HomeMy WebLinkAbout2021-cv-2063-CNS-MEH - City Of Fort Collins V. Open International, Et Al. - 285 - Jury Instructions1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 21-cv-02063-CNS-SBP
CITY OF FORT COLLINS,
Plaintiff,
v.
OPEN INTERNATIONAL, LLC,
Defendant/Counterclaim Plaintiff,
and
OPEN INVESTMENTS, LLC,
Defendant.
JURY INSTRUCTIONS
PART I. GENERAL CLOSING INSTRUCTIONS; FRAUDULENT INDUCEMENT AND
NEGLIGENT MISREPRESENTATION INSTRUCTIONS
Final Jury Instructions given
11/2/2023
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Instruction No. 1
General Introduction
Now that you have heard the evidence, it is my duty to instruct you about the applicable
law. It is your duty to follow the law as I will state it. You must apply the law to the facts as you
find them from the evidence in the case. Do not single out one instruction as stating the law but
consider the instructions as a whole. Do not be concerned about the wisdom of any rule of law
stated by me. You must follow and apply the law.
The lawyers may have properly referred to some of the governing rules of law in their
arguments. If there is any difference between the law stated by the lawyers and these
instructions, you must follow my instructions.
Nothing I say in these instructions indicates I have any opinion about the facts. You, not
I, have the duty to determine the facts.
You must perform your duties as jurors without bias or prejudice as to any party. The law
does not permit you to be controlled by sympathy, prejudice, or public opinion. All parties
expect that you will carefully and impartially consider all the evidence, follow the law as it is
now being given to you, and reach a just verdict, regardless of the consequences.
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Instruction No. 2
Equal Parties
You should consider and decide this case as a dispute between persons of equal standing
in the community, of equal worth, and holding the same or similar stations in life. A
governmental entity and limited liability company are entitled to the same fair trial as a private
individual. All persons, including governmental entities, limited liability companies, and other
organizations stand equal before the law, and are to be treated as equals.
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Instruction No. 3
Entity Acts Through Individuals
The City of Fort Collins is a municipality and can act only through its agents and
employees. Any act or omission of its employees while acting within the scope of his or her
employment is the act or omission of the City of Fort Collins.
Open is a limited liability company and can act only through its members, executives,
agents, and employees. Any act or omission of its members, executives, agents, and employees
while acting within the scope of his or her employment is the act or omission of Open.
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Instruction No. 4
Burden of Proof—Preponderance of the Evidence
1. The City has the burden of proving each of its claims, and its affirmative defenses to
Open’s counterclaim, by a preponderance of the evidence.
2. Open has the burden of proving its counterclaim, and its affirmative defenses to the
City’s claims, by a preponderance of the evidence.
3. To prove something by a “preponderance of the evidence” means to prove that it is
more probably true than not.
4. “Burden of proof” means the obligation that a party has to prove its claims or defenses
by a preponderance of the evidence. The party with the burden of proof can use evidence
produced by any party to persuade you.
5. If a party fails to meet its burden of proof as to any claim or defense or if the evidence
weighs so evenly that you are unable to say that there is a preponderance on either side, you must
reject that claim or defense.
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Instruction No. 5
Direct and Circumstantial Evidence
Generally speaking, there are two types of evidence presented during a trial—direct
evidence and circumstantial evidence. “Direct evidence” is the testimony of a person who asserts
or claims to have actual knowledge of a fact, such as an eyewitness. “Indirect or circumstantial”
evidence is proof of a chain of facts and circumstances indicating the existence or nonexistence
of a fact.
The law generally makes no distinction between the weight or value to be given to either
direct or circumstantial evidence. A greater degree of certainty is not required of circumstantial
evidence. You are required to find the facts in accordance with the preponderance of all the
evidence in the case, both direct and circumstantial.
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Instruction No. 6
Inferences
You are to consider only the evidence in the case. However, you are not limited to the
statements of the witnesses. You may draw from the facts you find have been proved such
reasonable inferences as seem justified in light of your experience.
“Inferences” are deductions or conclusions that reason and common sense lead you to
draw from facts established by the evidence in the case.
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Instruction No. 7
No Speculation
Any finding of fact you make must be based on probabilities, not possibilities. You
should not guess or speculate about a fact.
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Instruction No. 8
Exhibits
The lawyers for both Parties have highlighted certain parts of some large exhibits, such as
the Master Professional Services Agreement. However, it is for you to determine the significance
of the highlighted parts.
