Archive for the ‘Judge Dale A. Kimball’ category

Judge Dale A. Kimball – Motion for New Trial Granted

November 27, 2007

UNITED STATES OF AMERICA, Plaintiff, vs. KERRY DEAN BENALLY, Defendant.

Case No. 2:07CR256 DAK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

2007 U.S. Dist. LEXIS 85620

November 20, 2007

Judge Dale A. Kimball

Criminal trial was held on October 9-10, 2007. The jury returned a verdict of guilty on the afternoon of October 10, 2007. On October 11, 2007, counsel for defendant was contacted by a juror who expressed concern regarding racially prejudicial statements made by two jurors during the deliberations. The prejudice of these jurors had not been disclosed to the court and counsel during voir dire. Defense counsel then talked with another juror, who confirmed that such statements had been made during deliberations. Motion for New Trial was subsequently filed by defense counsel.

The court asked questions during voir dire that were specifically targeted at determining whether anyone had any prejudice toward Native Americans or held any preconceived notions about the Native American race that may impact their ability to be impartial in the case. Both jurors remained silent when these questions were asked, and did not convey to the court that they held any prejudice. Moreover, they failed to disclose to the court that they had lived on or near a reservation, and did not bring to the court’s attention that they had preconceptions about Native Americans due to their contact with that culture.

The court also stated that “had they [the jurors] answered the voir dire questions honestly and revealed their past contact with reservations and their belief that all Native Americans get drunk and get wild or violent, they would have been challenged for cause.”

“During jury deliberations, there was a conversation regarding the need to send a message back to the reservation, and one of the jurors clearly introduced information that was not in evidence. The juror considered and relied upon information contained in stories he had heard from his family members who were involved in law enforcement. These stories related directly to the type of case that was at issue in the instant case. It is unknown how many jurors relied on the information communicated by this juror.”

Based on two jurors’ failure to answer material voir dire questions honestly and the consideration of information not in evidence, Defendant’s Motion for New Trial was granted and the jury prior verdict was set aside.

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Don’t mess with timestamps

March 14, 2007

Several federal courthouses have dropboxes outside the courthouse that allow after-hour filings.  The dropbox has both a weather-protected timestamp and a separate slot to slip in the document.

In the District of Utah, if a document is time-stamped, and immediately placed in the dropbox, the document is considered timely filed, even if its after regular courthouse hours.

What one should NOT do, is time-stamp the document and put it in the dropbox several days later, attempting to pass off the document as having been “filed” on the date reflected by the time-stamp.

See the following articles:

http://deseretnews.com/dn/view/0,1249,660202375,00.html

http://www.sltrib.com/ci_5422696

Judge Nuffer also had the following comments regarding this issue on his March 5 blog entry:

 http://utd-cmecf.blogspot.com/

Judge Dale A. Kimball – Motion for Summary Judgment granted

March 13, 2007

CHRIS WILLIAMS, Plaintiff, vs. TIM DAHLE IMPORTS, INC., a Utah corporation et al., Defendants.

Case No. 2:03CV46 DAK

United States District Court for the District of Utah, Central Division

2007 U.S. Dist. LEXIS 16298

March 7, 2007

Plaintiff filed suit against Tim Dahle for alleged violations of the Equal Pay Act.  As stated by the Court: “to establish a prima facie case under the Equal Pay Act, Plaintiff must show (1) that she was performing work that was “substantially equal” to that of male coworkers, with “equality” being measured on the basis of the skills, duties, supervision, effort, and responsibilities of the jobs; (2) the conditions where work was performed were basically the same; and (3) male employees were paid more.”

The Court found that Plaintiff did not establish a prima facie case.  “Plaintiff has not offered any evidence to demonstrate that she and the other male managers worked under similar working conditions or that the same effort was required.”

Motion for Summary Judgment granted.  Case dismissed.

Article – Electronic Filing in Federal Court

January 31, 2007

I wrote an article regarding electronic filing in federal court that was just published in the Jan./Feb. issue of the Utah Bar Journal.  If you’re interested in reading the article, click on the link below.

Electronic Filing in Federal Court – Where are We Now?

Judge Dale A. Kimball – Motion for Summary Judgment granted

September 6, 2006

2006 U.S. Dist. LEXIS 62521

ERIC PLAYER, Plaintiff, vs. NORTHROP GRUMMAN CORPORATION, Defendant.

Case No. 2:05CV753

August 31, 2006

Plaintiff brought this case under ERISA for statutory penalties alleging that his employer, Northrop Grumman, failed to send him full copies of the applicable long-term disability policy he requested. Defendant moved for summary judgment.

