the verdict itself. (Dkt. No. 158.) In response, Plaintiff counters that it did not engage in misconduct, any misconduct that may have occurred was cured by the Court's instructions, ...

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