the other hand, plaintiffs offered credible evidence that Brennan and Moore had routine oversight of proposals like that from the New York office, and there was evidence that materials routed to them in the course of COINTELPRO ordinarily did not mention them by name, but were simply referenced "COINTELPRO" and addressed formally to the "DIRECTOR, FBI." Plaintiffs also argued that defendants assigned to WFO might have participated in plans to distribute the leaflet prepared in New York, since the New York agents clearly intended that they do so. The proof of liability for any injuries attributable to exhibit 31A was also circumstantial. But plaintiffs' theory of defendants' involvement, at least at the headquarters level, was consistent with the strong evidence of the headquarters defendants' involvement in similar COINTELPRO schemes. And, if the jury believed plaintiffs' assertions that the headquarters defendants had been involved in consideration of exhibit 31A, then exhibits 31 and 31A would have been probative of the scope and character of the conspiracy plaintiffs alleged. Moreover, the content of exhibits 31 and 31A was not so inherently offensive as significantly to risk distortion of the jury's sense of fairness. As its base the only ground for defendants' objection to admission of exhibits 31 and 31A was that proof of their participation in the scheme the exhibits described was circumstantial rather than direct. Article Four of the Evidence Rules does not preclude introduction of circumstantial proof. Cf. Miller v. Poretsky, supra. The probative value of the exhibits outweighing any possible prejudicial impact, the Court admitted them, and cannot now say that their admission is a ground for a new trial.
VI. The motion of defendant Jones
In a motion for judgment n.o.v. stating grounds unique to his defense, defendant Jones renews his argument before trial that he was entitled to involuntary dismissal of the claims against him under Fed.R.Civ.P. 41(b) or, in the alternative, to a continuance of trial on the claims against him. In the present motion Jones contends that plaintiffs so substantially delayed service of the amended complaint naming him as a defendant that he was prejudiced in his defense, and that dismissal under Rule 41 should have occurred before trial even in the absence of affirmative evidence of prejudice.
Jones was not named as a defendant in the first complaint filed by plaintiffs in July 1976. By 1977, however, once discovery had begun, plaintiffs learned of Jones' role in the "internal security" activities of the WFO, and apparently believed him to have injured them in connection with COINTELPRO effort at the WFO. Accordingly, plaintiffs included Jones as one of the FBI defendants named in the amended complaint filed late in 1977. Plaintiffs thereupon made several attempts -- attempts whose good faith is not questioned here -- to serve Jones with the papers. First plaintiffs attempted service of Jones at the WFO; later they left the papers at his residence in the Virginia suburbs. In December 1978, Jones, pursuant to 28 C.F.R. § 50.15 (1977), requested appointment of counsel for him by the Department of Justice. The Department, granting the request, assigned the lawyer who was representing all the other FBI defendants in the case to Jones.
In 1979, defendant Jones, together with defendant Wilfred R. Schlarman, moved for dismissal of the claims against them. As Judge Pratt, to whom this case was then assigned, summarized their motion, defendants asserted that, as to themselves, "service of process was not effected upon a person of 'suitable age and discretion' at their homes in accordance with Rule 4(d)(1) of the Federal Rules of Civil Procedure. For both defendants, service was not made upon the defendants personally or upon any other individual." Hobson v. Wilson, Civil Action No. 76-1326 (D.D.C., Nov. 9, 1979), slip op. at 7. Judge Pratt granted the motion without prejudice to fresh attempts to serve process. See id. at 8; Local Rule 1-14. After the case had been reassigned to the trial judge in September 1980, the Court directed the parties to "propose a practical solution for the problem posed by the failure to effect service on a number of defendants," including defendant Jones, who had still not been served. See Order of November 14, 1980. At status calls held in late 1980 and in January 1981, the Court discussed the failure of plaintiffs to serve Jones and other defendants; however, counsel for the "served" FBI defendant declined to take any action, claiming not to represent those unserved defendants and because those defendants "are not under the personal jurisdiction of the Court." See Letter of David H. White (dated November 25, 1980), filed as Attachment to Order of December 8, 1980.
On June 21, 1981, plaintiffs perfected service of process upon defendant Jones after having successfully subpoenaed him for a deposition in this case earlier in 1981. Under Pretrial Orders then in effect, discovery in the case was to terminate at the end of July, 1981, but defendant Jones did not seek an extension of the discovery period.
Instead, on August 30, 1981, defendant Jones moved for dismissal of the claims against him inter alia for failure to prosecute. Jones argued he would be unfairly disadvantaged by trial in the fall of 1981, and that plaintiffs' failure to serve him in a more timely fashion was willful and inexcusable. On October 29, 1981, the Court denied Jones' motion to dismiss. Addressing the claim under Rule 41, the Court wrote in the Memorandum of October 29:
Jones' suggestion that the claims against him should be dismissed for failure to serve process in a timely fashion must . . . be rejected, inasmuch as he will suffer no prejudice if plaintiffs are precluded from raising any claim against him not stemming from acts already involved in the litigation against other defendants who are represented by Jones' counsel, and who were with Jones in the Federal Bureau of Investigation at the time of his allegedly unlawful conduct. Counsel for Jones is invited to submit with his pretrial brief an appropriate order concerning claims to be precluded.
