Archive for the ‘Judge Ted Stewart’ category

Judge Ted Stewart – Motion to Intervene denied

December 4, 2007

HERRIMAN CITY, a municipality, et al., Plaintiffs, vs. SHERRIE SWENSEN, as
Salt Lake County Clerk; and GARY R. HERBERT, as Lieutenant Governor of the
State of Utah, Defendants.

Case No. 2:07-CV-711 TS


2007 U.S. Dist. LEXIS 88177

November 30, 2007

This case concerns Plaintiffs’ constitutional challenge to a state statutory scheme which establishes the procedure for the creation of a new school district. The Utah Attorney General’s office represented the State of Utah (through its representative Gary Hebert, Lieutenant Governor) and is defending the constitutionality of the relevant statutes.

The Proposed Intervenors are parties to an Interlocal Agreement established for the purpose of creating an East Side School District. The Court previously denied Plaintiffs’ Motion for Permanent Injunction and the election on the issue of whether or not to create the East Side School District proceeded as scheduled. The Proposed Intervenors sought to intervene in this action as a matter of right pursuant to Fed.R.Civ.P. 24(a), arguing that they have a significant and protectible interest in the matter which is not adequately represented by the current parties. Plaintiffs opposed the intervention.

In short, the Judge ruled: “their [the Proposed Intervenors’ and the State’s] ultimate interests in defending the constitutionality of the state statute are aligned. Because of this alignment of interests in upholding the constitutionality of the statutory scheme, the Court . . . finds that representation in this matter is adequate. Therefore, the Proposed Intervenors are not entitled to intervene as a matter of right and the Court will deny the Motion.”


Judge Ted Stewart – Motion for Summary Judgment granted

June 19, 2007

MILNE, et al., Plaintiffs, vs. USA CYCLING INC., et al., Defendants.

Case No. 2:05-CV-675 TS

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

2007 U.S. Dist. LEXIS 42579

June 11, 2007

Judge Ted Stewart

This case stems from injuries sustained by Plaintiff Robert Milne, and fatal injuries sustained by Ben Hall, participants in the 2004 Tour of Canyonlands (“TOC”) mountain bike race, near Moab, Utah, as a result of a collision with a truck/trailer driven by Defendant Konitshek.

“Race Defendants” (USA Cycling, Inc., Cycle Cyndicate, Inc., and Eric Jean) organized, promoted, and conducted the race.

Plaintiffs stipulated that Mr. Hall and Mr. Milne knowingly and voluntarily executed a release agreement wherein they agreed to waive any and all claims, including those arising from Race Defendants’ own negligence, and release Defendants from all liability for injuries or death suffered while competing in the TOC race.

In short, the court granted the motion for summary judgment (due to the signed release) and dismissed the negligence, gross negligence, and wrongful death claims against the Race Defendants. Claims still remain against the driver of the vehicle.

Judge Ted Stewart – Motion to Suppress denied

May 16, 2007

At approximately 3:00 a.m. on the morning of June 16, 2006, a Taylorsville police officer observed a vehicle traveling without a front or rear license plate.  Pursuant to the lack of license plates, the officer conducted a traffic stop.  As he neared the vehicle on foot, the officer realized there was a temporary tag on the back window.  However, the temporary tag was not readable as the tint on the back window was so dark, even with the officer’s vehicle headlights shining on the back window.

The officer requested the driver’s license, registration and proof of insurance.  The driver was unable to produce any of these.  The driver did give the officer his name, date of birth, but claimed he didn’t know his own social security number.  The officer became suspicious, and the driver ultimately admitted that he gave false information regarding his identity.

Pursuant to the false information, the officer arrested the driver and conducted a search of the vehicle.  Defendant requested that the evidence found in the search of the vehicle be suppressed.

Defendant claimed that when the officer realized there was a temporary tag on the back window, the officer should have let the driver go on his way, without even asking for the driver’s license, registration and proof of insurance.  In support of this position, Defendant cites McSwain v. United States and Edgerton v. United States.  29 F.3d 558, 60-61 (10th Cir. 1994); 438 F.3d 1043, 1051 (10th Cir. 2006).

