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Should prosecutors object to a defendant's request for unanimous juries?
Improper Joinder Demurrer: What Issues Remain?
With the issuance of State v. Warren by the Oregon Supreme Court, the lengthy litigation over whether the face of the indictment must affirmatively justify joinder of multiple counts is over. It must, or the indictment is subject to a demurrer.
Nevertheless, some questions remain. Here are three.
1. Does an indictment that alleges that crimes are from the same criminal episode prohibit the state from arguing otherwise at sentencing?
State v. Bush held "same criminal episode" language in the indictment did not prohibit, under the doctrine of equitable estoppel, the state from taking a contrary position at sentencing. Part of the court's analysis was based on the lack of any reliance by the defendant on that language. What is worth noting is that Bush was decided more than a decade before the Court of Appeals ruled in State v. Poston that an indictment without such language might be subject to a demurrer. I see cases now where the relevant language is enough to keep the defendant from filing the demurrer, which would, it would seem, show detrimental reliance by the defendant. In sum, Bush may not be good law anymore.
2. If the state alleges grounds for joinder, but those grounds aren't supported by the facts, may a defendant move for a mistrial at the close of the state's case?
The answer would appear to be "yes."
If, however, a case goes to trial and the evidence establishes that the charges are not properly joined, then either: (1) the improperly joined charges should be dismissed at the defendant's motion so that they can be the basis of a separate, later trial, see, State v. Clipston, 3 Or. App. 313, 473 P.2d 682 (1970); or (2) if the jury has possibly been unduly influenced by the evidence received concerning the improperly joined charges, then the only remaining procedure is for the defendant to move for a mistrial.
As you can see, Sanchez is from 1973, but there wouldn't appear to be any flaws in its holding or any reason to believe it has been undermined by subsequent case law.
3. Can the state amend the indictment, without resubmitting it to the Grand Jury, to include the necessary joinder language?
State v. Haji says yes. But that's a Court of Appeals decision, and the Supreme Court has just granted review. The argument for why Haji is wrong is this. An error cannot both merit demurrer and be a defect in form—those categories are mutually exclusive. The granting of a demurrer would either end the case in its entirety, or it would require the grand jury to consider a new and different indictment. Allowing the state to simply add language that would obviate either outcome alters the essential nature of the indictment and effectively adds charges to the indictment that should not be there. Because the defect is one of substance and not form, the prosecutor has no authority to amend the indictment in this case.
Do DCS and PCS now merge?
In 1991, the Oregon Court of Appeals held that Delivery of a Controlled Substance (DCS) and Possession of a Controlled Substance (PCS) do not merge, because each crime contains an element the other does not. Specifically, a person can deliver a controlled substance (which, by statute, includes "attempted delivery") but not simultaneously possess the controlled substance. State v. Sargent, 110 Or App 194 (1991).
In Oregon law, merger refers to the combination of two or more guilty verdicts into a single conviction. If DCS and PCS were to merge, the benefits are real but relatively marginal. Merger of those two crimes would be unlikely to reduce the defendant's time in custody, but it could (1) reduce fines and fees, (2) possibly help with expungement many, many years later and (3) reduce the defendant's criminal history score, in case he or she is charged with more crimes in the future. Generally speaking, though, it's always better to have fewer convictions. Most important of all, however, is that it would require prosecutors to improve their offers pre-trial. A prosecutor who makes no concessions on the DCS because he or she is already agreeing to dismiss the PCS may be pressured to make additional concessions to keep a case from going to trial, since, if the counts merge, the PCS is going away anyway.
There are four different ways for crimes to merge, but the one most relevant to the Sargent analysis is whether, by committing DCS, a person necessarily commits PCS. If yes, then they merge. If not, then they don't.
You might think, of course you have to be guilty of PCS when you commit DCS. You've got to have/possess the drugs to deliver them, don't you?
Not according to the Sargent court. The reason is because of how "delivery" is defined in Oregon law.
ORS 475.005 defines "delivery" as "the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship."
The key thing to note is that the opinion hinges on the defendant soliciting a third party to delivery drugs, which amounts to an attempted delivery. This is distinct from a theory of accomplice liability. If a defendant is convicted as an accomplice to another person's delivery and possession of drugs, he'd still be guilty of possession even if he didn't personally possess the drugs themselves.
Accomplice liability makes a person who aids or abets a crime liable for that crime even though the accomplice may not have committed any of the acts that the crime entails. See ORS 161.155(2)(b) (criminal liability for aiding and abetting another person in planning or committing a crime). Because the principal who utters a forged instrument also necessarily possesses it, a person who aids and abets the principal in the crime of forgery by definition also aids and abets the principal in the crime of criminal possession of a forged instrument. An accomplice who is liable for forgery is also liable for criminal possession of a forged instrument."
Blake didn't overrule Sargent because unlike DCS, a person could not be convicted of "uttering" a forged instrument merely by attempting to do so. If they couldn't be convicted merely for the attempt, then they couldn't be convicted for mere solicitation.
Even before the events of last week, the Sargent holding was based on a questionable view of the relevant legislative history, specifically whether or not the legislature intended that solicitation by itself amounted to an attempt. There was a subsequent COA case from 2005 that went into the problems with the Sargent reading of legislative history, but reaffirmed Sargent anyway, in part because no one was arguing at that time Sargent was wrong decided. That case is State v. Johnson, 202 Or App 478 (2005).
Thus, the rule is that to be guilty of attempt, the defendant must personally engage in conduct that constitutes a substantial step, and that substantial step must be toward a crime that the defendant intends to participate in himself.
Kimbrough is a deep-dive into legislative history that does need not to be summarized here. What is important to note is that the holding of Sargent that DCS and PCS do not merge depended on the COA's conclusion that solicitation to deliver drugs constituted an attempt to deliver drugs. The OSC has now held that solicitation is insufficient to constitute attempted delivery, unless the defendant is going to participate, in which case the defendant himself is in possession of those drugs, either as a principal or as an accomplice.
If you are a defense attorney in Oregon, preserving this issue after trial is simple. You can write a memo that cites to the cases above or, if your court tolerates informality, you can simply give them a copy of the blog post. In my experience, most trial judges would not merge, until Sargent is explicitly overruled. But as long as you preserve the issue, an appellate attorney can do the heavy lifting.
Yesterday, in a case called Timbs v. Indiana, the United States Supreme Court heard oral argument on whether the Excessive Fines Clause of the 8th Amendment applied to the states.
When the Bill of Rights -- the first 10 amendments to the US Constitution -- was first adopted, it did not apply to the states. However, the passage of the Due Process Clause of the 14th Amendment -- which does apply in state court -- was widely interpreted as incorporating some of the first 10 amendments, that is, limiting state power in state criminal prosecutions, primarily. But which federal constitutional rights protect a defendant in state court and which do not? Early on, it was hit or miss, and in 1884, in a case called Hurtado v. California, the US Supreme Court appeared to hold that the indictment clause in the Fifth Amendment does not apply to state prosecutions. More on this later.
Over time, the Supreme Court increasingly held that the Due Process Clause of the 14th Amendmendment incorporated more and more of the Bill of Rights. And the trend has been to reverse earlier opinions that said otherwise. For example, it wasn't until 2010 that the US Supreme Court held that the 2nd Amendment (the right to bear arms) was incorporated by the Due Process Clause, reversing very old precedent. Thus, in state court, a defendant could cite the federal protections of the 2nd Amendment when challenging a state statute.
Why does this matter in Oregon? It matters for two reasons. Two provisions from the Bill of Rights that have arguably not yet been incorporated are the right to a unanimous jury (which is not expressly found in the Bill of Rights) and, as mentioned above, the right to a Grand Jury indictment.
I'm not going to talk about the first. This post is about whether the Grand Jury Clause applies to Oregon. But before we get to that, your first question should be, "who cares?"
That should be your first question because Oregon's Constitution has its own Grand Jury clause, Article I, section V. It states that felony prosecutions require an indictment by Grand Jury, a waiver of indictment or a preliminary hearing. If the Oregon Constitution guarantees at least a preliminary hearing, why does it matter that the federal constitution does not?
But the reason it matters is this: the US Constitution recognizes as elements of crimes -- often referred to as Blakely elements -- that the state constitution does not. These elements enhance or aggravate a crime, and they can significantly lengthen the defendant's period of incarceration. Because they are not recognized as elements of a greater offense under the Oregon Constitution (with some exceptions), they do not need to be submitted to a Grand Jury under the Oregon Conbstitution. In other words, the prosecutor can threaten to double the defendant's potential sentence by dashing off -- without any oversight by a Grand Jury or a magistrate -- a number of often ill-thought-out enhancement factors up to 60 days obtaining the indictment.
But because these are elements of aggravated offenses under the US Constitution, if the Grand Jury clause was incorporated as part of the 14th Amendment, and therefore applicable to the state's, the current statutory notice scheme for enhancement factors would be unconstitutional. It would require some form of oversight, and as a result, we would see far fewer enhancements and thus shorter prison sentences.
Put another way, if Hurtado v. California were overturned, then a large number of defendants would benefit. For one, it would decrease the prosecutor's leverage pre-trial. More than anything else -- even more than unanimous juries -- it would have a significant impact on the number of people in prison by generally reducing the length of prison sentences.
