Free Motion for Certificate of Appealability - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Case No. 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant.

PLAINTIFF'S MOTION TO CERTIFY INTERLOCUTORY APPEAL UNDER 28. U.S.C. §1292(b) OF ORDER GRANTING DEFENDANT NEW TRIAL

Plaintiff William R. Cadorna ("Plaintiff" or "Mr. Cadorna") moves pursuant to 28 U.S.C. §1292(b) for certification for immediate appeal of this Court's September 27, 2007 Order Granting Defendant a New Trial. As grounds, Plaintiff states: In two months, it will have been five years since Defendant forced Plaintiff into a long, nightmarish odyssey through a reeking Hades of incompetence and deceit to restore his dignity, honor and good name. Plaintiff thought his long ordeal finally ended on June 29, 2006, when an unusually intelligent and sophisticated jury of eight distinguished citizens1 found in his favor. Alas, the infernal nightmare continues. This Court has unconstitutionally imposed a $1.22 million+ sanction on Plaintiff, and a

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A 65 year-old Executive Assistant; a 63 year-old Anglo male investment manager; a 60 year-old Anglo male restaurateur; the foreperson, a 57 year-old Anglo female political consultant; a 54 year-old Anglo male, retired U.S. Navy Commander; a 51 year-old Latino information systems analyst; a 40 year-old Latina flight attendant and union activist; a 40 year-old Anglo, male maintenance foreman.

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$300,000.00+ sanction on his counsel, for alleged misconduct never proved by "clear and convincing evidence" to have prejudiced the jury. It is not the bias of the jury, but the bias of this Court, that must be undone. Apparently, this Court assigns greater importance to good manners than to the Constitution. It has despotically nullified a jury verdict quite valiantly and fairly won. True professionalism consists of much more than good manners. Above all, it consists of respect for the truth, the law, and the Constitution. The undersigned's conduct has been according to the highest standards of professionalism. He has courageously, zealously and successfully represented Plaintiff for years against the determined resistance of a massive, powerful bureaucracy.2 He has displayed dauntless devotion to the truth and the law. But for his intelligence, tenacity, and creativity, the truth would remain concealed under the tapestry of lies so industriously woven by Defendant. This trial was a great contest of will, and skill. The Court actively controlled the proceedings. Defendant was represented by a team of able counsel. As in Mason v. Oklahoma Turnpike Authority, 115 F.3d 1442 (10 Cir. 1997), the Court's total control belies the inference of prejudice. Some of the alleged misconduct upon which this Court relies occurred outside the presence of the jury, and therefore could not have prejudiced the jury. (Order, p. 6, relying upon statements outside presence of jury, Tr. 1436-61). If it had occurred in the presence of the jury, it might just have easily prejudiced the jury against Plaintiff.

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Despite his long-held desire to exit the practice of law, his insistence when Plaintiff first sought his help (eight months after his firing) that he would only handle the Civil Service hearing and appeal, and the warnings of numerous "experts" in employment litigation that Plaintiff could not possibly win at trial.

