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Michael A. Willis and Kendrick Owens v. William J. Lepine

April 29, 2011


The opinion of the court was delivered by: Judge Joan H. Lefkow


Plaintiffs Michael A. Willis and Kendrick Owens filed suit against the City of Chicago and two Chicago police officers, William Lepine and Derek Glowacki, for false arrest, illegal search, and malicious prosecution. Plaintiffs alleged that Officers Lepine and Glowacki arrested them without probable cause on the evening of February 26, 2006 and that, incident to this arrest, they were subject to a strip search and other humiliating procedures at a Chicago police station. Plaintiffs further alleged that Officers Lepine and Glowacki falsely accused them of possessing a controlled substance, ecstasy, and then maliciously prosecuted them for the crime of conspiracy to manufacture or deliver a controlled substance. After a three-day trial, the jury rendered a verdict in favor of defendants on all claims. Before the court are plaintiffs' motions to vacate judgment pursuant to Federal Rule of Civil Procedure 60(b)(3) or, in the alternative, for a new trial pursuant to Federal Rule of Civil Procedure 59(a), arguing that defense counsel committed misconduct during closing statements and during the cross-examination of plaintiffs that severely prejudiced the presentation of plaintiffs' case. Plaintiffs and defendants have both filed motions for sanctions against their opponent. See Dkt. #64, 69. For the following reasons, plaintiffs' motions for a new trial and to set aside judgment are denied. Plaintiffs' motion for sanctions is denied. Defendants' motion for sanctions is denied.


Federal Rule of Civil Procedure 60(b)(3) authorizes the court to relieve a party from a final judgment for " . . . misrepresentation, or misconduct by an opposing party." A party moving for relief under Rule 60(b)(3) must prove that: (1) it presented a meritorious claim at trial, and (2) because of fraud, misrepresentation, or misconduct of the adverse party, (3) it was not ably to fully and fairly present its case at trial. Wickens v. Shell Oil Co., 620 F.3d 747, 758--59 (7th Cir. 2010); Lonsdorf v. Seefeldt, 47 F.3d 893, 897 (7th Cir. 1995). Rule 60(b)(3) applies to both intentional and unintentional misrepresentations. Lonsdorf, 47 F.3d at 897. "In considering these requirements, a court must weigh the competing policy interests of the finality of judgment against fundamental fairness in light of all the facts." Id. A plaintiff requesting relief under Rule 60(b)(3) "need show only that [the misconduct] affected his ability to present his case, not that he would have won had the . . . misconduct not occurred." Ty Inc. v. Softbelly's, Inc., 353 F.3d 528, 536 (7th Cir. 2003).

Federal Rule of Civil Procedure 59(a) permits the court, "on motion, [to] grant a new trial on all or some of the issues -- and to any party -- . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). When the moving party has requested a new trial because of attorney misconduct, the court's inquiry under Rule 59(a) is similar to its inquiry under Rule 60(b)(3).*fn1 See Wharf v. Burlington Northern R. Co., 60 F.3d 631, 637 (9th Cir. 1995) ("The standards for granting new trials are essentially the same under both rules, although a Rule 59 motion, because it must be made within 10 days, may require a slightly lower showing than a motion under Rule 60.");*fn2 White v. Anthology, Inc., No. 08 C 1371, 2009 WL 4215096, at *2 (N.D. Ill. Nov. 16, 2009) ("Neither side suggests that the standard for determining a motion for new trial based on introduction of false testimony differs from that for determining a motion to vacate a judgment under Rule 60(b)(3) on those grounds, so the Court will apply the same standard."); United States v. Cinergy Corp., No. 1:99-cv-1693-LJM-JMS, 2008 WL 7679914, at *11 (S.D. Ind. Dec. 18, 2008) (analyzing motion filed under Rule 59(a) using the standard articulated by the Seventh Circuit for Rule 60(b)(3)). The court will grant a new trial where "the trial was not fair to the party moving." Davis v. FMC Corp., Food Processing Mach. Div., 771 F.2d 224, 232--33 (7th Cir. 1985). "The misconduct of counsel . . . justifies a new trial where that misconduct prejudiced the adverse party." Id. at 233 (quoting Wiedemann v. Galiano, 722 F.2d 335, 337 (7th Cir. 1983)); Falk v. Paluch, 163 F.R.D. 8, 9 (N.D. Ill. 1995). In assessing whether the misconduct prejudiced the jury's decision, the court's inquiry is limited by Federal Rule of Evidence 606(b), which prohibits a juror from testifying regarding deliberations or any mental and emotional reactions that occurred during deliberations. Wiedemann, 722 F.2d at 337.


