Franklin-Mason v. Johnson

District of Columbia, dcd-1:2003-cv-00945

MOTION in Limine by B.J. PENN

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN-MASON,)) Plaintiff,)) v.) Civil Action No. 03-00945 RWR/JMF) RAY MABUS) Secretary of the Navy,)) Defendant.)) MOTION IN LIMINE AND SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES Defendant files this motion in limine in advance of the trial of this case, which is scheduled to commence June 11, 2012. For the reasons set forth below, defendant moves the Court: 1. To seat a jury of twelve; and 2. To direct that plaintiff not argue to the jury, as a basis for liability in this case, that defendant breached the settlement agreement in plaintiff's earlier case, 96cv02505. Nature Of The Case This case was filed in 2003. It is, however, related to an earlier case, Roxann J. Franklin-Mason v. John H. Dalton, Secretary of the Navy, 96cv2505 RWR/JMF. In the earlier case, plaintiff contended that she was discriminated against on the basis of her race (African-American) and gender when she was constructively discharged from the Military Sealift Command in 1989. The earlier case was settled by a stipulation of settlement whereby, among other relief, plaintiff was instated as a GS 13, Step 10, employee of the Naval Fleet Auxiliary Force (PM-1), a part of the Military Sealift Command, at the Washington Navy Yard. After her reinstatement, plaintiff filed four motions to enforce the settlement agreement that was entered in 96cv2505. An evidentiary hearing on the motions was held on February 2 through 5, 2005, and April 8, 2005, and a report and recommendation was rendered by the Magistrate Judge presiding over the hearing. That case has, however, been dismissed by the Court on jurisdictional grounds, and it is now on appeal. The complaint in this case was filed on April 28, 2003. It contained two counts. Count I asserted that defendant had retaliated against Ms. Franklin-Mason because she had sought to enforce the settlement agreement reached in her earlier case. The acts of alleged retaliation are set forth in ¶¶ 13 through 20. None allege that the breach of the settlement agreement in the earlier case was an act of retalia- tion against plaintiff. Count II, however, does contain such an allegation: 27. Ms. Franklin-Mason further alleges that Defendant breached the settlement agreement it entered into with Ms. Franklin-Mason to resolve Case No. 96-CV-2505. 2 Ms. Franklin-Mason filed three motions to enforce the settlement agreement and filed the last motion on or about November 9, 2001, in Case No. 96-CV-2505. Defendant continues to be in breach of the settlement agreement and refuses to abide by or enforce the terms of the agreement in an effort to retaliate against Ms. Franklin-Mason for filing her earlier complaints. Ms. Franklin-Mason seeks relief and damages for Defen- dant's continuing breach of its obligations under the Agreement. A status conference was held on December 22, 2004. At that status conference, plaintiff dismissed Count II of the complaint without prejudice. Docket minute entry for October 22, 2004. The Size Of The Jury Defendant requests that the Court seat a jury panel numbering twelve individuals. Under Fed. R. Civ. P. 48, the Court "shall seat a jury of not fewer than six and not more than twelve members. . . ." Until 1970, it was assumed that the Constitution required a jury of twelve, since that number had been found in the English jury trial since the 1400's. Williams v. Florida, 399 U.S. 78 (1970), was decided that year, and it held, relying in part on certain social science studies, that a six-member jury did not violate a criminal defendant's Sixth Amendment right to a jury trial. 3 Williams was followed in 1973 by Colgrove v. Battin, 413 U.S. 149 (1973), which held that a jury of six satisfies the Seventh Amendment's guarantee of trial by jury in civil cases. Justice Marshall, joined by Justice Stewart, dissented, rely- ing in part on a recent social science study that had drawn into question whether a six-person jury was as effective in small-group decision-making as a twelve- person jury. 413 U.S. at 166 n.1. The final case in the trilogy, Ballew v. Georgia, 435 U.S. 223 (1978), held that a criminal defendant's trial before a jury of less than six deprived him of his right to a jury trial guaranteed by the Sixth and Four- teenth Amendments. Justice Blackmun announced the judgment of the Court in Ballew and delivered an opinion that relied on scholarly work that had called into question the studies that the Court had earlier relied on in Williams. The more recent scholarly work had found that a positive correlation exists between group size (up to twenty group members) and the quality of both group performance and group productivity. 