Hobson v. Wilson, Civil Action No. 76-1326 (D.D.C., Oct. 29, 1981), slip op. at 5.
Jones' FBI counsel never submitted the proposed order sought by the Court. Instead, on November 17, 1981, Jones moved for reconsideration of the decision of October 29, 1981, and FBI counsel sought to withdraw from representation of Jones. The latter motion was expressly premised on a belief, supposedly based upon the language from the October 29 Memorandum quoted above, that the only reason the Court denied the Rule 41 motion was the fact that Jones shared FBI counsel with other previously-served defendants. At a status call on November 20, 1981, another member of the District of Columbia bar made a limited appearance on Jones' behalf, in the event the Court granted FBI counsel's motion, and indicated, in papers filed on the eve of trial, an intention (if he entered the case as counsel for Jones) to file a third-party complaint against the United States and to seek continuance of the trial date set in the Court's Order of August 14, 1981. The Court denied Jones' FBI counsel's motion to withdraw, informed counsel who made the limited appearance that he had leave to enter a general appearance and to appear on Jones' behalf at trial, and rejected the motion for reconsideration of the October 29 Order. Jones' FBI counsel still did not file the proposed order sought in the October 29 Order, and counsel who had made the limited appearance on Jones' behalf appeared not to take an active role in court on Jones' behalf.
In the present motion, Jones, through his FBI counsel, renews his argument that dismissal under Rule 41 was required, and asserts that denial of his motion prejudiced his defense. In the relatively unusual circumstances of this case, it may well be that plaintiffs' counsel have displayed unusual indifference to the requirements of service of process. But the Court has a larger responsibility to ensure fair and orderly trial. A defendant, positioned as defendant Jones was within the group of FBI defendants and possessing actual knowledge of the claims against him, should not exploit the technical defects of a plaintiff's service of process to force upon the Court the difficult question of whether to bar suit against him of whether to grant a continuance whose practical impact would be tantamount to the barring of suit. Jones' argument now appears to be that nothing short of complete dismissal -- or an extensive continuance -- would have sufficed, because, from the time he was dismissed from the action in late 1979 until service was perfected in the spring of 1981, he was entitled to assume plaintiffs had lost interest in prosecution of their claims against him. But the extent of the delay in service in this case requires the Court to determine, with some precision, whether Jones was in fact prejudiced by the late service of papers. See Messenger v. United States, 231 F.2d 328 (2d Cir. 1956). In a case such as this, involving common counsel and a movant who was well-placed to know of the progress of the litigation and perhaps to be involved in the defense, the Court should "assess the prejudice vel non suffered by [the movant] rather than . . . the degree of the plaintiff's 'neglect' as to that defendant." Bersch v. Drexel Firestone, Inc., 389 F. Supp. 446, 464 (S.D.N.Y. 1974), rev'd in part on other grounds, 519 F.2d 974 (2d Cir. 1975); see also Preston v. Mendlinger, 83 F.R.D. 198, 199-201 (S.D.N.Y. 1979). And, since defendant's argument is based ultimately on a claim of unfair surprise, the Court ought to examine carefully the steps Jones took once he was served with the papers in June 1981. His claim that he lost the opportunity to engage in discovery is difficult to maintain, since he did not either seek discovery beyond that already pursued by his fellow FBI defendants or request an extension of the discovery period to plan and then obtain additional discovery. And his claim that it was in a larger sense "unfair" to have put him to his proof on claims plaintiffs had taken years to develop ignores his own failure to pursue the Court's proposal in October 1981 that various claims against him be precluded. It also seems improbable that Jones could not have anticipated, prior to the eve of trial, the need to seek a continuance of trial on the claims against him.
The Court cannot find in the circumstances of Jones' defense as it developed at trial the kind of prejudice that could have justified the extreme remedy that Rule 41 sometimes permits. The policies of fairness embodied in Rule 41 must be enforced. See Link v. Wabash Railroad Co., 370 U.S. 626, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962); Anderson v. Air West, 542 F.2d 522 (9th Cir. 1976). But federal civil procedure favors disposition of claims on their merits. Keegel v. Key West Trading Co., 200 U.S.App.D.C. 319, 320-21, 627 F.2d 372, 373-74 (1979). It was not apparent from the trial that defendant Jones was in any way prejudiced in his defense: like the other four FBI defendants, Jones was ably represented by the counsel appointed for him in December 1978 by the Department of Justice. While the nature and degree of each FBI defendant's responsibility for the injuries plaintiffs alleged surely differed, Jones, as a litigant, appears to have fared no better, and no worse, than the other FBI defendants. There was no adequate basis shown for dismissal of the claims in October 1981; there was no basis for a continuance of trial shown in November 1981. And there is no basis now for grant of judgment n.o.v. to defendant Jones.