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Instruction No. 9
Charts and Summaries
Charts and summaries have been shown to you in order to help explain facts disclosed by
books, records, and other documents in evidence in the case. These charts or summaries are not
themselves evidence or proof of any facts. If the charts or summaries do not correctly reflect facts
or figures shown by the evidence in the case, you should disregard them.
The charts and summaries are used only as a matter of convenience. To the extent that you
find they are not truthful summaries of facts or figures shown by the evidence in the case, you are
to disregard them entirely.
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Instruction No. 10
Official Translation
Spanish-language written evidence may be introduced during this trial. If a translation of
the Spanish-language materials is used, you are to consider only that evidence provided through
certified translation admitted into evidence. Although some of you may know the language used,
it is important that all jurors consider the same evidence. Therefore, you must base your decision
on the evidence presented in the English translation and disregard any different meaning
presented outside of the evidence and testimony during the trial.
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Instruction No. 11
Expert Witnesses
The rules of evidence ordinarily do not permit witnesses to testify as to opinions or
conclusions. There is an exception to this rule for “expert witnesses.” An expert witness is a
person who by education, experience, and/or training has become expert in some art, science,
profession, or calling. Expert witnesses state their opinions as to matters in which they profess to
be expert and may also state their reasons for their opinions.
You should consider each expert opinion received in evidence in this case and give it
such weight as you think it deserves. If you should decide the opinion of an expert witness is not
based upon sufficient education, experience, and/or training, or if you should conclude the
reasons given in support of the opinion are not sound, or if you feel the expert’s opinion is
outweighed by other evidence, you may disregard the opinion entirely.
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Instruction No. 12
Witness Testimony—Discrepancies in Testimony
You are the sole judges of the credibility of the witnesses and the weight their testimony
deserves. You may be guided by the appearance and conduct of a witness, or by the manner in
which a witness testifies, or by the character of the testimony given, or by evidence contrary to
the testimony.
You should carefully examine all the testimony given, the circumstances under which
each witness has testified, and every matter in evidence tending to show whether a witness is
worthy of belief. Consider each witness’ intelligence, motive and state of mind, and demeanor or
manner while testifying.
Consider the witness’s ability to observe the matters as to which the witness has testified,
and whether the witness impresses you as having an accurate recollection of these matters. Also,
consider any relation each witness may have with either side of the case, the manner in which
each witness might be affected by the verdict, and the extent to which the testimony of each
witness is either supported or contradicted by other evidence in the case.
Inconsistencies or discrepancies in the testimony of a witness, or between the testimony
of different witnesses may or may not cause you to discredit such testimony. Two or more
persons seeing an event may see or hear it differently.
In weighing the effect of a discrepancy, always consider whether it pertains to a matter of
importance or an unimportant detail, and whether the discrepancy results from innocent error or
intentional falsehood.
After making your own judgment, you will give the testimony of each witness such
weight, if any, that you may think it deserves. In short, you may accept or reject the testimony of
any witness, in whole or in part.
In addition, the weight of the evidence is not necessarily determined by the number of
witnesses testifying to the existence or nonexistence of any fact. You may find that the testimony
of a small number of witnesses as to any fact is more credible than the testimony of a larger
number of witnesses to the contrary.
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Instruction No. 13
Impeachment—Inconsistent Statement or Conduct
A witness may be discredited or impeached by contradictory evidence or by evidence that
at some other time the witness has said or done something, or has failed to say or do something
that is inconsistent with the witness’ present testimony.
If you believe any witness has been impeached and thus discredited, you may give the
testimony of that witness such credibility, if any, you think it deserves.
If a witness is shown knowingly to have testified falsely about any material matter, you
have a right to distrust such witness’s other testimony and you may reject all the testimony of
that witness or give it such credibility as you may think it deserves.
An act or omission is “knowingly” done, if the act is done voluntarily and intentionally,
and not because of mistake or accident or other innocent reason.
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Instruction No. 14
Use of Depositions as Evidence
During the trial, certain testimony has been presented by way of deposition. The
deposition consisted of sworn, recorded answers to questions asked of the witness in advance of
the trial by attorneys for the parties to the case. The testimony of a witness who, for some reason,
is not present to testify from the witness stand may be presented in writing under oath or on a
videotape. Such testimony is entitled to the same consideration and is to be judged as to
credibility, and weighed, and otherwise considered by you, insofar as possible, in the same way
as if the witness had been present and had testified from the witness stand.