As stated by Judge Stewart, “in the present case, the Court agrees that McSwain and Edgerton are distinguishable. As noted above, the Court finds the Detective’s testimony credible that in the light provided by his headlights, he could not read the temporary tag and that he could not see the presence of an individual in the back seat due to the dark tint on the windows. Because the Court has found that the tag was not legible to the Detective as he walked up to the vehicle, the Court finds that he ‘properly detained [Defendant] because he  continued to have an objectively reasonable suspicion that a traffic violation was occurring,’ namely, that the vehicle did not have a valid registration. Accordingly, the extended detention to request and check the driver’s license, proof of insurance and registration did not violate the Fourth Amendment.  Once the driver was unable to produce any of this documentation and the Detective was unable to verify any of the information that he did provide, the Detective had probable cause to suspect that he had provided false information and to arrest him. Accordingly, the Court finds and concludes that there was no Fourth Amendment violation.”

Motion to Suppress denied.

Proctor & Gamble case

May 8, 2007

Proctor & Gamble v. Randy L. Haugen, et al


Judge Ted Stewart

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

As an update to this post, the plaintiffs have filed a response.

In short, the plaintiffs state that the defendants’ “Motion for Immediate Inquiry into Possible Jury Misconduct” should be denied and the court should strike the jurors’ affidavits since: “(1) they are rife with impermissible averments revealing the jury’s deliberations and mental processes, and thus are wholly incompetent under the plain language of [Federal] Rule [of Evidence] 606(b); (2) they contradict one another and do not supply any admissible evidence establishing either a quotient verdict or reliance on extraneous prejudicial information; and (3) they are not notarized and do not qualify as declarations under federal law because they were not signed under penalty of perjury.”

Click on the following link for the the complete Memorandum in Opposition.

Judge Ted Stewart – Motion for Preliminary Injunction granted

April 10, 2007


Case No. 1:06-CV-136 TS

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

2007 U.S. Dist. LEXIS 25650

April 5, 2007

Plaintiff is the owner of the trademark “Chem-Dry.”  The Defendants have offered for sale and/or distribution t-shirts and stickers containing a “Chem-Who?” logo. Distribution of this logo has occurred by distributing t-shirts at an industry trade show. The color and stylized design of the infringing mark are virtually identical to the trademark; the font of the letters is identical, the colors are the same, and the use of the “swoosh” is identical.

After considering the factors necessary to issue an injunction pursuant to the Lanham Act (15 U.S.C. Sec. 1116(a)), the Court granted the Motion for a Preliminary Injunction and ordered that the injunction would be effective upon the filing of a bond in the amount of $5,000.

Proctor & Gamble case – Jurors admit their verdict was not unanimous and that they averaged out their verdict

March 30, 2007

Proctor & Gamble v. Randy L. Haugen, et al


Judge Ted Stewart

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

For those unfamiliar with this case, Proctor & Gamble sued several defendants for spreading the rumor that Proctor & Gamble was somehow affiliated with the Church of Satan.  P&G claimed lost profits due to the rumor. The case was originally filed in 1995 and has been in the pre-trial stage since that time.

On March 20, 2007, the court signed a $19,250,000 judgment in favor of P&G after the jury’s verdict for that same amount.

On March 26, 2007, various defendants filed a “Motion for Immediate Inquiry into Possible Jury Misconduct.”  According to the Motion (which was supported by three affidavits by three separate jurors — affidavits were attached to the motion), one of the jurors contacted one of the defendants, “to discuss, among other things, the manner in which damages had been calculated.”  Defense lawyers talked with this juror, and with at least two other jurors. The three jurors agreed that “the jurors had awarded no damages to P&G other than ‘out of pocket’ expenses,” such as attorney fees, that had accumulated over the last 12 years.