The court will examine plaintiffs' Rule 60(b)(3) and 59(a) motions together, as plaintiffs rely on identical arguments in support of each motion and the applicable legal standards are substantially the same. Plaintiffs first assert that defense counsel improperly led the jury to believe that plaintiffs were gang members and drug dealers by making a prejudicial speaking objection during plaintiffs' rebuttal closing statement. The transcript reflects the following exchange between plaintiffs' counsel, defense counsel, and the court:

MS. DYMKAR: Each one of these plaintiffs' witnesses, including the plaintiffs, got on the stand and told you who they are. They're working people. They're honest people. You didn't hear anything about anybody having a criminal record or background or anything negative about anybody. They came and told you the truth. . . . And the ridicule that [defense counsel] gives about this neighborhood. If these kids were bad kids, you'd know. He would have wanted you to know that they were doing drugs and were gang bangers and they were doing drugs and --

MR. NOWICKI: Objection, your Honor. We're not allowed to introduce that, and counsel knows that. She threw that in the opening close, and she threw it in again. We can't bring that to the jury.

MS. DYMKAR: Your Honor, I object to that statement. There is nothing here.

THE COURT: All right. I overrule the objection. Go ahead.

MS. DYMKAR: Thank you. If there were negative things, you would have heard about them. We have got positive things. Good family, church, jobs, and he's complaining about that. He said this is embellishing.

01/13/11 Tr. at 23:11--24:11. Defense counsel's speaking objection was highly improper because counsel had no evidence that plaintiffs were "gang bangers" or "doing drugs," but it implied the contrary: that there was evidence regarding plaintiffs' prior criminal activities that had been excluded from evidence. Moreover, the statement was not true, as the court had not excluded evidence of either plaintiff's activities of this sort.

This court is not persuaded, however, that defense counsel's misconduct prejudiced plaintiffs such that they were not able to fully and fairly present their case at trial. See Lonsdorf, 47 F.3d at 897 (discussing Rule 60(b)(2)); Davis, 771 F.2d at 233 (discussing Rule 59(a)). The misconduct occurred during closing argument. It did not interfere with the presentation of plaintiffs' evidence, nor was it false evidence or incorrect legal argument that was left uncorrected during the course of trial. Compare with Ty Inc., 353 F.3d at 536 (witness tampering); Lonsdorf, 47 F.3d at 897 (presentation of altered document); Davis, 771 F.2d at 233--34 (defendant impermissibly argued contribution between joint tortfeasors, and verdict showed that the jury had been confused); White, 2009 WL 4215096, at *1--2 (false testimony); Cinergy Corp., 2008 WL 7679914, at *11--12 (defendant's non-disclosure of consulting relationship with former employee- witness while relying on theme that the opponent's witnesses were paid expert witnesses in contrast to the defendant's own employee- and former employee-witnesses). Ms. Dymkar immediately objected to the objection and announced, "There is nothing here." After Mr. Nowicki's objection was overruled, Ms. Dymkar continued, "If there were negative things, you would have heard about them." The court's ruling and plaintiffs' counsel's additional statements mitigated the prejudice that resulted from defense counsel's objection. See Soltys v. Costello, 520 F.3d 737, 745 (7th Cir. 2008) ("[I]mproper comments during closing argument rarely rise to the level of reversible error. . . . [C]urative instructions to the jury mitigate harm that may otherwise have resulted from improper comments during closing argument." (quotations and citations omitted)); Gruca v. Alpha Therapeutic Corp., 51 F.3d 638, 644 (7th Cir. 1995) ...

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