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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 Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 1 of 32 2   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 2 of 32 3   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 3 of 32 4   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 4 of 32 5   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 5 of 32 6   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 6 of 32 7   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 7 of 32 8   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 8 of 32 9   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 9 of 32 10   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 10 of 32 11   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 11 of 32 12   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 12 of 32 13   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 13 of 32 14   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 14 of 32 15   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 15 of 32 16   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 16 of 32 17   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 17 of 32 18   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 18 of 32 19   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 19 of 32 20   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 20 of 32 21   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 21 of 32 22   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 22 of 32 23   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 23 of 32 24   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 24 of 32 25   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 25 of 32 26   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 26 of 32 27   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 27 of 32 28   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 28 of 32 29   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 29 of 32 30   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 30 of 32 31   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 31 of 32 32   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. Case No. 1:21-cv-02063-CNS-SBP Document 285 filed 11/02/23 USDC Colorado pg 32 of 32