Since Justice Gorsuch appears to believe that partial incorporation doesn't pass the laugh test, maybe we should be thinking about challenging the use of enhancement facts that haven't been submitted to the Grand Jury and give him the opportunity to apply the last part of the 5th Amendment to Oregon criminal prosecutions.
But I mentioned above that Hurtado "appeared" to hold that the GJ Clause doesn't apply to state prosecutions. Why the hedge?
Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.
In other words, a preliminary hearing in state court prosecution satisfies Due Process. If this is correct, enhancement factors that aren't subject to preliminary hearings, even if Hurtado isn't overturned, violate the US Constitution.
At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.
That sounds like exactly what Hurtado did. Maybe you don't get an indictment in state court but the protection that an indictment is supposed to provide is satisfied by a preliminary hearing.
A worthwhile read from the Washington Post can be found here.
An article on this topic here.
For two opinions that (mostly) reach the same conclusion, there are profound differences in the approaches taken by the COA and the Oregon Supreme Court. The following analysis is intended to highlight the practical differences in the two Mansor opinions, and why you should not assume that a cell phone or computer search warrant executed prior to June 28, 2018, is valid under the current interpretation of Article I, section 9.
I hope to have my own thoughts on the new Supreme Court opinion in Mansor up soon. Suffice it to say, for now, that you shouldn't be relying on the memos you wrote after the COA opinion was issued. The new opinion requires a significantly different analysis, which is better for some defendants but worse for others. Furthermore, boilerplate Mansor motions really will be worthless. Very fact-specific care will be needed each time you challenge an electronic devices search warrant on particularity grounds.
In the meantime, please enjoy this analysis by Orin Kerr, who was heavily quoted in the opinion.
Post-Carpenter, What's the Status of the 3rd-Party Doctrine?
It lives, but there is an equilibrium-adjustment cap on it. The old understanding was that the third-party doctrine is a bright-line rule: When you voluntarily disclose information to someone, whether to an undercover officer or a business you're working with, you don't have Fourth Amendment rights in the recipient's copy of that information. Chief Justice Roberts says that the third-party doctrine is more limited than that.
"There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information."
As many of you may know, I've written about the limitations on the third-party doctrine under the Oregon Constitution ever since St v Ghim came out. OCDLA had a presentation on Ghim at the Winter Conference 2017, which is looking rather prescient right now.
There is a lot for defense attorneys to work with now, under both Constitutions.
In a good opinion from the Court of Appeals today, State v. Gollas-Gomez, the defendant's convictions were reversed because the trial court refused to remove for cause a juror who admitted that he would be partial in the state's favor. Both sides are guaranteed the right to an impartial jury.
The issue was well-preserved, including the fact that the defendant used all of his peremptory challenges, a requirement for appealing a trial court's decision not to remove a juror for cause.
And the juror was ultimately seated on the jury.
Had the juror not been seated on the jury, because the defendant used one of his peremptories on the juror, it is likely, under current case law, the convictions would not have been reversed, because (1) no harm if the biased juror is not seated on the jury and (2) defendant does not have a due process right to peremptory challenges.
This puts defense counsel in an awkward position. If the judge refuses to remove a juror for cause, the defendant can still remove the juror (to avoid poisoning the trial) but gives up the issue for appeal. On the other hand, it's just one juror, and who wouldn't want to good basis for reversal, especially on multiple measure 11 charges, even if the only way to do so is to leave the juror on.
There may be a way around this. The defendant does not have a due process right to peremptory challenges, but if peremptory challenges exist, the defendant has a right to the same number of challenges as the state. There is no reason the state should have an advantage. After all, if a statute or UTCR expressly gave the state more peremptory challenges at the outset than the defendant, that would be a clear constitutional violation. Why should it be any different if the same result is achieved by an erroneous ruling by the court that effectively reduces the number of challenges a defendant has?
And here is Orin Kerr's hot take on the curtilage issues the opinion raises.
Rental Car. Driving not on rental agreement. Reasonable expecation of Privacy?
Held: 1. The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. Pp. 6–13.
That's a no-no. Summary of SCOTUS's capital opinion here.
EVIDENCE — Hearsay, official records, and business records.
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Amy Bagdasarian is an associate with the intellectual property Technology Transactions group in White & Case's Silicon Valley office and her practice focuses on transactional and intellectual property matters.
Marvell Semiconductor, Inc., et. al. v. CSIRO. Representation of Marvell in a patent infringement case relating to wireless semiconductor products.
ATEN International Co., Ltd. v. Belkin and ATEN International Co., Ltd. v. Emine. Representation of ATEN in patent infringement cases relating to KVM switches.
Oplink Communications, Inc. v. O-Net Communications (Shenzhen) Ltd. Representation of Oplink in a patent infringement, trade secret misappropriation and breach of contract case relating to optical telecommunications networks. The parties settled the dispute.
Quality Imaging Products, Inc. v. ISP Services. Representation of ISP Services in a District Court action brought by Quality Imaging Products for a series of claims including breach of contract, fraud and conspiracy relating to a software product distributor agreement.
Taiwan Semiconductor Manufacturing Co. (TSMC) v. Semiconductor Manufacturing International Corp. (SMIC). Representation of TSMC in a trade secret misappropriation action in Superior Court of California.

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In United States v. Rendelman, 495 F. App'x 727 (7th Cir. 2012), Scott Rendelman appealed his conviction of contempt of court, retaliating against federal officials for the performance of their duties, and threatening the President of the United States. He argued, among other things, that the Southern District Court of Illinois abused its discretion by refusing to authorize a psychological evaluation of his mental state at the time of the offense and by excluding evidence from mental health evaluations conducted during prior prosecutions. He further argued that evidence from these sources would have shown that he was not culpable, because he was unable to stop himself from writing threatening letters to various government officials.
Mr. Rendelman had been writing obscene and threatening letters to prosecutors, judges, and presidents for over 20 years. While incarcerated in the federal penitentiary in Marion, Illinois, for threatening public officials, he wrote threatening letters to the President, which were intercepted by staff and given to the Secret Service. A grand jury investigation subsequently followed. He refused to comply with two grand jury subpoenas for handwriting samples, even after the district court ordered him to comply. Following his second refusal, the prosecutor informed him that he would be charged with contempt of court. Shortly thereafter, he wrote a letter threatening to murder and sexually assault the prosecutor. As Mr. Rendelman continued to refuse to provide an example of his handwriting, a psychologist, Dr. Kevin Miller, was retained by appointed counsel to evaluate his mental state and competence to stand trial. Dr. Miller concluded that Mr. Rendelman was competent to stand trial and that he understood that refusing to provide handwriting examples was wrong. Dr. Miller's diagnosis was unspecified autism spectrum disorder. He additionally noted that Mr. Rendelman was in control and fully aware when writing the letters and that his letter writing was not a result of compulsions, as seen in obsessive-compulsive disorder.
The government arranged for a second psychologist, Dr. Christina Pietz, to evaluate Mr. Rendelman's competence to stand trial and his mental state as it pertained to refusing to provide a handwriting sample. Dr. Pietz opined that Mr. Rendelman was competent to stand trial and that he understood that refusing to provide a handwriting sample was wrong. Her diagnosis was obsessive-compulsive personality disorder, with the presence of narcissistic personality traits. In addition, she agreed that Mr. Rendelman was in control of his behavior when writing the letters.
Before trial, Mr. Rendelman requested authorization to retain Dr. Miller again to offer an opinion on his mental state at the time that he wrote the threatening letters, as this was not the focus of his first evaluation. The district court denied this request, stating that Dr. Miller's initial report included enough information about Mr. Rendelman's mental state at the time of his writing the letters. The government moved in limine to curtail the evidence that Mr. Rendelman could present at trial about his mental state, arguing that psychological evaluations from past prosecutions should not be permitted because none established that he had a mental disease that would affect his culpability.
At trial in federal district court, Mr. Rendelman testified that he wrote the letters to protest being raped and beaten in prison and that he had wanted to demonstrate that incarceration does not rehabilitate or deter offenders. He indicated he was compelled by his conscience to write the letters because he would otherwise feel complicit in the sexual assaults that occur in prison. The jury returned a verdict of guilty on all counts. He appealed to the Seventh Circuit Court of Appeals, arguing that the district court abused its discretion by denying a second evaluation by Dr. Miller and excluding evidence obtained during mental health evaluations conducted during prior prosecutions, both of which he believed would demonstrate that he could not stop himself from writing the letters.
The Seventh Circuit Court of Appeals held that the district court did not abuse its discretion when it denied Mr. Rendelman's request for an additional evaluation. The court reasoned that his reported inability to stop writing letters was not a valid defense for culpability, as the evidence of mental condition is relevant to culpability only if it bears directly on sanity or mens rea. Citing United States v. Worrell, 313 F.3d 867 (4th Cir. 2002), and United States v. Cameron, 907 F.2d 1051 (11th Cir. 1990), the court ruled that a lack of capacity to control behavior is not a relevant consideration under the federal insanity standard (18 U.S.C. § 17 (2006)), which considers mental disease or mental defect as an excuse only if an individual does not appreciate the nature or wrongfulness of his actions. The court similarly noted that because evidence of unconscious behavior is irrelevant to the question of intent (United States v. Pohlot, 827 F.2d 889 (3d Cir. 1987)), Mr. Rendelman's argument that he wrote the letters because of an unconscious compulsion, to which Dr. Miller testified during sentencing, was not a plausible defense to culpability. The court reasoned that it was appropriate for Mr. Rendelman to present evidence of compulsion at sentencing, which was permitted. The federal sentencing guidelines (U.S.S.G. § 5K2.13) allow for a downward departure if a defendant has a significantly reduced mental capacity that substantially contributes to the commission of the offense.