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As the attached excerpts demonstrate, that which occurred in the presence of the jury was utterly innocuous. The Court makes much of the undersigned's automatically correcting a question to comply with an objection, without the court having to rule, or speaking through a groundless objection during his closing. (Order, pp. 3-4, citing, Tr. 154, 206-07, 761-763, 1616.) This was not purposeful. The undersigned meant no disrespect. It was the inevitable, practically unconscious, result of the undersigned's preoccupation with maintaining the pace of his cross-examination or closing (after the courtroom deputy mistakenly signaled his time was nearly "up"). 3 In determining whether "there is a reasonable probability that the verdict of a jury has been influenced" by improper conduct, warranting that the verdict be set aside, a court must examine, on a case-by-case basis, the totality of the circumstances, including the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case (e. g. whether it is a close case), and the verdict itself. Cleveland v. Peter Kiewit Sons' Co., 624 F2d 749, 756 (6th Cir. 1980). This was a very strong case. Though the Court describes the evidence as "far from compelling", it was quite compelling, else this Court would have granted Defendant's motions for judgment as a matter of law during trial. The stipulations alone stated a claim for discriminatory termination and refusal to rehire. (Exh. 1). The evidence at the close Plaintiff's case-in-chief was such that Plaintiff felt entitled to move for judgment as a matter of law in its favor. (Exh. 2, Tr. 1141)
In many courts, voluntarily sparing the court the need to rule on an objection would have been greatly appreciated as a courtesy, not perfervidly condemned as "usurpation".
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As this Court knows quite well, former Safeway Store Manager Michael Brown's video deposition was absolutely devastating to Defendant's case. It confirmed that Safeway would not have charged Plaintiff with shoplifting had Asst. Chief Joe Hart not abused his uniform and authority, and lies concerning the evidence against Plaintiff, to persuade Brown to file a criminal complaint against Plaintiff.4 Cross-examination of Joe Hart revealed that, whereas Plaintiff was wearing a Fire Department sweatshirt and pants when he was given the complimentary cookbook, Hart was dressed in his very impressive, white-shirted Assistant Chief's uniform, replete with gold badge and gold bugles. Hart is a handsome and affable Irishman who projects charm that belies his sinister methods.5 Hart is by all appearances a heroic firefighter, too. The undersigned quite reasonably feared the jury would like Hart more than Plaintiff, yet it was necessary to expose Hart's true character. Since a principal theme of Plaintiff's case was the heroism of Firefighters, and the dastardly way in which the City's heartless bureaucracy rewarded Plaintiff's heroism, it would be counterproductive to attack Hart head-on. It would be necessary to "kill him with kindness".

Brown confirmed that he knew when he signed the criminal complaint against Plaintiff that Safeway employee Kevin McKee had given Plaintiff permission to take a complimentary copy of the cookbook to replace one he had previously lost in the store. Brown explained that he nevertheless charged Plaintiff with shoplifting it because he trusted Hart when Hart told him Cadorna had stolen the cookbook. Brown further admitted that, when a Safeway employee later brought him what appeared to be the very cookbook Plaintiff had insisted he had previously purchased and lost in the store, Brown carefully cut out the leaf containing Plaintiff's name and address, placed the book back on the shelf for resale, and did not contact the police to withdraw the criminal complaint. Brown concealed this exculpatory evidence from Plaintiff until long after Plaintiff's termination, and perjured himself in the first criminal trial of the shoplifting charge by denying its existence. Defendant (which subjected Plaintiff to one full criminal trial and the threat of another to try to defeat his appeal with a conviction and/or to coerce Plaintiff into dropping his CSC appeal) never prosecuted Brown, despite his written confession. 5 Incredibly, the Civil Service Commission hearing officer endorsed Hart as "one of the most credible witnesses [he had] ever encountered", even after witnessing Hart give highly evasive testimony under oath.

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This Court mistakenly characterizes the undersigned's compliment of Hart in his elegant Chief's uniform as "sarcastic." It was merely disingenuous. From the jury's perspective, it could only have appeared genial. (Tr. 607). This Court forgets, or never comprehended6, this compliment's purpose: to emphasize Hart's impressive appearance and thereby reinforce that Hart abused his uniform to induce Mike Brown to swear a false shoplifting complaint against Plaintiff, i.e., Hart was guilty of the same offense for which Hart and Defendant's highest officials attempted to justify terminating Plaintiff. If Plaintiff was a thief, so was Hart; conversely, if Hart was not a thief, neither was Plaintiff. This was fundamental to proving pretext. Similarly, under cross-examination, Asst. Chief Steven Garrod, Manager of Public Safety Tracy Howard, and former Fire Chief Rod Juniel all agreed that they might not have terminated Plaintiff had they known highly exculpatory information which was readily available to their cadre of professional investigators, but never pursued.7 On page 6 of its Order, the Court condemns the undersigned for the "recusant practice" of "editorializing" and "ad hominem commentary". It is a gross miscarriage of justice, and deprivation of Plaintiff's most fundamental constitutional and statutory rights, to seize upon such trivial "misconduct" as a pretext for excusing the City's proven "recusant practice" of: (1) falsely accusing and prosecuting a 27-year Firefighter of a

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Though, given its great intelligence and perspicacity, this Court appeared to keenly comprehend and appreciate its purpose at the time. 7 They also admitted that (as they did when a younger Firefighter was prosecuted by the U.S. Attorney for federal firearms offenses) they could have waited until after disposition of the petty criminal charge against Plaintiff before deciding whether to discipline him. They clearly did not want to be confused with the facts, and rushed to judgment. Defendant's officials also schemed to pressure Plaintiff to retire to avoid termination by sending a Fire Department employee to Plaintiff's house with a retirement application. When the threat of termination did not coerce Plaintiff into retiring, Defendant fired him, and forced his retirement, then deviously used his retirement to refuse reinstatement.

