Archive for the ‘Local rules’ category

Judge Paul G. Cassell – Motion for Summary Judgment granted

June 19, 2007


Case No. 2:06-cv-313

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

2007 U.S. Dist. LEXIS 43033

June 13, 2007

Defendants filed a Motion for Summary Judgment on March 14, 2007. Plaintiff’s response was due on April 13, 2007. On April 20, 2007, Magistrate Judge Nuffer granted an extension to file the response with the new deadline being May 18, 2007. On May 31, 2007, no response had been filed and the court ordered plaintiff’s counsel to show cause as to why it should not grant the defendants’ motion for summary judgment due to his non-opposition. The court ordered plaintiff’s counsel to respond within ten days.

Plaintiff’s counsel responded with a filing that stated (in whole):

“COMES NOW, Plaintiff, through Counsel, in opposition to Defendant’s Motion for Summery Judgment stating that there is no legal grounds upon which Defendant should be granted Summer Judgment. Plaintiff will more fully outline his opposition in Supporting Memorandum. Plaintiff would request that a hearing be set to provide Oral Argument in this matter.”

Plaintiff’s counsel filed no supporting memorandum with the above document.

In dismissing the case, Judge Cassell stated: “It is not the job of the court or of the defendants to make the plaintiff’s arguments for him, and the court deems arguments not addressed in an opposition to be abandoned.”

Case dismissed.


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

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:,1249,660202375,00.html

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

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?

District of Utah has upgraded to CM/ECF Version 3.0

January 5, 2007

The District of Utah has upgraded to CM/ECF Version 3.0.

For those interested in the changes, see here and here.

New Federal Rules of Civil Procedure

December 13, 2006

Changes to the Federal Rules of Civil Procedure became effective on December 1, 2006. The following rules have been amended:

  • Appellate Rule 25 and new Appellate Rule 32.1;
  • Bankruptcy Rules: 1009, 5005 and 7004;
  • Civil Rules: 5, 9, 14, 16, 24, 26, 33, 34, 37, 45, 50 and 65.1;
    Civil Form 35; Supplemental Rules A, C, and E and new Civil Rule 5.1 and new Supplemental Rule G;
  • Criminal Rules: 5, 6, 32.1, 40, 41 and 58;
  • Evidence Rules: 404, 408, 606 and 609

Full text of the amended rules are available at

New Local Rules

December 11, 2006

Click on the following link to find the new Local Rules for the District of Utah.

 Amended December 1, 2006.