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Instruction No. 15
Elements of Liability—Fraudulent Inducement
For the City to recover from Open on its claim of fraudulent inducement, you must find
all of the following have been proved by a preponderance of the evidence:
1. Open made a false representation of a past or present fact to the City during the
request for proposal process;
2. The fact was material;
3. At the time the representation was made, Open knew that the representation was false:
4. Open made the representation with the intent that the City would rely on the
representation;
5. The City relied on Open’s representation;
6. The City’s reliance was justified; and
7. This reliance caused damages or losses to the City.
If you find that any one or more of the above statements has not been proved, then your
verdict must be for Open.
On the other hand, if you find that all of the above statements have been proved, then you
must consider whether Open has proved its affirmative defenses of waiver (Instruction No. 23)
and statute of limitations (Instruction No. 24).
If you find that any one or more of Open’s affirmative defenses has been proved by a
preponderance of the evidence, then your verdict must be for Open.
However, if you find that none of Open’s affirmative defenses have been proved, then
your verdict must be for the City.
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Instruction No. 16
False Representation—Defined
A false representation is any oral or written words, conduct, or combination of words and
conduct that creates an untrue or misleading impression in the mind of another.
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Instruction No. 17
Material Fact—Defined
A fact is material if a reasonable person under the circumstances would regard it as
important in deciding what to do.
A fact may also be material even though a reasonable person might not regard it as
important, if the person stating it knows that the person receiving the information would regard it
as important in deciding what to do.
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Instruction No. 18
Statements of Future Intention or Promises as False Representations
A promise to do something in the future is a false representation if the person making the
promise did not intend to keep the promise when the promise was made.
Similarly, a statement of intent to do something in the future is a false representation if
the person making the statement did not intend to do it when the statement was made.
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Instruction No. 19
Reliance—Defined
The City relied on Open’s representation if it believed it was true, and based on that
representation took an action it otherwise would not have taken.
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Instruction No. 20
Justifiable Reliance—Defined
The City would be justified in assuming that a representation was true if you find that a
similarly situated entity, with similar experience, would rely on that representation.
The City was under no duty to investigate that representation unless you find that:
1. The City knew specific facts that would cause a similarly situated entity, with similar
experience, to be suspicious and investigate; and
2. The City had a reasonable opportunity to investigate.
A representation is not the cause of the City’s damages if the City substantially relied and
acted on its own investigation rather than on Open’s representation.
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Instruction No. 21
Elements of Liability—Negligent Misrepresentation
For the City to recover from Open on its claim of negligent misrepresentation, you must
find all of the following have been proved by a preponderance of the evidence:
1. Open gave false information to the City;
2. Open gave such information to the City in the course of Open’s business or for a
transaction in which Open had a financial interest;
3. Open gave the information to the City for the guidance or use of the City in a business
transaction;
4. Open was negligent in obtaining or communicating the information;
5. Open gave the information with the intent or knowing that the City would act in
reliance on the information;
6. The City relied on the information supplied by Open; and
7. This reliance on the information supplied by Open caused damage to the City.
If you find that any one or more of the above statements has not been proved, then your
verdict must be for Open.
On the other hand, if you find that all of the above statements have been proved, then you
must consider whether Open has proved its affirmative defenses of waiver (Instruction No. 23)
and statute of limitations (Instruction No. 25).
If you find that any one or more of Open’s affirmative defenses has been proved by a
preponderance of the evidence, then your verdict must be for Open.
However, if you find that none of Open’s affirmative defenses have been proved, then
your verdict must be for the City.
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Instruction No. 22
Negligence—Defined
Negligence means either failing to do an act that a reasonably careful person or entity
would do, or doing an act which a reasonably careful person or entity would not do, under the
same or similar circumstances to protect oneself or itself from financial loss.
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Instruction No. 23
Affirmative Defense to Fraudulent Inducement and Negligent Misrepresentation Claims—
Waiver
Open is not legally responsible to the City on its claims of fraudulent inducement or
negligent misrepresentation if the affirmative defense of waiver is proved. This defense is proved
if you find both of the following:
1. The City learned the actual or true facts after it began the project with Open, but before
it ceased the project with Open; and
2. The City continued the project with Open with full knowledge of the actual facts when
a reasonable person under the same or similar circumstances would not have done so.
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Instruction No. 24
Affirmative Defense to Fraudulent Inducement Claim—Statute of Limitations
Open is not legally responsible on the City’s claim of fraudulent inducement if the
affirmative defense of the expiration of the statute of limitations is proved. This defense is proved
if you find both the following:
1. The events that constituted the claimed fraudulent inducement occurred before July 2,
2018; and
2. The City knew, or should have known, with the exercise of reasonable diligence, of the
existence of the claimed fraudulent inducement before July 2, 2018.