The court further rejected Mr. Rendelman's argument that he should have been granted an additional evaluation because the prior evaluations authored by Dr. Miller and Dr. Pietz were related to his refusal to provide writing exemplars, rather than his mental state at the time he wrote the threatening letters. The court reasoned that although the focus of Dr. Miller's evaluation was related to the contempt charge, it did address Mr. Rendelman's mental state at the time he wrote the letters. Specifically, Dr. Miller reported that Mr. Rendelman was in control and fully aware when he wrote the letters. He further noted that Mr. Rendelman denied having obsessions or compulsions relating to his letter writing.
Finally, the court rejected Mr. Rendelman's argument that the district court abused its discretion by excluding the evidence from psychological evaluations conducted for the purposes of prior prosecutions. He asserted that this evidence was relevant because it would show he lacked mens rea as a result of his compulsion to write the letters. The court asserted that the evidence was properly excluded because, as previously discussed, his reported compulsion was not a valid defense for culpability.
In the present case, Mr. Rendelman argued that he was not culpable for his actions, because he lacked the capacity to control his behavior as a result of an unconscious impulse to write letters. The court of appeals rejected his argument, relying on the legal statute addressing insanity as it pertains to criminal responsibility at the time of the offense (18 U.S.C. § 17 (2006)). The federal insanity statute is specifically limited to an appreciation of the nature and quality or wrongfulness of one's actions. According to 18 U.S.C. § 17 (2006), “it is an affirmative defense under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” The capacity to control one's actions is not relevant to one's sanity at the time of a crime, and unconscious influence on behavior is not relevant to intent. The court properly excluded evidence about volitional control (e.g., a second psychological evaluation or psychological evaluations from prior prosecutions), as it was not necessary or legally relevant to a culpability defense. However, evidence about capacity to control behavior is a relevant consideration at sentencing, which was properly allowed in the present case. Such evidence may provide a basis for a downward departure under federal sentencing guidelines.
Of note, although a lack of volitional control is not a valid defense for culpability according to federal statute, some states include an element of volitional control within their standard definition of insanity. For example, some jurisdictions have adopted the test for insanity proposed by the America Law Institute Model Penal Code (1985), which includes consideration of an individual's capacity to conform his or her conduct to the requirements of the law.


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FindACase | Eagle SPE NV1 Inc. v. Southern Highlands Development Corp.
Eagle SPE NV1 Inc. v. Southern Highlands Development Corp.
SOUTHERN HIGHLANDS DEVELOPMENT CORP., et al., Defendants.
This case involves application of a statutory provision formerly codified at NRS § 40.459(1)(c) (“Subsection (1)(c)”), which placed additional limitations upon the right of a successor-creditor to recover on a deficiency. The Court granted summary judgment in favor of Defendants, finding that: Subsection (1)(c) applies to Eagle's deficiency claim (ECF No. 66); and Eagle failed to offer specific evidence to show that the amount of consideration it paid was more than the sale price of the Property (ECF No. 146).Because the Court found that Eagle was not entitled to a deficiency, the Court denied Eagle's motion for summary judgment on its two remaining claims for breach of the Note and of the Guarantee. Defendants now move for an award of attorney's fees and costs (“Motion”). (ECF No. 149.) Plaintiff opposes (ECF No. 156) and Defendants have replied (ECF No. 159). For the reasons discussed herein, the Motion is denied.
Defendants' Motion relies on the fees provision in the Loan Agreement. (ECF No. 149 at 8-10.) Plaintiff counters that it did not bring any claim under the Loan Agreement and that its claims for breach of contract are based on the repayment provisions of the Note and the Guarantee. (ECF No. 156 at 8-11.) The Court agrees with Plaintiff.
Nevada law permits attorneys' fees to be awarded if authorized by statute, rule or contract. Frank Settelmeyer & Sons, Inc. v. Smith & Hammer, Ltd., 197 P.3d 1051, 1059 (Nev. 2008). In determining whether a contractual provision allows for the recovery of fees, the court should apply the general rules governing contract interpretation. See Debron v. Bunch, 215 P.3d 35, 37 (Nev. 2009). The Nevada Supreme Court has offered this caution: “[w]here a contract provision purports to allow attorney's fees in an action arising out of the terms of the instrument, we will not construe the provision to have broader application.” Id. (quoting Campbell v. Nocilla, 692 P.2d 491, 493 (Nev. 1985)).
Defendants argue that the Loan Agreement's fees provision permits the Court to award fees to Defendants as the prevailing parties. (ECF No 149 at 8-10.) However, Plaintiff's two breach of contract claims involved the Note and the Guarantee (ECF No. 67 at 6), not the Loan Agreement. The first claim for relief alleges that “[t]he Borrowers defaulted on its obligations under the Note by failing to pay all amounts due thereunder when it matured on November 12, 2009.” (Id.) The second claim for relief alleges that the Guarantors have similarly failed to fulfill their obligations under the Guarantee. (Id.) As Plaintiff correctly pointed out, the Note and the Guarantee do not contain a fees provision awarding fees to Defendants in the event they prevail.
In their reply, Defendants argue that even if the Court looks beyond the Loan Agreement, Defendants are entitled to fees under the Note, the Deed of Trust and the Guarantee because these agreements' one-sided fees provisions “must be read as reciprocal as a matter of law.” (ECF No. 157 at 6.) However, there are two problems with this argument.
Defendants cite to an unpublished Nevada Supreme Court decision, Solky v. Smith, No. 60008, 2013 WL 7155016 (Nev. Oct. 31, 2013), but the court in that case did not address the defendants' argument that one of the agreements at issue “is one-sided and fails for lack of mutuality of the remedy because only [the plaintiffs] could recover attorney fees.” Id. at *3 n. 3. Instead, the court reasoned that the second agreement “contained the proper mutuality of remedy.” Id. The court affirmed the district court's decision to award fees to the defendants “because the plain language of both [agreements] provided that [the defendants] were entitled to attorney fees.” Id. at *3. As support, the court cited to Rowland v. Lepire, 662 P.2d 1332, 1337 (Nev. 1983). Solky, 2013 WL 7155016 at *3 n. 3. In Rowland, the court found that the district court's conclusion that the prevailing parties were entitled to fees under a theory of mutuality of remedy where the governing agreement contained only a one-sided fee provision to lack “legal or factual support.” Rowland, 662 P.2d at 1337. Thus, Solky and in turn Rowland do not support Defendants' argument that the fees provisions in the Note and the Guarantee should be construed as reciprocal to entitle Defendants to recover their attorney's fees. Defendants' proposed reading also runs counter to the general rule of contract interpretation-that the court should not construe contractual fees provision “to have broader application.” See Debron, 215 P.3d at 37.
The fees provisions in the Note and Guarantee do not provide for fees to be awarded to the Borrowers or the Guarantors in the event they prevail in a dispute. Accordingly, Defendants cannot rely on these agreements to support their request for fees.


Happy Monday! Hope you’re not late for a very important date! According to a recent decision out of the Fifth Circuit Court of Appeals, Moss v. Unum Group, a claimant’s failure to timely submit a written appeal of a denial of benefits results in a dismissal with prejudice. If only courts would exact such a harsh penalty against administrators who were late in rendering claim and appeals decisions. But such equity in ERISAland would really be going down the rabbit hole….
District court correctly dismissed lawsuit with prejudice where the claimant did not, and could not, timely submit a written administrative appeal. Moss v. Unum Grp., No. 15-30341, __F.3d___, 2016 WL 424638 (5th Cir. Feb. 3, 2016) (Before STEWART, Chief Judge, and REAVLEY and DAVIS, Circuit Judges). Plaintiff-Appellant alleged that Defendants-Appellees (collectively “Unum”) unlawfully denied his claim for total disability benefits under two ERISA-governed insurance policies. The district court dismissed Plaintiff’s claims with prejudice for failure to exhaust administrative remedies and the Fifth Circuit affirmed. Unum denied Plaintiff’s claim under the policies on June 5, 2009 and gave him 180 days to appeal. On June 30, 2009, Plaintiff’s attorney called a Unum representative and verbally informed him that he disagreed with Unum’s decision. A few weeks later, Plaintiff’s attorney mailed copies of Plaintiff’s paychecks to Unum, but he never filed a formal written appeal. On December 10, 2009, Unum sent Plaintiff another letter reiterating its denial of his claim for benefits and giving him 180 days to file a written administrative appeal. Plaintiff did not file an appeal, but instead, filed a lawsuit against Unum, in which he argued that attempting to exhaust his administrative remedies would be futile. The district court dismissed Plaintiff’s claim without prejudice, at which point Plaintiff asked Unum to allow him to file an administrative appeal. Unum declined to do so because the appeal request was far beyond the 180-day deadline. Plaintiff filed suit again but this time the district court dismissed his case with prejudice since Plaintiff could not demonstrate that he would be able to timely exhaust his administrative remedies in the future. The court rejected Plaintiff’s arguments for why the court should excuse his failure to appeal. First, Plaintiff relied on the following statement from Unum’s December 10, 2009 denial letter: “Unless there are special circumstances, the administrative appeal process must be completed before you begin any legal action regarding your claim.” Plaintiff claimed that Unum’s alleged bad faith in denying his claim for disability benefits constitutes a “special circumstance” that excuses him from his obligation to file an administrative appeal. And, because the term “special circumstances,” is vague, it should be construed in his favor. The court agreed with the district court that if a claimant could avoid the exhaustion requirement simply by alleging in his complaint that the plan administrator denied his claim in bad faith, then no claimant would ever be required to exhaust administrative remedies before filing suit. Adopting Plaintiff’s interpretation would render the administrative appeal requirement completely toothless. The court held that Plaintiff was required to file a written administrative appeal within 180 days. The court rejected Plaintiff’s next argument that even though he did not file a formal written appeal, he “effectively exhausted” his administrative remedies by taking informal actions that fulfilled “the underlying purpose of the exhaustion requirement.” The court found that informal attempts to substitute the formal claims procedure would frustrate the primary purposes of the exhaustion requirement. Lastly, Plaintiff argued that Louisiana Civil Code art. 3462 tolled the 180-day deadline for filing an administrative appeal when Plaintiff filed his first lawsuit and that it began to run again when the district court dismissed his lawsuit without prejudice. The court found this argument meritless since ERISA requires the claimant to exhaust his administrative remedies within the time period specified in the plan, which in this case was 180 days after denial. At least one other court in this Circuit rejected an identical tolling argument and the court found the reasoning persuasive. Because Plaintiff did not timely file an administrative appeal, the district court correctly dismissed his claim.