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petty crime it knew he did not commit: (2) unlawfully terminating him for it; (3) unlawfully refusing to reinstate him because he was over age 50. Again, this Court appears far more concerned with enforcing rules of etiquette than federal law. The malice inherent in this Court's Order becomes manifest after careful review of the exchanges for which it condemns counsel. They were commonly accepted trial tactics, completely unobjectionable, or, even if objectionable, innocuous. (See Exh. 3, attached.)8 In the context of lengthy testimony, and a very lengthy trial, inferring

incurable prejudice from them manifests extraordinarily bad faith. During the undersigned's cross-examination of former Chief Rod Juniel, this Court properly responded to Defendant's constant objections with genial observations
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At 633, the undersigned asked Hart: "In fact, you used the badge to commit the theft of my client's career, didn't you?" At 820, the undersigned asked Plaintiff, in discussing his prosecution for theft: "And so you continued to be entitled to the constitutional presumption that you were innocent of any crime?" At 821, the undersigned asked Plaintiff, without objection by Defendant, to explain why he filed suit in federal court after the City refused to reinstate him when he was exonerated of theft: "Why get involved in this big old lawsuit in this beautiful courtroom for the better part of a week or more and take up the time of a lot of people that undoubtedly have many other concerns in their lives? Why not settle for what the judge said?" Plaintiff's response was: "Well, Judge Criswell in his decision said that he could not reinstate me because I had ­ I was over the age of fifty, and according to this statute, I was not ­ or I could not be a fireman for the City & County of Denver anymore." At 826, the undersigned simply started his next question before realizing that an objection had been registered, apologized to the Court, and awaited the Court's ruling. At 830, as Plaintiff faded into confusion during his testimony, the undersigned simply sought to correct a misstatement by him. At 838, he simply raised the question of whether the Court would allow questioning on a subject if it were relevant to Plaintiff's substantive due process claims. At 1043, he asked Plaintiff whether the City voluntarily remedied his unlawful termination after it received Mike Brown's written confession that he had committed perjury and obstruction: "Did Mr. Wesoky then contact you after this confession came to light and say, Mr. Cadorna, I am very sorry, it appears the City made a terrible mistake, we allowed someone to perjure himself and obstruct justice in furtherance of our prosecution of you at the same time your Civil Service Commission appeal was pending?" At 1052, he asked Plaintiff: "Bill, weren't you just jumping up and down happy when you got Criswell's decision and didn't you want to send him a bouquet of roses and say, "Thank you for not giving me my job back!"? At 1250, he asked Frank Hoffman, Plaintiff's nemesis, if, in management training he received, they all sat in a circle and sang, "Kumbaya". At 1254, he asked Hoffman whether he intended to save the City's resources when he set Plaintiff up to be fired for shoplifting. Pages 1301-02 are cited by the Court, but are devoid of any remotely arguable impropriety. At 1316, the undersigned asked a compound question, and was properly instructed to correct it. At 1318-19, he asked, after the Court sustained his objection that Asst Chief Caldwell's evasive answer was non-responsive: "I asked you, Chief, and I know you don't want to answer it, but let's give it another shot, I asked you, where is it written in Denver Fire Dept. policies that an allegation of misconduct by a firefighter must be reduced to writing in order for any action to be taken?" Page 1320 is cited by the Court, but is devoid of any remotely arguable impropriety. In examining Tracy Howard, the undersigned exposed that Howard did not consider Plaintiff's service record (Tr. 1981), and implied that he regarded Plaintiff as guilty until proven innocent. (Tr. 1385-86).