435 U.S. at 232-33. Williams, however, was not overruled, and it remains the law. Since the Williams decision, scholars have been extremely critical of its rationale and the "experiments" that it relied on. Comment, "Six Of One Is Not A Dozen Of The Other: A Reexamination of Williams v. Florida And The Size Of State Criminal Juries," 146 U. Pa. L. Rev. 621, at note 163 (1998). There seems 4 little doubt today that a jury of the traditional size (twelve) is superior in small- group decision-making to a jury of six, as well as resulting in a jury that better reflects the diversity of the community. This is reflected in a 1995 comment from Judge Patrick E. Higginbotham of the Fifth Circuit, then the chairman of the Judicial Conference's Advisory Committee on Civil Rules: A lot has been written about the Judicial Conference decision in 1971 to reduce juries from 12 to 6 persons in civil cases. Virtually all scholarly writings on this subject have criticized 6-person juries. In an insightful article in the Hofstra Law Review, Chief Judge Richard S. Arnold (8th Cir.) forcefully argues for a return to the 12-person jury. Arnold highlights the historical reasons embedded in common law for 12-person juries and identifies the most glaring defect of 6-person juries. Statistical analysis and real life experience have demonstrated that 6-person juries are unquestionably less likely than 12-person juries to include minority representation. A 12-person jury can better reflect community attitudes and experience. Other commentators also have shown that 6- person juries have produced inferior deliberations and more inconsistent jury decisions. The Third Branch, February 1995 issue (www.uscourts.gov/ttb). In light of the above, the Court should seat a jury of 12-persons, which it is authorized to do by Fed. R. Civ. P. 48(a). 5 The Role Of The Settlement Agreement At The Trial It will be necessary to refer to the settlement agreement at trial in connection with some of the events that plaintiff alleges were retaliatory. The jury should be instructed, however, that the issue of whether defendant breached the settlement agreement is not before them (i.e., it is being litigated in a different case) and should not be part of their deliberations. Additionally, plaintiff should be directed not to argue to the jury about the aspects of the alleged breach of the settlement agreement that are unrelated to plaintiff's actual work at the Naval Fleet Auxiliary Force after her reinstatement, such as, for example, whether plaintiff's TSP account was calculated properly. Conclusion For the reasons set forth above, the Court should seat a jury of 12 and plaintiff should not be permitted to argue to the jury that, in its deliberations, it should decide whether defendant breached the settlement agreement. Attached is a draft order reflecting the requested relief. Respectfully submitted, RONALD C. MACHEN JR., D.C. Bar #447889 United States Attorney for the District of Columbia 6 DANIEL F. VAN HORN, D.C. Bar #924092 Acting Civil Chief /s/ Fred E. Haynes FRED E. HAYNES, D.C. Bar #165654 Assistant United States Attorney 555 Fourth Street, N.W., Room E-4110 Washington, D.C. 20530 202.514.7201 fred.haynes@usdoj.gov 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN-MASON,)) Plaintiff,)) v.) Civil Action No. 03-00945 RWR/JMF) RAY MABUS) Secretary of the Navy,)) Defendant.)) ORDER UPON CONSIDERATION of the motion in limine filed by defendant and the response thereto, it is this _____ day of _____________, 2012, ORDERED that the motion is granted; and it is further ORDERED that a jury of 12 will be seated; and it is further ORDERED that the jury will be instructed that the issue of whether defendant breached the settlement agreement in 96-cv-02505 is not before them and should not be a consideration in their deliberations; and it is further ORDERED that plaintiff shall not argue to the jury that the breach of the settlement agreement as to matters unrelated to plaintiff's actual work at the Naval Fleet Auxiliary Force was an act of retaliation. UNITED STATES MAGISTRATE JUDGE 2