Plaintiff entitled to attorneys’ fees after securing remand to LTD insurer. Kaiser v. United of Omaha Life Ins. Co., No. 14-CV-762-WMC, 2016 WL 379814 (W.D. Wis. Jan. 29, 2016) (Judge William M. Conley). The court found Plaintiff eligible for an award of attorneys’ fees for winning a remand to the insurer for determination of disability under the terms of a long-term disability plan. Applying Hardt v. Reliance Standard Life Insurance Company, 560 U.S. 242 (2010) and the “substantial justification” test and the five-factor test in Raybourne v. Cigna Life Ins. Co. of New York, 700 F.3d 1076, 1089 (7th Cir. 2012), the court found that its decision finding that Defendants violated ERISA by acting arbitrarily and capriciously, and ordering remand to the Plan Administrator for further review, was all that Plaintiff could achieve in this court. Additionally, Defendants’ interpretation of the pre-existing condition clause was at odds with fairly settled Seventh Circuit case law, and rendered their posture during the case as a whole not substantially justified. The court found an award of attorneys’ fees and costs appropriate under 29 U.S.C. § 1132(g)(1) and directed Plaintiff to submit its fee request.
Court awards most of attorneys’ fees requested by prevailing LTD plaintiff. Robertson v. Standard Ins. Co., No. 3:14-CV-01572-HZ, 2016 WL 406343 (D. Or. Jan. 31, 2016) (Judge Hernandez). Plaintiff previously prevailed on her LTD and life insurance waiver-of-premium claims. She then moved for attorneys’ fees totaling $73,640.25 and costs totaling $1,620.33. The court granted the motion in part and awarded $43,526 in fees and $420.08 in costs. The court reduced the requested hours by time spent on an unsuccessful motion to compel, some “duplicative” time spent by local counsel, time spent on clerical tasks, time described by “vague” time entries, and time spent on the fee petition for failing to follow Local Rule 7-1’s requirement to meet and confer in good faith. The court applied an hourly rate of $288.88 for an attorney who graduated from law school in 2003 and is based in Kentucky and a rate of $336.34 for an Oregon attorney with 22-23 years of ERISA experience. With respect to expenses, the court declined to award “copy/printing” fees where information about the copy charges was not provided. The court also declined to award $168.75 in scanning expenses, the $400 filing fee for Plaintiff’s action in Kentucky that she voluntarily dismissed, and $100 for a pro hac vice application.
Denial of LTD benefits for claimant with Lyme disease is not an abuse of discretion, where denial supported by opinions of three infectious disease specialists. Ryan v. PNC Fin. Servs. Grp., Inc., No. CV 14-1048, 2016 WL 374273 (W.D. Pa. Feb. 1, 2016) (Judge Nora Barry Fischer). The court granted summary judgment in favor of the defendant, a self-funded welfare benefit plan providing long-term disability benefits administered by Liberty Life Assurance Company of Boston. Plaintiff claimed disability as a result of symptoms related to Lyme disease. The court found that three reviewing infectious disease specialists interpreted Plaintiff’s IGG/IGM Western Blot test results to be inconclusive, at best, for Lyme disease because the tests lack a positive result on the IGG portion of the test. Further, the reviewing physicians all generally noted that for individuals suffering illness for over a month, a negative IGG2 in combination with a positive IGM tends to mean that the IGM is a false-positive. Additionally, the physicians found that the physical and cognitive ailments complained of by Plaintiff were non-specific to Lyme disease. The court found that Defendant’s decision to rely on three reviewing physicians over Plaintiff’s treating doctor was not an abuse of discretion. The court found that Plaintiff had ample time to supplement her medical record during the appeals process, and was informed of the exact nature of testing for which Liberty was looking when reviewing her claims. Liberty explicitly stated that it would be helpful if Plaintiff provided evidence of psychological consultations, neuropsychological testing, and formal occupational assessments. However, Plaintiff did not submit neuropsychological testing results nor did she explain her failure for doing so to the court.
Abuse of discretion to deny LTD claim on basis of pre-existing condition exclusion. Kaiser v. United of Omaha Life Ins. Co., No. 14-CV-762-WMC, 2016 WL 379814 (W.D. Wis. Jan. 29, 2016) (Judge William M. Conley). Plaintiff filed suit seeking long-term disability benefits for his deceased wife’s disability caused by Stage IV lung cancer. Defendants denied benefits on the basis that the disability fell within the preexisting condition coverage exception of the long-term disability insurance plan. The court granted summary judgment to Plaintiff, finding that Defendants acted arbitrarily and capriciously in invoking the pre-existing condition provision to deny benefits. During the “look-back” period, Plaintiff’s wife injured her shoulder and received a diagnosis and treatment consistent with rotator cuff impingement. There was no concern or suspicious of cancer of metastasis from a primary lung cancer. After the look-back period, Plaintiff’s wife was diagnosed with metastatic cancer and filed for long-term disability less than a month after the diagnosis. The court found that the relevant inquiry is whether a doctor’s visit for shoulder pain, prescription of pain medication, subsequent referral to physical therapy, and one physical therapy session were “for” the wife’s cancer. The court found that medical care was not for the cancer. Further, the fact that Plaintiff’s wife was eventually diagnosed with cancer, and that her shoulder pain “in retrospect” was caused by her cancer, is not material to a determination of whether her medical care providers suspected cancer at the time of treatment. The court remanded the claim to determine the question of disability.
Court remands to MetLife consideration of “any occupation” benefits where MetLife terminated LTD benefits nine days short of “any occupation” period, mishandled the claim, and later admitted liability for “own occupation” period. Hantakas v. Metro. Life Ins. Co., No. 214CV00235TLNKJN, 2016 WL 374562 (E.D. Cal. Feb. 1, 2016) (Judge Troy L. Nunley). In this long-term disability dispute, Plaintiff was employed by Kaiser Permanente as Assistant Director of Imaging in the Radiology Department of Kaiser Permanente Hayward, until May 26, 2010, when severe pain and sciatica rendered her unable to perform the material duties of her job. MetLife paid Plaintiff LTD benefits until nine days short of the full 24-month “own occupation” period, relying on a file review conducted by MetLife Medical Director, Dr. Veena Vani, who claimed that Plaintiff had “no objective exam findings to show ongoing impairment to preclude sedentary work.” Plaintiff, through her attorney, administratively appealed MetLife’s termination of benefits. On appeal, MetLife obtained a file review from Dr. Robert Lee Waltrip and sent it to Plaintiff’s physicians. When MetLife did not make a timely decision, Plaintiff filed suit. MetLife then decided that it would pay Plaintiff the 9 days left in the own occupation period and agreed to pay Plaintiff’s attorney $13,500 in fees. MetLife requested that the court remand the claim to MetLife to make a determination about Plaintiff’s eligibility for benefits under the “any occupation” definition of Total Disability under the Plan. Plaintiff opposed the remand. The court granted MetLife’s request, agreeing with MetLife that no decision has been reached about Plaintiff’s eligibility for benefits under the “any occupation” definition. All communications between MetLife and Plaintiff have been about her eligibility for benefits during the initial 24 month “own occupation” period. The court rejected Plaintiff’s argument that MetLife’s determination that Plaintiff cannot perform her own “sedentary” occupation is exactly the same as being unable to perform “any occupation.” Although the court agreed that MetLife failed to follow appropriate claim procedures as to Plaintiff’s appeal of the denial of her “own occupation” benefits, the failure to follow ERISA claim procedures for the initial appeal does not impute to MetLife’s decision under the “any occupation” standard. The court also rejected Plaintiff’s argument that the Social Security Administration’s decision that Plaintiff is disabled requires MetLife to approve her “any occupation” claim. Because MetLife never considered Plaintiff’s eligibility under the more stringent “any occupation” standard for extended benefits, the court found that there is nothing for it to review until MetLife makes a decision. Accordingly, the court remanded the matter to MetLife to decide Plaintiff’s eligibility for “any occupation” benefits. The court acknowledged the mishandling of Plaintiff’s claim and required MetLife to file a realistic and expedient timeline for their decision of Plaintiff’s LTD clam. The court decided to stay the case pending MetLife’s decision in order to prevent any further prejudice to Plaintiff.