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such as it was just "good, old-fashioned cross-examination" (Tr. 1495) and "in-bounds cross-examination" (Tr. 1502). With the passage of time, this Court's memory of trial has obviously been distorted beyond repair. Its description at trial is more reliable. This Court attacks the undersigned's quip about Plaintiff's nemesis, Frank Hoffman (nicknamed "Lurch"), as "boorish and unprofessional". This quip had its purpose: to provoke an angry outburst from Hoffman that would expose him as much less equanimous than he pretended to be on the stand. There is no reason to believe the jury perceived it differently from the Court, yet this Court again illogically presumes that statements by Plaintiff's counsel that offended this Court did not offend the jury. Throughout its Order, the Court applies an unlawful presumption for Defendant and against Plaintiff. Obligated to view the record in the light most favorable to Plaintiff, Courtney v. Safelite Glass Corp., 811 F. Supp. 1466, 1471 (D. Kan. 1992), this Court instead views it in the light most favorable to Defendant. This was patent error of law. Defendant's failure to move for mistrial or a new trial on the basis of alleged misconduct before the jury was excused waived its right to seek a new trial absent showing by clear and convincing evidence of actual prejudice. Anderson v. United Telephone Co., 933 F.2d 1500, 1503-04 (10th Cir. 1991); Fonten Corp. v. Ocean Spray Cranberries, Inc., 469 F.3d 18, 21-22 (1st Cir. 2006). The Court obviously perceived no passion or prejudice that would interfere with the jury's deliberations. Its extensive instructions reminded the jury that counsel's statements and actions are not evidence and should not influence their decision. The jury deliberated conscientiously for over three hours. They deliberated no more because Plaintiff proved his case and

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Defendant mounted a poor defense. In Miller v. Eby Realty, 396 F.3d 1105, 1110 (10th Cir. 2005), and ADEA case, the Tenth Circuit inferred no prejudice from jury deliberations of three hours. This Court's reliance on the length of deliberations to infer prejudice is patent error of law. Defendant sought, and the Court took, no measures to explore any possible concerns either might have had about the propriety of their deliberations. Now, to justify overturning a well-founded verdict, this Court chooses the least plausible explanation for the duration of deliberations or the question concerning fees, and applies an unlawful presumption of irregularity. The Court seizes upon the jury's facially neutral question: "May the jury award lawyers' fees?" They did not indicate to whom fees might be awarded. There is no evidence the entire jury sought an answer to this question, or that they had already reached a unanimous verdict when the question was asked. To the contrary, they continued deliberating for nearly two more hours. It was a very reasonable question from sophisticated laypersons, familiar with our legal culture. The Court's reliance on such suspect "authority" as Ballarini v. Clark Equipment Co., 841 F. Supp. 662, 667 (E.D. Pa. 1993) is troubling. In Ballarini, the trial court was foreclosed from granting judgment notwithstanding the verdict because the defendant had not moved for judgment as a matter of law. In the guise of granting a new trial, the court granted judgment as a matter of law on key questions of liability. Allegations of misconduct by the plaintiff's counsel were not decisive. The court deemed the following jury question, just fifteen minutes before it issued its verdict, to evidence the effect of the attorney's

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alleged misconduct9: "Does the judge have the right to overrule/or rule on our amount if we find for plaintiff?" Ballarini is substantively suspect, and highly distinguishable. The Court's claim it lost control of the trial to the undersigned would be laughable were its consequences not so catastrophically unconstitutional. A fair reading of the entire record, consisting of 1,663 pages (not including the Mike Brown deposition), proves that this Court kept the undersigned on a very "short leash", and that the undersigned's behavior in the presence of the jury was that of a passionate and effective advocate, almost always courteous and respectful. (Exh. 4, 5, 6, 7, 8, 9, 10, 11, 12, Trial Transcript Excerpts). This Court has not given the record a fair reading. Like the blind man who believes an elephant is a snake because he grabs its trunk, this Court selected only those few excerpts that reflect badly on the undersigned, and ignored much greater evidence of thorough professionalism. It also completely ignored the wealth of evidence of greater misconduct by opposing counsel, such as continuously interrupting cross-examination of key witnesses with unfounded objections, or deliberately misrepresenting facts concerning Plaintiff's retirement. Defendant received a trial that was much more than fair; indeed, it received a trial that was slanted in its favor. This Court abruptly terminated Plaintiff's crossexamination of Tracy Howard, purportedly because the undersigned complimented Howard for finally giving a "straight answer" to a question he had theretofore stubbornly resisted answering. This Court knew Plaintiff was about to enter into an area of questioning Howard that this Court had, despite its extreme relevance, inexplicably
9

Which included improper argument during voir dire, deliberate references to facts not in evidence, "endless objections . . . most based on already-decided issues", and head-shaking and scratching to communicate disbelief.