According to the motion, the jurors were apparently unaware that the judge (not the jury) was to determine attorney fees in this particular case.  Jurors also were never requested during the case by plaintiff’s counsel to reimburse their client for out-of-pocket attorney fees. Accordingly, there was no evidence presented during the trial regarding reasonableness, necessity, or amount of the attorney fees.

However, according to the motion, it appears that the majority of the jury (which consisted of 11 members), felt that although P&G wasn’t entitled to direct economic damages, P&G was entitled to reimbursement of attorneys’ fees (despite no request by plaintiff’s counsel or instruction by the court to consider attorneys’ fees).

Since the jury had no evidence on how to compute attorneys’ fees, a few juror members offered their opinion in the jury room as to what attorneys charge per hour.  Some said $300/hr., others ventured that it was $350/hr. or even $600/hr.  The jurors continued in their estimation of total attorney’s fees by looking at “the number of lawyers around P&G’s counsel table.”  All of this alleged jury banter is supported by the three juror affidavits presented in the motion.

In trying to come to an agreement as to how much to reimburse, all 11 jurors gave their separate opinion to each other as to the amount of attorneys fees that should be awarded.  “Ultimately, the jurors agreed to add up all of their various guesses (including two ‘zero’ verdicts) and divide by the number of jurors.” The average was calculated to $19,250,000, and the jury returned a verdict for that amount.

This scenario is frankly a nightmare for trial attorneys.  It confirms (again) a long-held belief by many, that despite the lawyers’ best efforts: (1) juries often don’t understand what they are supposed to do; (2) juries often don’t follow the jury instructions; and (3) juries often compromise or “average” their disagreements into what the jury later declares to be a “unanimous” verdict.

As a side note, District of Utah Local Rule 47-2(b) states: “The court will instruct jurors that they are under no obligation to discuss their deliberations or verdict with anyone, although they are free to do so if they wish. The court may set special conditions or restrictions upon juror interviews or may forbid such interviews.”  I have no information as to whether the court set any “conditions” or “restrictions” for the jurors in this case.

Remember that although the motion is supported by three affidavits from three separate jury members, the plaintiff has not had a chance to respond.  We eagerly await such response and I will report upon it when it is filed with the court.

Motion for Inquiry

Jury instructions

Verdict form

Judge Ted Stewart – Motion to Set Aside Default Judgment granted; Motion to Dismiss for Untimely Service denied

February 5, 2007

JANET S. JONES, Plaintiff, vs. SALT LAKE COMMUNITY COLLEGE, DAVID BURKE, and KEVIN SPRAGUE, individuals, and JOHN DOES 1-10., Defendants.

Case No. 2:04-CV-1183 TS

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

2007 U.S. Dist. LEXIS 7466

February 1, 2007

Plaintiff filed a Complaint alleging, among other claims, Title VII violations against all defendants.  Defendant Kevin Sprague failed to timely Answer.  Accordingly, Plaintiff filed a Motion for Entry of Default and the Clerk entered default against Sprague.

The Court stated: “For good cause shown the court may set aside an entry of default.” Fed. R. Civ. P. 55(c). . . . The relevant factors for vacating an entry of default include determining whether “(1) the moving party’s culpable conduct did not cause the default; (2) the moving party has a meritorious defense; and (3) the non-moving party will not be prejudiced by setting aside the entry of default.”

Motion to Set Aside Default Judgment granted.

Defendant Sprague countered with a Motion to Dismiss due to Untimely Service.  Service was not made until 22 months after the Complaint was filed.  Federal Rule of Civil Procedure 4(m) requires service within 120 after filing of the complaint unless the plaintiff can show “good cause” for extending such deadline.

Plaintiff claims that she had good cause for failure to timely serve, since she simply “could not find him.” Defendant claims that plaintiff’s efforts “to find him” were less than  stellar, and in any case, far too late.

After hearing such arguments, the Court held that plaintiff  (“narrowly”) demonstrated sufficient good cause to extend the time allowed for service.

Motion to Dismiss for Untimely Service denied.