Denial of pension benefits an abuse of discretion where administrator did not adequately investigate claim. Gurasich v. IBM Ret. Plan, No. 14-CV-02911-DMR, 2016 WL 362399 (N.D. Cal. Jan. 29, 2016) (Magistrate Judge Donna M. Ryu). The parties’ central disagreement is whether Plaintiff’s right to pension benefits terminated when she stopped working for IBM. Defendants took the position that her pension rights terminated because she transferred employment from IBM to another company as a result of the sale of the IBM business unit where she had been working. Defendants contend that Plaintiff’s IBM Plan assets were transferred to her subsequent employer’s benefit plan as part of that transaction. On the contrary, Plaintiff’s position is that she did not end her employment with IBM as part of an IBM asset sale; instead, she voluntarily quit IBM to take a job with Siemens, which happened to be the same company that eventually ended up purchasing her former IBM business unit. Plaintiff contended that if the IBM Plan transferred her pension assets to another employer, it had no right to do so, and she is entitled to pension benefits as evidenced in the many notices she received over the years until she made a claim for benefits. The court granted each parties motion in part. On the benefits claim, the court found that the Plan Administrator abused its discretion by denying Plaintiff’s claim based on an inference drawn from another employer’s records, rather than reviewing records within its own control. In reaching this conclusion, the court gave some weight to the structural conflict, as the Plan Administrator failed to adequately investigate the claim even though Plaintiff brought concrete and undisputed factual discrepancies to its attention. The court rejected Defendants’ argument that the Plan Administrator had no affirmative duty to investigate a plaintiff’s claim for benefits under the Plan. On Plaintiff’s second claim for breach of fiduciary duties and her third claim for equitable relief, Plaintiff conceded that because the court has awarded her benefits under the IBM Plan in her first cause of action, she is not entitled to further relief under her second and third claims. As such, the court did not reach these issues.
Employment agreement providing for severance benefits creates an ERISA plan. Zgrablich v. Cardone Industries, Inc., No. CV 15-4665, 2016 WL 427360 (E.D. Pa. Feb. 3, 2016) (Judge R. Barclay Surrick). The court found that an employment agreement providing for severance benefits is governed by ERISA. The court found that Plaintiff’s eligibility to collect the severance benefits as set forth in the Agreement turns on whether he was terminated with or without cause-a standard requiring the exercise of judgment on a case-by-case basis. Standing alone, the court found this fact strong proof that the plan at issue involves a separate determination of each individual’s eligibility for benefits and is therefore governed by ERISA. In addition, the Agreement has language demonstrating the ongoing need for administration of the plan. For example, Cardone Industries is not obligated to provide Plaintiff with medical coverage if he obtains comparable substitute coverage from another employer. And, all severance and medical benefits provided by the Agreement terminate in the event that Plaintiff breaches any of the restrictions or provisions in the Agreement’s “Non-Compete; Non-Solicitation clause.” The court found that the Agreement creates an ERISA benefits plan even through it is a “one-person employment agreement” since the Agreement itself recognizes that other senior company executives made similar agreements.
United’s Early Out Benefit Plan for Certain Association of Flight Attendant-Represented Employees is an ERISA plan. Scarber v. United Airlines, Inc., No. 15 C 9147, 2016 WL 362377 (N.D. Ill. Jan. 29, 2016) (Judge Harry D. Leinenweber). The court denied Plaintiff’s motion to remand his lawsuit seeking benefits under United’s Early Out Benefit Plan for Certain Association of Flight Attendant-Represented Employees. The Plan enabled certain flight attendants to receive lump sum payments of up to $100,000 upon their separation from the airline. Plaintiff challenged Defendants’ claim that the Plan was an ERISA plan such that his lawsuit is preempted. The court agreed with Defendants that the Plan at issue here is different than the Plan discussed in the Supreme Court’s decision in Fort Halifax. First, the Plan includes administrative procedures to determine claimant eligibility and vests the plan administrator with discretion to “limit participation and determine exit dates.” Second, the Plan provides a review procedure in the event a claimant is denied benefits. Third, a payment amount cannot be calculated until a claimant’s exit date is determined. Finally, the Plan provides for additional benefits beyond the lump sum payment, including continued health benefits and travel passes. The court found that these features taken together require ongoing administration and is an employee benefit plan subject to ERISA.
Court has personal jurisdiction over third-party complainant with no connection to the forum state due to ERISA’s nationwide service of process. Ng v. Prudential Insurance Company of America, No. CV 13-11317-TSH, 2016 WL 424956 (D. Mass. Feb. 3, 2016) (Judge Timothy S. Hillman). The court denied the third-party complainant’s motion to dismiss for lack of personal jurisdiction. The movant was married to the decedent at the time of his death and was originally named the decedent’s beneficiary under a life insurance plan insured by Prudential. The decedent’s children brought suit against Prudential over the life insurance proceeds. Prudential determined that the movant is the proper beneficiary. The movant has lived in New York her entire life. From 2010 through 2013, the movant, who suffers from mental health issues, lived in several different psychiatric facilities in New York. There was a time when her location was unknown to family and friends and she was ultimately located and hospitalized at a psychiatric hospital in Brentwood, New York. From there she was moved to an outpatient facility for several months until March 11, 2013, when she was placed in the mental health group home where she currently resides. The court found that ERISA provides for nationwide service of process so that as long as the movant has the requisite “minimum contacts” with the United States, the court has personal jurisdiction over her. The court did note that there is an element of unfairness where an individual has no contacts with the forum state relating to the lawsuit but that the court did not expect the movant would have to travel from New York to Massachusetts either for pre-trial discovery, or to attend a trial, should it prove necessary.
ERISA claims dismissed where laboratories lack standing to assert claims under self-funded Cigna plans and failed to exhaust administrative remedies. Biohealth Medical Laboratory, Inc., et al. v. Connecticut General Life Insurance Company, et al., No. 1:15-CV-23075-KMM, 2016 WL 375012 (S.D. Fla. Feb. 1, 2016) (Judge K. Michael Moore). This matter involves a dispute arising out of Cigna’s denial of claims for toxicology testing performed by the plaintiff Laboratories. Cigna is a global health service company that serves as the claims administrator for various employer-sponsored health and welfare benefit plans. The Laboratories are out-of-network healthcare providers that routinely receive requests for testing services from Cigna’s insureds. Cigna moved to dismiss the ERISA and state law claims on several grounds. Cigna contended that the Laboratories lack broad derivative standing and are barred from bringing fiduciary duty claims and claims related to self-funded plans under the express language of the Assignment. The court found that the Laboratories’ standing by assignment theory for self-funded plans does not survive the express language of the Assignment. The Laboratories have standing to assert claims for breach of fiduciary duty but lack standing to assert claims under the self-funded Cigna plans and the court dismissed those claims without prejudice. Cigna also asserted that the Laboratories have failed to exhaust their administrative remedies. The court found that in the Complaint and the parties’ arguments that the Laboratories have not alleged the exhaustion of administrative remedies. Instead, they allege that Cigna ignored their payment demands and failed to provide them with an adequate administrative remedy. The court found that the Laboratories’ “bald assertions” of futility undercut the exacting requirement to exhaust administrative remedies. Because the Laboratories failed to make a “clear and positive showing” that proper assertion of their claims would be futile or offer more than “naked assertions devoid of further factual enhancement” that the Laboratories were denied meaningful access to administrative review of their claims, the court dismissed the ERISA benefit claims without prejudice so that the Laboratories may pursue their administrative remedies.
Dismissal of pro se provider’s complaint seeking unpaid benefits affirmed. Griffin v. Habitat for Humanity Int’l, Inc., No. 15-13516, __Fed.Appx.___, 2016 WL 385893 (11th Cir. Feb. 2, 2016) (Before HULL, MARCUS and JILL PRYOR, Circuit Judges). The court affirmed the dismissal of the pro se Appellant’s complaint seeking approximately $928 in unpaid benefits, at least $64,000 in penalties, and declaratory relief related to treatment she provided as an out-of-network provider for a participant in Defendant’s health plan. The court concluded that even though the insured assigned Plan benefits to Appellant, the assignment is void under the Plan’s anti-assignment provision. The court found that the anti-assignment provision applied even though BCBSGA failed to notify Appellant of the provision after she asked whether the Plan contained such a term. The court disagreed that BCBSGA is equitably estopped from relying on the anti-assignment term or has waived it.
