Free Motion to Strike - District Court of Arizona - Arizona

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JOSEPH C. DOLAN, ESQ. (007376) 1650 North 1st Avenue Phoenix, Arizona 85003 (602) 266-7667 Fax (602) 277-9839 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT IN AND FOR DISTRICT OF ARIZONA JERRY SIMMS, a single man, Plaintiff, vs STATE FARM FIRE AND CASUALTY COMPANY, an Illinois corporation; ABC CORPORATIONS I-X; JOHN DOES I-X, Defendants. MOTION TO STRIKE EXHIBIT 4 TO THE AFFIDAVIT OF WILLIAM R. PHILLIPS IN SUPPORT OF DEFENDANT'S MOTION TO AMEND JUDGMENT CV-03-1415-PHX-ROS

Plaintiff Jerry Simms hereby moves to strike Exhibit 4 to the affidavit filed by Mr. William Phillips on August 7, 2006 in this matter in support of State Farm's motion to amend judgment. Exhibit 4 consists of four identical declarations from jurors in this matter. The declarations purport only to establish that in reconsidering the jury's response to question no. 5 (regarding damages for bad faith) the plaintiff's incurred attorneys fees was the "only topic of discussion" that these four jurors recall prior to the jury's final return of the verdict form. (See paragraph 3 of declarations.) These declarations must be stricken because they violate Rule 606(b), F.R.E. Rule 606(b), F.R.E. provides: "(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was

Case 2:03-cv-01415-ROS

Document 214

Filed 08/23/2006

Page 1 of 3

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improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes." This is a broad rule of exclusion with only narrowly stated exceptions. A juror may not testify or supply affidavits as to any matter occurring during the course of the jury's deliberation except that a juror may testify "on the question whether extraneous prejudicial information was improperly brought to the jury's attention," or "whether any outside influence was improperly brought to bear upon any juror." The affidavits comprising Exhibit 4 do not come within these narrow exceptions. TIG Insurance Co. v Liberty Mutual Ins. Co., 250 F. Supp. 2d 1197 (2003); McDonald v Pless, 238 U.S. 264, 59 L. Ed. 1300, 35 S. Ct. 783 (1915); Taylor v Southern Pac. Transp. Co., 130 Ariz. 516, 521, 637 P.2d 726, 731 (1981). Nowhere in the affidavits is there any evidence to establish that "extraneous information" was considered. Nowhere in the affidavits is there any suggestion that "outside influences" were brought to bear upon the jury's deliberations. For all that appears from the affidavits, the "attorney fee" issue was something that the jurors themselves decided to consider before being corrected by the court. This is not by definition "extraneous" or "outside" information or influence. See Multiflex, Inc. v Samuel Moore & Co., 709 F. 2d 980 (5th Cir. 1983); Michaels v Michaels, 767 F. 2d 1185 (Cir. 1985). The declarations do not even purport to recite what was stated on the topic of "plaintiff's incurred attorneys fees." The declarations only state that this was the "only topic of discussion" that "I recall" amongst the jurors. As such, there is nothing in the declarations that would bring these matters within the exceptions found in Rule 606(b), F.R.E. For these reasons, these declarations must be stricken. RESPECTFULLY SUBMITTED this 23rd day of August, 2006. By s/Joseph C. Dolan 007376 JOSEPH C. DOLAN, ESQ. 1650 North 1st Avenue Phoenix, Arizona 85003 Attorney for Plaintiff

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 23, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: William Phillips, Esq. BROENING OBERG WOODS & WILSON 1122 East Jefferson Phoenix, Arizona 85036 Attorneys for State Farm

I HEREBY CERTIFY that on August 23, 2006 I served the attached document by mailing a copy of the following: Hon. Roslyn Silver United States District Court, Suite 624 401 W. Washington Street Phoenix, Arizona 85003-2158

JOSEPH C. DOLAN

1650 North First Avenue Phoenix, Arizona 85003

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s/Joseph C. Dolan, Esq. 007376 Attorney

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