Motion for summary judgment was granted since, among other reasons, 29 USC Section 1024(b)(4) requires a participant to request plan documents from the Plan Administrator and only the Plan Administrator can be subject to the statutory penalty for failing to provide the requested documents. Plaintiff’s employer was held to not be the Plan Administrator. The Plan Administrator was not named as a defendant in this case.

Judge Dale A. Kimball / Magistrate Judge Brooke C. Wells – Motion to Dismiss granted

August 28, 2006

IRVING K. BIGELOW, v. STATE OF UTAH et al.

Case No. 2:06CV516

2006 U.S. Dist. LEXIS 60069

August 23, 2006

Judge Dale A. Kimball / Magistrate Judge Brooke C. Wells

Plaintiff, Irving Karl Bigelow pro se, filed suit under 42 U.S.C. § 1985 against the State of Utah, State District Judge John Paul Kennedy, Newton Ghbor a detective with the South Salt Lake Police Department (SSLPD), Carla Armstrong also a detective with SSLPD, Colleen Barrette an agent with the Office of Recovery Services and Thomas Arne. Bigelow alleges violations of his rights in connection with a child abuse investigation and the “false evidence” that led to the removal of his son. Specifically, Bigelow claims violations of his right to fair and equal access, denial of counsel, and conspiracy to commit theft of a child.

Bigelow was seeking a million dollars a day for every day his son is gone.

This matter was referred to Magistrate Wells pursuant to 28 USC § 636(b)(1)(B). In short, the Magistrate recommended that Bigelow’s complaint should be dismissed for failure to state a claim upon which relief may be granted.

In reviewing the Magistrate’s recommendation, Judge Kimball noted that: “Mr. Bigelow has not objected to the Report and Recommendation, and the time for doing so has elapsed.”

Motion to dismiss granted.

Judge Dale A. Kimball – Claims of cruel and unusual punishment – Motion for summary judgment denied

August 21, 2006

2006 U.S. Dist. LEXIS 56283

MICHAEL GRANIERI, Plaintiff, v. BRUCE BURNHAM, M.D., ET AL., Defendants.

Judge Dale A. Kimball

August 9, 2006

Plaintiff, Michael Granieri, was an inmate at the Central Utah Correction Facility (“CUCF”) in Gunnison, Utah. In March 2002, he began having severe abdominal pains, along with diarrhea and vomiting, and was seen by the physicians, physicians assistants, and nursing staff at the facility’s infirmary. Plaintiff’s conditions continually worsened over the next six to eight weeks and he lost between twenty-five to thirty pounds before his condition was properly diagnosed. At one point, he was also prescribed a steroid-based medication that reportedly helped while he was taking it. However, after the medication was discontinued his symptoms returned.

On May 6, 2002, Plaintiff was transferred to the Draper facility and was treated at the facility’s infirmary. Plaintiff felt something burst inside his stomach. He called to the staff for help and was told to “shut up and leave us alone.” On May 8, 2002, Plaintiff was transported to the University of Utah Medical Center’s emergency room. Upon arrival, Plaintiff was diagnosed with peritonitis and a working diagnosis of a ruptured appendix. Plaintiff underwent surgery the next day. Plaintiff’s appendix was removed, twelve to eighteen inches of his intestines were removed, and a four inch section of his colon was removed. Plaintiff’s diagnosis was Crohn’s disease with secondary small bowel perforation. Plaintiff lost his distal ileum, which prevents him from absorbing bile salts and necessitates the need for cholestyramine, his terminal ileum will never “grow back,” and he has chronic diarrhea which will cause some degree of disability.

Plaintiff was discharged from the University of Utah Medical Center on May 20, 2002 to the Utah State Prison and returned to the CUCF on May 28, 2002. Plaintiff was prescribed Chlorestyramine and Pentasa and told to eat a bland diet to help with the Crohn’s disease. Plaintiff was also given literature about Crohn’s disease and dietary information. When he returned to CUCF, the doctors substituted Sulfasalazine for the Pentasa, the information on Crohn’s disease was taken away from him, and no special diet was allowed.

In denying Defendant’s Motion for Summary Judgment, the Judge noted: “In this case, defendants allowed Plaintiff’s condition to worsen over the course of six to eight weeks before sending him to the hospital. Plaintiff may also have suffered from vague symptoms but the medical staff knew that it was gastrointestinal. Given their failure to diagnose the problem, the delay in sending Plaintiff to the hospital was significant. And, in some instances, Plaintiff was denied access to the nurses and doctors at the prison. He was also told that his ailments were only in his head even though, at times, his condition caused him to curl up in a fetal position or lose consciousness. The day before he was taken to the hospital, and six to eight weeks after the symptoms began, Doctor Roberts claimed that Plaintiff was guarded and factitious.”