Lawsuit challenging vesting requirements of deferred stock incentive plan filed 27 years too late. Bond v. Marriott Int’l, Inc., No. 15-1160, __Fed.Appx.___, 2016 WL 360801 (4th Cir. Jan. 29, 2016) (Before SHEDD, DIAZ, and HARRIS, Circuit Judges). In this unpublished PER CURIAM opinion, the Fourth Circuit found that the Appellant’s claims challenging the vesting requirements of Marriott’s Deferred Stock Incentive Plan are barred by the statute of limitations. The court found that Marriott informed the Appellants in 1978 that the Plan was exempt from ERISA’s vesting requirements but that the Appellants then waited more than 30 years to file suit. Here, the court found that Marriott clearly repudiated any right the Appellants had to the vesting requirements of ERISA in 1978 and the Appellants’ ERISA claims are untimely under Maryland’s three-year statute of limitations for contract actions. The court reversed the district court’s grant of summary judgment to the Appellants on that ground and granted summary judgment to Marriott. Because this conclusion is dispositive, the court did not reach the question of whether Marriott’s Plan was a valid top hat plan, and vacated the district court’s later order granting summary judgment to Marriott.
Statutory penalties awarded against plan administrator for failing to produce required documents pertaining to 401(k) plan. Askew v. R.L. Reppert, Inc., et al., No. 11-CV-04003, 2016 WL 447060 (E.D. Pa. Feb. 5, 2016) (Judge James Knoll Gardner). Plaintiff filed a six-count Class Action Complaint. Count One alleges violations of ERISA document production requirements and seeks statutory penalties pursuant to 29 U.S.C. § 1132(c)(2) against Reppert, Inc. as plan administrator. The court granted Plaintiff’s motion for partial summary judgment and dismissal in part on Count One because it concluded that defendant Reppert, Inc. failed to produce any required documents pertaining to the 401(k) Plan within thirty days of Plaintiff’s written request and because defendant failed to produce a custodial agreement with Nationwide Trust Company, FSB. The court denied summary judgment on Count One in part because it found that (1) defendant Reppert, Inc. was not obligated to produce any documents regarding the Davis Bacon Plan; (2) defendant Reppert, Inc. fulfilled any document production obligations it had with respect to trust agreements, periodic benefits statements, notice of vested deferred benefits, disclosure of financial reports, Section 404(c) disclosures, notice of qualified default investment, notice of availability of investment advice, and depository documents for the 401(k) Plan; (3) Plaintiff has not provided sufficient evidence to demonstrate entitlement to any custodial agreements other than the Nationwide Trust Company agreement; and (4) there are genuine disputes of material fact relating to what, if any, penalties should be imposed on defendant for such failure.
Master Business Agreement referenced in claim and appeal denial letters is not a disclosure required by Section 1024(b)(4). Gurasich v. IBM Ret. Plan, No. 14-CV-02911-DMR, 2016 WL 362399 (N.D. Cal. Jan. 29, 2016) (Magistrate Judge Donna M. Ryu). Plaintiff sought Section 502(c)(1)(B) penalties against Defendants for not producing the Master Business Agreement (“MBA”), which is the May 2, 1992 agreement between IBM, Siemens Communication Systems, Inc., and Siemens Aktiengesellschaft that is referenced in Appendix C of the 1994 version of the IBM Plan. The Plan Administrator referenced the MBA in the initial denial letter as well as the denial of Plaintiff’s appeal. Plaintiff argued that Defendants were required to produce the MBA during the administration of her claim pursuant to 29 U.S.C. § 1024(b)(4) and Defendants’ failure to produce the MBA resulted in a violation of 29 C.F.R. § 2560.503-1, which is an implementing regulation for 29 U.S.C. § 1133. The court denied Plaintiff’s motion for summary judgment, finding that IBM was not required to produce the MBA under section 1024(b)(4). The court noted that the Ninth Circuit narrowly construes the disclosures required by section 1024(b)(4) and Plaintiff put forward no evidence that the MBA is a contract, or other instrument under which the IBM Plan is established or operated, provides participants with information about the plan and benefits, or otherwise qualifies as an instrument similar in nature to the documents specifically enumerated in the statute. The court also determined that a violation of 29 C.F.R. § 2560.503-1(h)(2)(iii), which requires that a benefits plan provide a claimant copies of all documents, records, and other information relevant to the claimant’s claim for benefits, does not trigger liability under 29 U.S.C. § 1132(c)(1)(B).


Estate of Manuel Diaz; Genevieve Huizar, an individual, Plaintiffs–Appellants, v. City of Anaheim, a California municipal entity; Nick Bennallack, Officer, Defendants–Appellees.
Before: Marsha S. Berzon and John B. Owens, Circuit Judges, and Algenon L. Marbley,** District Judge. Dale K. Galipo (argued) and Melanie T. Partow, Law Offices of Dale K. Galipo, Woodland Hills, California; Angel Carrazco, Jr., Carrazco Law, A.P.C., Tustin, California; Paul L. Hoffman, Schonbrun Desimone Seplow Harris & Hoffman, LLP, Venice, California; Humberto Guizar, Humberto Guizar Law Offices, Montebello, California; for Plaintiffs–Appellants. Moses W. Johnson, IV (argued), Assistant City Attorney, Anaheim, California; Steven J. Rothans and Jill Williams, Carpenter, Rothans & Dumont, Los Angeles, California; for Defendants–Appellants.
Anaheim Police Officer Nicholas Bennallack shot and killed Manuel Diaz during a mid-day encounter in July 2012. Diaz's estate and mother (“Plaintiffs”) sued Officer Bennallack and the City of Anaheim (“Defendants”) for federal civil rights violations and proceeded to a jury trial, but lost. Plaintiffs argue they should receive a new trial due to inflammatory evidence introduced by Defendants that had no relevance to the key issue in the case—whether Officer Bennallack acted within the law when he shot Diaz. Because the district court abused its discretion in failing to bifurcate liability from compensatory damages—thus admitting this evidence at the liability phase of the trial—and the error was harmful, we reverse and remand.
While on routine patrol in gang territory the afternoon of July 21, 2012, Officers Bennallack and Heitmann drove their unmarked black Crown Victoria into an alley off of Anna Drive in Anaheim, California. They were not responding to a call or plea for help, though Bennallack had arrested a man for gun possession there two weeks prior.
In the alley, Bennallack saw Diaz and another man standing near a parked vehicle, with a third man inside. Bennallack neither recognized Diaz nor saw anything in his hands. But, Bennallack thought that criminal activity was afoot, and that Diaz was a gang member, based on his experience in the area and how Diaz was dressed.
Shortly after the officers drove into the alley, and before they said anything to Diaz, Diaz ran away. The officers pursued on foot. Officer Heitmann said he saw Diaz clutching an object near his waist before he took off, but Bennallack—the shooter—did not. While initially hoping to have a consensual conversation with Diaz, once the chase began Bennallack intended to arrest him for the misdemeanor offense of resisting, obstructing, or delaying a police officer.
The officers yelled commands such as “stop,” “get on the ground,” and “show me your hands,” but Diaz kept running, and eventually went through a gate and into a courtyard. Bennallack was roughly five to ten feet behind Diaz during the chase. Bennallack testified that at one point, Diaz possibly could have exited through a gate to the street, but did not.1 The officers took this as an escalation of danger, fearing that Diaz was hoping to lure them into an enclosed space to shoot them.
Diaz then slowed down. Witnesses disagreed about his movements at this point. Bennallack said Diaz turned to his left, while Heitmann said he turned to his right. One witness did not see him turn or make any threatening movements, while another saw Diaz turn in a non-threatening manner when the police told him to get on the ground.
As Diaz started to turn, Bennallack claimed to see a black cloth object going over a fence close to Diaz. Bennallack said that he believed Diaz had a gun in a “low-ready” position in front of his body, ready to fire. According to Bennallack, as Diaz turned and Bennallack saw the object in the air, he fired twice. When Bennallack shot Diaz, he could not see any part of his arms or hands. The shots occurred within one to two seconds after Diaz started to slow down; Bennallack made no lethal force warning. The first bullet entered Diaz's right buttock and was lodged in his left thigh. The second bullet entered the right side of Diaz's head, just above and behind his right ear, and exited the left side of his head near his left ear. Diaz was handcuffed and searched. He died shortly thereafter at a nearby hospital. Officers found a black cell phone and narcotics pipe nearby. No firearm was recovered from the scene.
Diaz's estate and his mother, Genevieve Huizar, brought suit against the City of Anaheim and Officer Bennallack.2 Huizar sought only non-economic damages, i.e., her loss of Diaz's love, companionship, comfort, care, assistance, protection, affection, society, and moral support.
The parties filed a number of motions in limine, some of which are relevant on appeal.
Gang Affiliation: The district court ruled that evidence that Anna Drive was a known gang area was relevant to liability, but that Diaz's gang affiliation was relevant only to damages—the theory being that his gang membership undermined the strength of his mother's love for him and their relationship. The court excluded photographs of his gang tattoos, but noted it would revisit this issue if Diaz's mother testified with respect to damages that she had no knowledge of his gang affiliation.
Photographs: The court in principle agreed with Defendants that photographic evidence from Diaz's cell phone and Facebook page that Diaz possessed a weapon prior to the incident was relevant to the excessive force analysis under Boyd v. City & County of San Francisco, 576 F.3d 938, 943–44 (9th Cir. 2009). However, the court indicated it would likely exclude as irrelevant photos of gang activities and stacks of money.
Drug Usage: The court ruled that because Defendants did not offer evidence that Bennallack observed Diaz behaving erratically during the incident, toxicology evidence of methamphetamine use was not relevant to § 1983 liability. Defendants also asserted that the toxicology evidence was relevant to damages, but the court's written order rejected this theory.