VII. Plaintiffs' Contact with Dismissed Jurors
During the lengthy trial of this action the Court had occasion to discharge several members of the panel selected for service on the jury and to seat alternates in their places. It appears that, following the close of the evidence on December 14, 1981, but prior to delivery of closing arguments to the jury, one of counsel for plaintiffs contacted a person who had sat on the jury in the early days of trial but who had been discharged on December 3, 1981. Plaintiffs' counsel apparently discussed with the dismissed juror her view of the case and the evidence on the telephone on the afternoon of December 14.
On December 18, 1981, the Court examined the dismissed juror in proceedings on the record in Chambers and invited questions from counsel. The next day the lawyer for plaintiffs who had contacted the jurors made a statement on the record, and the Court again invited questions from counsel. FBI defendants thereupon moved for a mistrial, and the MPD defendants later joined in the motion. The motion was denied. In their present motions all defendants seek a new trial based upon plaintiffs' contact through their counsel with the discharged jurors.
It appears from the statements of plaintiffs' counsel and the discharged juror whom they succeeded in contacting and questioning that that discharged juror freely offered her opinions regarding the evidence she had heard and also described the opinions she perceived the other members of the panel to hold. The discharged juror, in having the conversation with plaintiffs' counsel, must have misunderstood or forgotten the Court's instructions to her at the time of her discharge, that she not discuss the case with anyone "on the outside." Plaintiffs' counsel may have also misunderstood or forgotten the Court's instructions to the discharged juror. The matter is now the subject of an inquiry by the Disciplinary Committee of this Court, initiated by the Assistant Attorney-General for the Civil Division. The question here must be whether plaintiffs' counsel's disregard of the Court's instruction to the dismissed juror, and of the general standards that should control any contact by counsel with jurors in any case,
constitutes grounds for a new trial. The rule that should govern remains that established in Mattox v. United States, 146 U.S. 140, 147-50, 36 L. Ed. 917, 13 S. Ct. 50 (1892), which sets up a presumption that any contact of this character should invalidate a verdict unless its harmlessness can be shown. "A trial judge should not hesitate to grant a new trial where there is any significant doubt whether the presumption of prejudice has been overcome." Ryan v. United States, 89 U.S. App. D.C. 328, 191 F.2d 779, 781 (D.C.Cir. 1951), cert. denied, 342 U.S. 928, 72 S. Ct. 368, 96 L. Ed. 691 (1952).
Leaving to the appropriate forum the question of whether disciplinary action is indicated in this case, the Court has determined that a new trial should not be granted on this ground. The parties had rested at the time of the contact with the dismissed juror. There was no longer an opportunity for plaintiffs to have conformed their proof to the advice of the dismissed juror. The only direct effect her advice could have had would have been on design of closing statements, and perhaps in final argument to the Court regarding the Court's instructions to the jury. The information plaintiffs gained had no impact at all on the Court's instructions, and apparently no effect on plaintiffs' requests in connection with the instructions. The only discernible effect the conversation with the discharged juror appears to have had on plaintiffs' closing was on plaintiffs' discussion of the statute-of-limitations issues in their closing. Perhaps because the dismissed juror had told plaintiffs' counsel that she believed the limitations defense to be difficult to understand, plaintiffs' counsel took pains to emphasize the basic simplicities of the defense. That is, however, the only possible effect on the trial that the Court's inquiries have disclosed, and even it is highly speculative. And there is no suggestion that counsel's argument on the limitations was in itself inappropriate in any concrete way. Defendants' counsel had ample opportunity to answer plaintiffs' argument on the limitations issue, and they did so. Even if it is assumed that plaintiffs' counsel formulated their closing argument, perhaps particularly that touching the limitations defense, with the discharged juror's comments in mind, the Court finds there was no prejudicial impact on the jury's verdicts stemming from the incident.
The jury, having found particular defendants liable to the plaintiffs, awarded sums of compensatory and punitive damages amounting to $93,750 to each of five plaintiffs and $81,062.50 to each of the other three prevailing plaintiffs; individual defendants' liability ranged from $75,000 to $9,375. The jury's award may be summarized on the following table, which identifies the three prevailing plaintiffs who received the lesser sum as "Group 1 Plaintiffs" and the five who received the greater sum as "Group 2 Plaintiffs."
Each Group 1 Plaintiff Each Group 2 Plaintiff
(Booker, Eaton, (Abbott, Bloom, WPC,
Hobson) Pollock, Waskow)
Brennan * $9375 $9375
Moore * $7500 $7500
Jones * $5625 $5625
Grimaldi * $4687.50 $4687.50
Pangburn * $5625 $5625
Wilson * $5625 $5625
Herlihy * $4687.50 $4867.50
District of Columbia $37973.50 $37937.50
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