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Instruction No. 25
Affirmative Defense to Negligent Misrepresentation Claim—Statute of Limitations
Open is not legally responsible on the City’s claim of negligent misrepresentation if the
affirmative defense of the expiration of the statute of limitations is proved. This defense is proved
if you find both the following:
1. The events that constituted the claimed negligent misrepresentation occurred before
July 2, 2019; and
2. The City knew, or should have known, with the exercise of reasonable diligence, of the
existence of the claimed negligent misrepresentation before July 2, 2019.
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Instruction No. 26
Use of Notes
You may use the notes taken by you during the trial. However, the notes should not be
substituted for your memory. Remember, notes are not evidence. If your memory should differ
from your notes, then you should rely on your memory and not on your notes.
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Instruction No. 27
Juror Use of Electronic Communication Technologies
During your deliberations, you must not communicate with or provide any information to
anyone by any means about this case. You may not use any electronic device or media, the
Internet, any Internet service, any text or instant messaging service to communicate to anyone
any information about this case or to conduct any research about this case until I accept your
verdict. In other words, you cannot communicate with anyone about this case. You can only
discuss the case in the jury room with your fellow jurors during deliberations. In our judicial
system, it is important that you are not influenced by anything or anyone outside of this
courtroom. I expect you will inform me as soon as you become aware of another juror’s violation
of these instructions.
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Instruction No. 28
Communications Between Court and Jury During Deliberations
If it becomes necessary during your deliberations to communicate with me, you may send
a note by a bailiff, signed by your foreperson or by one or more members of the jury. No
member of the jury should ever attempt to communicate with me by any means other than a
signed writing. I will never communicate with any member of the jury on any subject touching
the merits of the case otherwise than in writing, or orally here in open court.
From the oath about to be taken by the bailiffs you will note that they too, as well as all
other persons, are forbidden to communicate in any way or manner with any member of the jury
on any subject touching the merits of the case.
Bear in mind also that you are never to reveal to any person—not even to me—how the
jury stands, numerically or otherwise, on the questions before you, until after you have reached a
unanimous verdict.
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Instruction No. 29
Instructions in the Verdict Form
Nothing said in these instructions and nothing in any verdict form prepared for your
convenience is meant to suggest or convey in any way or manner any suggestion or hint as to
what verdict I think you should find. What the verdict shall be is your sole and exclusive duty
and responsibility.
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Instruction No. 30
Duty to Deliberate
The verdict must represent the considered judgment of each of you. In order to return a
verdict, it is necessary that each juror agree. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another, and to deliberate with a view to
reaching an agreement, if you can do so without disregard of individual judgment. You must
each decide the case for yourself, but only after an impartial consideration of the evidence in the
case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine
your own views, and change your opinion, if convinced it is erroneous. But do not surrender
your honest conviction as to the weight or effect of evidence, solely because of the opinion of
your fellow jurors, or for the mere purpose of returning a verdict.
Remember at all times that you are not partisans. You are judges—judges of the facts.
Your sole interest is to seek the truth from the evidence in the case.
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Instruction No. 31
Election of Foreperson; Duty to Deliberate; Communications with Court; Unanimous
Verdict; Verdict Form
You must follow these rules while deliberating and returning your verdict:
First, when you go to the jury room, you must select a foreperson. The foreperson will
preside over your discussions and speak for you here in court.
Second, it is your duty, as jurors, to discuss this case with one another in the jury and try
to reach agreement.
Each of you must make your own conscientious decision, but only after you have
considered all the evidence, discussed it fully with the other jurors, and listened to the views of
the other jurors.
Do not be afraid to change your opinions if the discussion persuades you that you should.
But do not make a decision simply because other jurors think it is right, or simply to reach a
verdict. Remember at all times that you are judges of the facts. Your sole interest is to seek the
truth from the evidence in the case.
Third, if you need to communicate with me during your deliberations, you may send a
note to me through my clerk, signed by one or more jurors. I will respond as soon as possible
either in writing or orally in open court. Remember you should not tell anyone—including me—
how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the law I have given to
you in these instructions. The verdict must be unanimous. Nothing I have said or done is
intended to suggest what your verdict should be—that is entirely for you to decide.
Finally, the verdict form is simply the written notice of the decision that you reach in this
case. [The form reads: [quote]]. You will take this form to the jury room, and when each of you
has agreed on the verdict, your foreperson will fill in the form, sign and date it, and advise my
clerk that you are ready to return to the
courtroom.
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