Gang Expert: The court permitted Daniel Gonzalez, a gang expert, to opine on Diaz's gang membership, but only as relevant to damages. The court noted that his gang affiliation had limited relevance to the amount of damages, and any testimony should be brief. The court also stated that if the parties agreed to stipulate to Diaz's gang membership, it would reconsider its decision to allow Gonzalez to testify. The court specifically excluded as unduly prejudicial testimony about gang activities in general; that Anna Drive was part of the gang's turf (as Bennallack would testify to this and it was undisputed); and any of Diaz's specific gang activities.
Plaintiffs also moved to bifurcate the liability phase from the damages phase of the trial, to avoid the risk that prejudicial information unknown to Officer Bennallack at the time of the shooting—such as Diaz's gang membership, related photos, and drug usage—would taint the jury's consideration of Bennallack's use of deadly force. The district court granted this motion in part, severing punitive damages from liability and compensatory damages. The district court briefly explained that neither prejudice nor the complexity of the issues warranted bifurcating liability from compensatory damages, and that limiting instructions would cure any potential prejudice. The record is unclear as to why the court bifurcated punitive damages but not compensatory damages.
After a six-day trial, the jury deliberated for less than two hours before returning a verdict that Officer Bennallack did not use excessive or unreasonable force.4 However, during trial—and over Plaintiffs' repeated objections—the district court's evidentiary rulings strayed from its pretrial rulings. As a result, the jury was exposed to a copious amount of inflammatory and prejudicial evidence with little (if any) relevance.
The most troubling evidence admitted at trial related to Diaz's gang membership. There was wide-ranging testimony from Defendants' gang expert, Gonzalez. There were also photographs featuring Diaz's tattoos and him posing with guns and throwing gang signs, none of which Bennallack knew about or had seen when he shot Diaz.
Given [Diaz's mother's] testimony, I think [the defense is] entitled to put the gang expert on. It has got to be narrow and it's got to be focused on his gang membership, not the activities of the gang at large. I don't think the plaintiff at this time is entitled to basically rehabilitate the testimony and rewrite the record.
The court then ruled that Defendants could offer photographs of Diaz's gang tattoos and him throwing gang signs, as well as other information related to his gang moniker, clothing, and association. When Plaintiffs' counsel questioned the court's change of heart regarding the admission of the tattoo photographs—which it had initially excluded—the court remarked, “[w]ell, I think they're entitled to put in probative evidence. She hasn't straight up admitted that he was a gang member. I don't think the tattoos are inflammatory. They are what they are.” In contrast, the court excluded discussion of specific gang activities, and any additional photographs of Diaz with guns, as some already had been admitted as to liability under a “gang gun” theory.6 But Defendants again were permitted to present the previously admitted gun photographs to the jury—in one, Diaz held a gun in his left hand and made a gang sign with his right. In another, he pointed a gun to his head.
Unquestionably this gang evidence at least to his gang membership is inflammatory, and frankly the witness made it a point to expand his answers on every question. Most answers were beyond the scope of the question. Some objections were made which I sustained; some weren't.
For example, when asked “Why do gang members pose with guns?” Gonzalez responded: “It goes into their image, their persona of being a gang member, showing other gang members that they have firearms readily accessible, that they have means to commit crimes against the general public, against law enforcement, against rival gang members.” (emphasis added). When asked “Why do gang members wear baggy T-shirts?” he responded in part: “Another reason that I have come to learn about is that it helps conceal items like firearms, other deadly weapons. It's easier to put a rifle or a sawed-off shotgun down your shorts or your pants when you've got baggy pants on and a baggy shirt.” Gonzalez also was permitted to testify to several things which the court originally had excluded as unduly prejudicial under Rule 403 during the motions in limine, including that Anna Drive was part of the gang's turf and gang activities in general. He further testified about Diaz's gang moniker—“Stomper”—and then repeatedly used the moniker to refer to Diaz. The jury also learned that Gonzalez personally had arrested Diaz on a prior occasion.
In summary, Gonzalez's testimony did not hew to the district court's direction to be “narrow” and “focused on his gang membership, not the activities of the gang at large.” Instead, Gonzalez took every opportunity to opine on matters squarely forbidden by the court's previous rulings. As a result, the jury was exposed to inflammatory testimony that was wholly irrelevant to liability, and of limited relevance even as to damages.
Further, despite its original hesitation, the district court ultimately ruled that the toxicology evidence was relevant to damages,8 and Defendants proceeded to similarly stretch this ruling. In contrast, the court found that the toxicology evidence was not relevant to § 1983 liability, as Officer Bennallack did not know or suspect that Diaz was under the influence of drugs at the time of the incident.
We know methamphetamines can be dangerous, and we know it affects people different ways. It can cause euphoria. It can cause hallucinations. It can cause people to become paranoid, can cause them to become violent; and it can cause them to use poor judgment. That's pretty much common knowledge.
From my review of the facts in this case, it's possible that methamphetamine at the levels of which were measured at autopsy could have caused Mr. Diaz to use poor judgment in what ended up happening in this case.
Judges have wide latitude in conducting their trials, and for good reason. See, e.g., Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). This is why the rules permit bifurcation, and why we usually affirm a trial judge's decision—to either bifurcate or keep things together—as within her discretion. But this discretion is not limitless.
We review for abuse of discretion the district court's rulings on whether to bifurcate a trial. Exxon Co. v. Sofec, Inc., 54 F.3d 570, 575 (9th Cir. 1995). Under this standard, we reverse only when we are “convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances.” Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).
Federal Rule of Civil Procedure 42(b) permits a court to order a separate trial of separate claims or issues “[f]or convenience, to avoid prejudice, or to expedite and economize.” A court might bifurcate a trial to “avoid[ ] a difficult question by first dealing with an easier, dispositive issue,” Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001), or to avoid the risk of prejudice. See Quintanilla v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996) (explaining that, in a § 1983 case challenging the use of a police dog during a search, the trial court bifurcated the trial of the individual officers from that of the city in part to avoid prejudice). Further, “[i]t is clear that Rule 42(b) gives courts the authority to separate trials into liability and damage phases.” De Anda v. City of Long Beach, 7 F.3d 1418, 1421 (9th Cir. 1993); see also 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2390 (3d ed. 2016) (“The separation of issues of liability from those relating to damages is an obvious use for Federal Rule 42(b).”).
This was simply overkill. Considering that the parties and district court had repeated trouble tracking precisely why this prejudicial evidence was admissible for any purpose, no jury could properly compartmentalize it. For example, on the fourth day of trial, the court and parties were still not clear about whether the fact that Diaz was under the influence of drugs was relevant to liability under a comparative fault defense, even after Plaintiffs had dropped their negligence claim.10 Even assuming that a portion of this evidence had some relevance to damages, it never should have been combined with the liability phase.
Indeed, this court has recognized time and time again that gang evidence has the potential to be particularly prejudicial. See, e.g., Kennedy v. Lockyer, 379 F.3d 1041, 1055 (9th Cir. 2004) (“Our cases make it clear that evidence relating to gang involvement will almost always be prejudicial[.]”); United States v. Takahashi, 205 F.3d 1161, 1165 (9th Cir. 2000) (holding the district court did not abuse its discretion in admitting evidence of gang membership where the court “recognized the need to prevent undue prejudice,” gave a limiting instruction, excluded photographs of gang tattoos as evidence of membership, and minimized repetition of the gang's name).
Similarly, even if evidence of Diaz's drug use were relevant to damages, the form and nature of the evidence presented regarding his drug use on the day of the incident was unduly prejudicial in light of the decision not to bifurcate. It would have been far more relevant to damages for an expert to testify simply to the presence of drugs in Diaz's body and to the effects of drug use on relationships. The focus on the day of the incident was minimally probative of damages, and was highly likely to influence improperly the jury's evaluation of Officer Bennallack's use of force, when he never suggested he thought Diaz may have been intoxicated.
Further, the district court already had bifurcated punitive damages. Bifurcating from the liability phase the testimony actually relevant to compensatory damages would have cost little, if any, court time—none, if the jury had returned a defense verdict.
In light of our decision to reverse the judgment and remand for a new trial, we also provide some guidance to the district court.
First, the evidence of Diaz's drug use and gang affiliation has marginal, if any, probative value as to damages, and none as to liability. On retrial, the district court should closely review this evidence under Federal Rules of Evidence 401 and 403, and should assure that such evidence is admitted only to the degree that the testimony is connected up with Ms. Huizar's reaction to her son's death.
Second, if Plaintiffs are willing to stipulate that Diaz was a gang member (which they claim they tried to do during trial), no expert testimony about gangs—such as gang activities, tattoos, or monikers—should be admitted. Bennallack can certainly testify as to his knowledge about gang activity in the area. See Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding that to determine whether police force is excessive, the proper inquiry is “whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them”).