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declared "off-limits"10 The Court used the undersigned's compliment as a pretext for terminating Howard's testimony to avoid having to deny Plaintiff further crossexamination of Howard on indefensible evidentiary grounds. Similarly, this Court barred Plaintiff from subpoenaing and cross-examining the City's highest "policy-making officials" or decision-makers: (1) the Civil Service Commission ("CSC") Hearing Officer who overturned Plaintiff's discharge, but brazenly refused to reinstate him or grant him lost wages in lieu of reinstatement because he is over 50; (2) CSC staff and Commissioners who fraudulently affirmed the Hearing Officer in knowing reliance upon a falsehood: that Plaintiff retired "prior to dismissal"11. Moreover, even though Defendant admitted they played no role in Plaintiff's termination, this Court permitted Defendant to introduce irrelevant, highly prejudicial information concerning a domestic disturbance and drunken driving citation Plaintiff received in the fall of 2002. Plaintiff would have had excellent grounds for a new trial, had he lost. If the jury perceived a "them-against-us" atmosphere in the courtroom12, Plaintiff did not create it. In the few cases cited by Defendant and this Court to support a new trial, the degree of misconduct proven was far, far greater, and was aided and abetted by a complaisant judge who neither controlled the misconduct nor cured it with appropriate instructions. That was certainly not the case here. The undersigned did not engage in "ad hominem disparagement of the adverse attorney and ... client" in the jury's presence, as occurred in McEnrue v. N.J. Transit Rail Operations, Inc., No. 90-4728

To proving the City relied upon a falsehood, i.e., a pretext, to +refuse to reinstate Plaintiff despite his innocence. 11 A logical, and metaphysical, impossibility, since he would never have been fired had he already retired! 12 Something Plaintiff hardly concedes.

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(JBS) 1993 (U.S. Dist. Lexis 15528 (D.N.J. Sept. 30, 1993). Unlike the blatant, egregious conduct in Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 284 (5th Cir. 1975) and Hopson v. Riverbay Corp., 190 F.R.D. 114 122 (S.D.N.Y. 1999), the undersigned did not attempt to introduce significant facts not in evidence, make numerous misstatements of fact to the jury, Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 207 (3d Cir. 1992), or engage in outrageous disparagement, likening opposing parties or counsel "Mafia" kingpins, Nazis, or other notorious criminals. Cf. Koufakis v. Carvel, 425 F.2d 892, 904 (2d Cir. 1970). This Court strains to justify its Order by falsely likening the undersigned's conduct to the foregoing cases in which federal courts have upheld the grant of a new trial. It completely ignores the wealth of cases from the Tenth Circuit that leave no doubt it erred as a matter of law in granting a new trial for mere breaches of etiquette or other alleged attorney misconduct absent clear and convincing evidence they robbed the jury of its ability to decide the case as instructed. Minshall v. McGraw-Hill Broadcasting, 323 F.3d 1273, 1285-87 (10th Cir. 2003); Abuan v. Level 3 Communications, 353 F.3d 1158, 1174-76 (10th Cir. 2003); Powell v. Cobe Laboratories, 208 F.3d 227, 231 (10th Cir. 2000); Webb v. ABF Freight System, 155 F.3d 1230, 1237-38 (10th Cir. 1998); Mason v. Okla. Turnpike Authority, 115 F.3d 1442, 1456 (10th Cir. 1997); Ryder v. City of Topeka, 814 F.2d 1412, 1424-26 (10th Cir. 1987). In most of these cases, the misconduct alleged was more severe than anything for which this Court has tried and convicted the undersigned (and executed Plaintiff) without due process.

