United States District Court, D. Massachusetts
ORDER ON PLAINTIFF'S MOTION FOR A MISTRIAL AND
FOR A NEW TRIAL
Gail Dein, United States Magistrate Judge.
matter is before the court on plaintiff, David Butler's
(“Butler”), “Motion for Mistrial and for a
New Trial under F.R.C.P. 59” (Docket No. 196) in which
plaintiff argues that a mistrial should be declared and a new
trial is warranted because the jury improperly disregarded
this court's instructions on the Jury Verdict Form
(“Verdict Form”) and that as a matter of law the
jury should have answered a question on the verdict form that
it did not. After consideration of the parties' written
submissions, the motion is DENIED.
motion was filed five days after the conclusion of a two week
jury trial. The single claim tried was for breach of contract
to negotiate under Washington law for which plaintiff sought
expectation damages only. The parties agreed that, under
Washington law, to recover the expectation damages that the
plaintiff was seeking, the plaintiff needed to prove by a
preponderance of the evidence that the defendant breached the
contract to negotiate by failing to negotiate in good faith;
that had it not been for the defendant's failure to
negotiate in good faith, the parties would have entered into
a final purchase agreement; and what the terms of that final
purchase agreement would have been. See Columbia Park
Golf Course, Inc. v. City of Kennewick, 160 Wash.App.
66, 82-87, 248 P.3d 1067, 1076-78 (2011).
Verdict Form, which was approved by counsel prior to its
presentation to the jury, memorialized that law over the
course of three questions. Question 1 stated “Did Mr.
Butler prove by a preponderance of the evidence that Mr.
Balolia breached the Letter of Intent by failing to negotiate
in good faith toward the formation of a Purchase
Agreement?” Question 2 stated “Did Mr. Butler
prove by a preponderance of the evidence (1) that had it not
been for Mr. Balolia's failure to negotiate in good
faith, the parties would have entered into a final purchase
agreement, and (2) what the terms of that final purchase
agreement would have been?” Question 3 asked the jury
to state “the amount of damages that Mr. Butler is
entitled to recover.” The Verdict Form's
instructions required the jury to find a unanimous
“YES” on Question 1 before the jury proceeded to
answer Question 2 and then required a unanimous
“YES” on Question 2 before the jury proceeded to
court charged the jury on November 1, 2017. On November 2,
the jury sent a question to this court asking what would
happen if the jury could not reach a unanimous verdict on
Question 1. (Draft Tr. Day 9, p. 1 at 9-11). With the
approval of counsel, the court answered that if no unanimous
verdict were to be reached at the end of deliberations, the
court would declare a mistrial, the jury would be discharged,
and the case could be retried. (Id., p. 12 at 25
through p. 13 at 1). The court then instructed the jury to
continue its deliberations. (Id., p. 13 at 2-4).
Later that day, the jury sent this court a note indicating
that they were frustrated and “getting nowhere.”
(Id., p. 17 at 12-16). In response, and with the
approval of counsel for the parties, this court provided the
jury with the Allen charge. (Id., p. 18 at
10-15; p. 20 at 16-25 through p. 23 at 5). On the morning of
November 3, the jury sent the following question to this
court: “We understand that we only answer question two
if we are unanimous on question one. But are there any
options to be divided on [question] one but unanimous on
[question] two?” (Draft Tr. Day 10, p. 3 at 14-16).
After excusing the jury from the courtroom, this court read
the jury's question to counsel for the parties and had a
full discussion with counsel, which included the following
statements by plaintiff's counsel:
THE COURT: [I]f it's a unanimous no on two, then that
ends it. But if it's a unanimous yes on two, they still
need to reach one. Do you want me to tell them that?
MR. LAMBERT: I think that's what you have to tell them,
Your Honor . . . .
. . . .
THE COURT: [A]t this point is everybody agreed if they say no
on two, they don't have to go back and work out one?
MR. LAMBERT: Yes.
(Id., p. 3 at 17-23; p. 4 at 24-25 through p. 5 at
2). Accordingly, this court instructed the jury, in response
to its question, as follows:
[Y]ou can go to question two. If there's a unanimous no
on question two, you're done. Sign the verdict form, and
you don't need to go back to question one. If you're
a unanimous yes on question two, you need to go back to
question one. And if you're a unanimous yes on one and
two - you need to be unanimous yes on one and two to get to
the damages amount in question three. So does that make
(Id. p. 6 at 9-16). To which, the record reflects
that everybody nodded. (Id. p. 6 at
Not only did counsel for plaintiff not object to this
instruction, but, as described above, he expressly approved
the instruction and procedure.
jury returned a verdict later that day, reaching a unanimous
“NO” on Question 2 and having not reached a
unanimous decision on Question 1. Counsel for plaintiff did
not raise an objection as to the verdict at that time. Before
discharging the jury, this court asked whether counsel had
any comments. (Id. p. 8 at 24). ...