Third, while there is a “strong presumption that jurors follow instructions,” a limiting instruction may not sufficiently mitigate the prejudicial impact of evidence in all cases. See Miller v. City of Los Angeles, 661 F.3d 1024, 1030 (9th Cir. 2011); Bayramoglu v. Estelle, 806 F.2d 880, 888 (9th Cir. 1986) (“A timely instruction from the judge usually cures the prejudicial impact of evidence unless it is highly prejudicial or the instruction is clearly inadequate.” (quoting United States v. Berry, 627 F.2d 193, 198 (9th Cir. 1980))). The Advisory Committee Note to Federal Rule of Evidence 403 also recognizes the potential inadequacies of a limiting instruction, counseling that “[i]n reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.” And if a limiting instruction was considered sufficient to cure all prejudice, there would be no need ever to bifurcate to avoid prejudice in other cases; yet in the civil rights context, courts often bifurcate the trials of individual officers from municipalities to avoid such prejudice. See, e.g., Quintanilla, 84 F.3d at 356 (“The district court ․ in the interest not only of convenience and judicial economy but also the avoidance of potential prejudice and confusion, bifurcated the trial of the individual police officers from the Chief and city.”); Green v. Baca, 226 F.R.D. 624, 633 (C.D. Cal. 2005) (“Bifurcation is appropriate ․ to protect the individual officer defendants from the prejudice that might result if a jury heard evidence regarding the municipal defendant's allegedly unconstitutional policies.”).
Plaintiffs also appeal the district court's denial of their motion for judgment as a matter of law on their excessive force claim. Because the district court correctly ruled that this question was one for the jury, we affirm its denial of Plaintiffs' motion.
“We review de novo the district court's denial of a Rule 50(b) renewed motion for judgment as a matter of law. The test is whether ‘the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury.’ ” White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002), amended on denial of reh'g, 335 F.3d 833 (9th Cir. 2003) (footnote omitted) (quoting Forrett v. Richardson, 112 F.3d 416, 419 (9th Cir. 1997)). We “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Where an “excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment.” Graham, 490 U.S. at 394, 109 S.Ct. 1865. As with other Fourth Amendment claims, we inquire “whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. 1865.
We determine whether challenged state actions are objectively reasonable by balancing “ ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). This demands a “fact-intensive inquiry requiring attention to all circumstances pertinent to the need for the force used.” Velazquez, 793 F.3d at 1024. We “first consider[ ] the nature and quality of the alleged intrusion; we then consider the governmental interests at stake by looking at (1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (citing Deorle v. Rutherford, 272 F.3d 1272, 1279–80 (9th Cir. 2001)). These factors are not exclusive. Id.
Here, while Plaintiffs presented substantial evidence that the force was unreasonable, Defendants also presented substantial evidence to support their position. When each of the Graham factors is analyzed, the record does not “permit[ ] only one reasonable conclusion ․ contrary to that of the jury.” White, 312 F.3d at 1010 (citation omitted).
It is undisputed that the only crime Diaz had committed, if any, was a misdemeanor, and that Officer Bennallack had no information that a crime was reported in the area. However, Bennallack was aware of an ongoing criminal investigation in the area involving the sale and possession of firearms by the East Side Anaheim Gang, and believed Diaz to be a gang member.
While Officer Bennallack testified that he never saw Diaz's hands, or a weapon on his person, certain indicia could have led a reasonable officer to believe Diaz was armed. For example, Bennallack observed that rather than pumping his arms as he ran, Diaz was “reaching towards his waistband” and appeared to be manipulating an object with his hands. Bennallack also testified that Diaz looked back at the officers multiple times, as if to acquire a target. Finally, instead of running through a gate that led to the street, Diaz led the officers into a fenced-in area, and Bennallack observed Diaz begin to slow down, assume a “low-ready” position, and turn towards him.
On the other hand, in addition to the fact that Bennallack never saw Diaz's hands or a weapon on his person, other evidence weighs against an immediate threat to officer safety. For example, Diaz was shot in the back, which could refute Bennallack's testimony that he was turning. While the jury was entitled to weigh this evidence and Bennallack's credibility against other evidence and the credibility of witnesses who offered alternative versions of events, we must view the evidence in the light most favorable to Defendants.
Certainly “a simple statement by an officer that he fears for his safety or the safety of others is not enough.” Deorle, 272 F.3d at 1281. Nevertheless, Defendants presented facts demonstrating why such fear could have been reasonable here, including observations of Diaz's movements, flight route, the presence of gang activity in the area, and his refusal to comply with the officers' orders. Cf. id. (explaining that the officer using force knew the plaintiff “had discarded his crossbow following [the officer's] instructions to do so, and carried only a bottle or a can with him at the time he was shot”). Even if Bennallack's subjective fear is discounted, much of his testimony focused on observations during the encounter and how he interpreted the situation based on his training, which the jury could reasonably credit.
It is undisputed that Diaz was running from the officers and did not obey their commands to stop, put his hands up, or get on the ground. That Diaz was slowing down at the time of the shooting does not compel the conclusion that he was complying with the officers' orders, nor does it prove that he was preparing to shoot the officers. These are both reasonable interpretations of the evidence. The jury was entitled to choose between them based on their weighing of the evidence and the witnesses' credibility.
In sum, taking the evidence in the light most favorable to Defendants, these facts do not warrant judgment for Plaintiffs as a matter of law.
Police shootings are often the most difficult—and divisive—cases that our legal system and society encounter. Wrapped in strong emotion and often opaque case law, they can perplex even our most experienced trial judges, like the judge in this case. To avoid the runaway case—like this one, where the Defendants and their witnesses repeatedly overstepped the judge's rulings—courts should use bifurcation to corral lawyers and witnesses, so the jury hears only evidence relevant to the issues at hand. Here, that was whether Officer Bennallack acted lawfully when he shot Diaz. Because the jury heard considerable and inflammatory evidence that had nothing to do with that question, we REVERSE and REMAND this case for a new trial.
1. Bennallack did not recall whether that gate was open, closed, or ajar.
2. Plaintiffs filed suit in California Superior Court, and Defendants removed the action to the District Court for the Central District of California.
3. During trial, Plaintiffs withdrew their Fourteenth Amendment claim. The district court refused to submit the unreasonable detention claim to the jury because it lacked sufficient evidence.
4. The parties agreed that the jury finding regarding excessive force would also be dispositive of the state battery claim.
5. She testified as follows:Q: Do you acknowledge that your son was a member of the East Side Anaheim street gang?A: I have come to find out more after his death. I loved my son, and maybe I didn't know a lot about him during those times. It doesn't mean I didn't love him any less.Q: No one is disputing that, Ms. Huizar. Are you indicating you did not know at that time that he was a member of the East Side Anaheim street gang?A: I'm not sure how to answer because I never thought of him as a gang member.
6. Defendants' explanation for why no firearm was found at the scene was that Diaz was armed with a shared “gang gun” that a fellow gang member retrieved and removed after the shooting. As such, the court admitted photographs of Diaz posing with guns two days before the shooting, ostensibly under the auspices of Boyd. See 576 F.3d at 944 (“In a case such as this, where what the officer perceived just prior to the use of force is in dispute, evidence that may support one version of events over another is relevant and admissible.”). As Officer Bennallack never saw a gun, we have reservations about the admissibility of this evidence even as to liability. But we need not reach this question, as Plaintiffs have not meaningfully raised the issue on appeal and we reverse on bifurcation grounds.
8. The timing and rationale underlying the court's final ruling is not evident from the record on appeal. Defendants had argued that Diaz's drug use was relevant to Ms. Huizar's claim for the loss of her relationship with her son, particularly in light of her testimony that Diaz was often not permitted to live with her and her husband in part because he did not follow their rule banning drug use.
9. This testimony was ostensibly “stricken” from the record as described above.
10. Prior to Dr. Clark's testimony—and outside the presence of the jury—Plaintiffs' counsel inquired as to the relevance of his testimony, in light of the fact that they had dropped the negligence claim. Defendants argued that the toxicology evidence went not only to damages but also to liability (as relevant to a comparative fault defense), and the court remarked that “[w]e need to sort that issue out.” No further discussion occurred before Dr. Clark testified, though the court ultimately gave a limiting instruction that Diaz's drug use was relevant only to damages.
11. In light of our ruling, we do not reach the issue of whether Plaintiffs' failure to make a Rule 50(a) motion as to the unlawful detention claim barred review of the district court's dismissal of that claim sua sponte before the close of evidence. We do observe, however, that requiring a litigant to make a Rule 50(a) motion for judgment as a matter of law on a claim no longer before the jury appears, at first blush, futile. See Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015) (“A motion for judgment as a matter of law may be granted if ‘the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue[.]’ ” (quoting Fed. R. Civ. P. 50(a))). We also do not reach whether Plaintiffs are entitled to a new trial under Rule 59(a) based on the district court's evidentiary rulings or formulation of jury instructions.
12. See, e.g., Barnett v. Norman, 782 F.3d 417, 422–23 (9th Cir. 2015) (outlining powers of district judge to ensure witness complies with court order); United States v. Panza, 612 F.2d 432, 439 (9th Cir. 1979) (“We can only speculate as to the effect on the jury of the striking of the testimony.” (citing United States v. Cardillo, 316 F.2d 606, 612 n.3 (2d Cir. 1963))); Cardillo, 316 F.2d at 612 n.3 (“The effectiveness of such procedures after the testimony has been heard by the jury has been the subject of speculation, metaphysical and otherwise, by jurists and trial lawyers for generations.”).
13. Cf. United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985) (“We have often noted that the trial court may be able to ‘neutralize’ the effect of improper prosecutorial remarks by admonishing counsel to refrain from such remarks or by giving appropriate curative instructions to the jury.”).