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If this Court had any reason during trial to believe that the proceedings had been irretrievably tainted by passion or prejudice, it would never have allowed the jury to decide the case, and would have sua sponte ordered a mistrial. If this Court had any reason to doubt after the verdict that the proceedings had been completely fair and untainted by passion or prejudice, it would have exercised its right under Fed.R.Civ.P. 59(e) to order a new trial sua sponte. If questions existed in the Court's mind, or Defendant's mind, whether the jury had complied with the Court's instructions or was motivated by passion or prejudice, the Court and Defendant had appropriate means at their disposal to clarify the basis of their verdict. They did not use them. The sole basis for the Court's Order is its apparently spectacular ability, comparable to its prodigious vocabulary, to read the juror's minds. Plaintiff may not question or subpoena jurors to testify concerning the basis of their verdict, which would obviate speculation by this Court concerning the true reasons for their verdict. This Court possessed at trial, and retains, the power, if it fears "extraneous prejudicial information" affected their verdict, to summon jurors to Court to resolve any questions concerning the propriety of their verdict. Fed.R.Evid. 606(b). It has not exercised that power. Due process, equal protection, and the Seventh Amendment require it. Nothing was more sacred to our forefathers than the right to trial by jury, for it vastly reduced the possibility of a corrupt sovereign oppressing the powerless through undemocratically appointed judges easily subject to political pressure or undue

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influence. 13 Nowhere do the Federal Rules of Civil Procedure provide that a new trial may be granted for attorney misconduct of any kind, let alone for the mere breaches of etiquette or decorum of which Plaintiff's counsel was accused.14 Fed.R.Civ.P. 60(b)(3) is quite relevant and instructive on the degree of misconduct required to overturn a jury verdict. Rule 60(b)(3) exists as a "safe harbor" for those with good cause to believe they were denied a fair trial through: "(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party". Rules 59(a) and 60(b)(3) must be construed together and harmonized as defining "other misconduct of an adverse party". Only misconduct tantamount to fraud, bribery, or

tampering will suffice to overturn a jury verdict.15. Zurich North America v. Matrix Services, 426 F.3d 1281, 1289-92 (10th Cir. 2005)[elucidating "fraud . . . or other misconduct by an adverse party" under Rule 60(b)(3)]. The undersigned's breaches of etiquette were hardly fraudulent or criminal, yet Plaintiff has been punished as though
13

In his dissent in William Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996), Justice Scalia (hardly a friend of "the little guy", but nevertheless a learned Constitutional scholar), offered a pellucid explanation of the Seventh Amendment's origins in the Founders' distrust of unbridled judicial power: [T]he practice of federal appellate reexamination of facts found by a jury is precisely what the People of the several States considered not to be good legal policy in 1791. Indeed, so fearful were they of such a practice that they constitutionally prohibited it by means of the Seventh Amendment. That Amendment was Congress's response to one of the principal objections to the proposed Constitution raised by the Anti-Federalists during the ratification debates: its failure to ensure the right to trial by jury in civil actions in federal court. See, also, Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1442-43 (10th Cir. 1988). 14 Without any comparable opportunity for Plaintiff to request that this Court review and rule upon the lengthy litany of misconduct by the City and City Attorney's Office since before Plaintiff's termination, including, inter alia, concealment of evidence and reliance upon perjured testimony and destruction of evidence by a lay witness in an effort to convict Plaintiff of shoplifting and thereby foreclose successful appeal of his termination. 15 Plaintiff's undersigned counsel was forced by the imminence of a week-long jury trial in another case (in which the undersigned won a $500,000.00 verdict), and by this Court's mysterious refusal to extend the deadline for Plaintiff's responses to Defendant's post-judgment motions, to hire other counsel to respond to two of Defendant's post-judgment motions. This therefore represents the first time Plaintiff has been able to elaborate explicitly on this important principle. Regardless of whether one of the parties spoon-fed them to him, this Court was obligated to consider all relevant authorities before depriving Plaintiff of his justlyobtained victory.

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they were. In Evans v. Fogarty, ____ F.3d ____, 082207 FED10, 05-6106 (10th Cir. 8/22/07), the Tenth Circuit very recently reversed the grant of a new trial under Rule 59, emphasizing such drastic infringement upon a litigant's Seventh Amendment right to a jury trial may be upheld in only the most extreme circumstances: We review a trial judge's decision on a motion under Rule 59 for abuse of discretion. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 43335 (1996) (holding appellate review for abuse of discretion does not violate party's Seventh Amendment right to a trial by jury); Frank v. Bloom, 634 F.2d 1245, 1254-55 (10th Cir. 1980). Yet when appellate review is of a district court's grant of a new trial, we subject that decision to more stringent scrutiny in order that the district court's judgment not be substituted for the jury's. (Emphasis added). See, also, Maday v. Public Libraries of Saginaw, 480 F.3d 815, 818-19 (6th Cir. 2007); Forrest v. Beloit Corp., 424 F.3d 344, 352 (3d Cir. 2005); Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1045-49 (6th Cir. 1996) Walls v. Armour Pharmaceutical Co., 832 F.Supp 1505, 1515-20 (M.D. Fla. 1993). Moreover, the Constitutional propriety of a new trial for prejudice presumed from the circumstances is a question of law, not of fact. Caterpillar Inc. v. Sturman Industries, Inc., 387 F.3d 1358, 1366-67 (Fed. Cir. 2004)16. This Court erred as a matter of law. As this Court knows17, Plaintiff cannot appeal its Order granting a new trial as a matter of right, because it is interlocutory in nature.18 Immediate appeal requires
16

"The parties disagree as to the applicable standard of review. Caterpillar argues the more common abuseof-discretion standard applies, while Sturman contends this case presents a legal question of implied bias, which is reviewed de novo. . . . . Thus, in cases of implied bias, as opposed to actual bias, `[w]hether a juror's partiality may be presumed from the circumstances is a question of law,' which we review de novo. Id.; see also Skaggs v. Otis Elevator Co., 164 F.3d 511, 517 (10th Cir. 1998) (`The determination of implied bias is a question of law reviewed de novo.')" 17 This Court could not be sustained on appeal had it granted Defendant's motions for judgment as a matter of law or notwithstanding the verdict. There is simply too much evidence of age discrimination. Plaintiff would have the right to appeal such a final and appealable judgment immediately, with benefit of a heightened standard of review.

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certification by this Court that its Order raises "a controlling question of law as to which there is substantial grounds for difference of opinion, and that an immediate appeal . . . may materially advance the ultimate termination of the litigation". 28. U.S.C. §1292(b). "[I]mmediate appeal . . . may materially advance the ultimate termination of the litigation," for, if this Court's erroneous grant of a new trial stands without review, the parties will be forced to wait eighteen months or more for a new trial. At least two weeks of this Court's precious time and resources will be taken up in the retrial. Thereafter, this Court will presumably be occupied in another lengthy round of postjudgment motions by Defendant to overturn its second loss. Only then, two, three, or more, years from now, would Plaintiff be entitled under 28 U.S.C. §1291 to appeal this Court's recent grant of a new trial. "Justice delayed is justice denied." WHEREFORE, Plaintiff requests that this Court certify its September 27, 2007 Order for immediate appeal under 28 U.S.C. §1292(b). Respectfully submitted this 17th day of October, 2007. MARK E. BRENNAN, P.C.

Mark E. Brennan
P.O. Box 2556 Centennial, CO 80161 (303) 747-5805 or (303) 797-7687 ATTORNEY FOR PLAINTIFF

Plaintiff is faced with a singularly unpleasant dilemma: (1) accede to this Court's clearly erroneous order, and go through the ordeal of another trial in mid-2009, only to then become embroiled in appeals of both trials that will take years more to conclude; or (2) thread the tiny needle, held by this very Court, of an immediate interlocutory appeal that will inevitably succeed, and obviate a pointless retrial.

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CERTIFICATE OF COMPLIANCE WITH D.C. COLO.LCivR. 7.1(A) and SERVICE In compliance with, the undersigned certifies that he attempted in good faith to consult with Defendant's counsel concerning the subject of this motion. They expressed their opposition. The undersigned hereby further certifies that on the 17th day of October, 2007, a true and correct copy of the foregoing MOTION TO CERTIFY INTERLOCUTORY APPEAL was served via the CM/ECF system to the following: Richard P. Barkley, Esq. Hamid Khan, Esq. Brownstein Hyatt & Farber, P.C. 410 17th Street, 22nd Floor Denver, Colorado 80202 Christopher M.A. Lujan, Esq. Assistant City Attorney, Litigation City and County of Denver 201 West Colfax, Department 1108 Denver, Colorado 80202

Mark E. Brennan

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