Civil Standing Order (pdf); Criminal Standing Order (pdf); Civil Trial Order Example With Date Calculations (pdf); Example Proposed Jury Instructions (pdf)

=== Civil Standing Order (pdf) ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH STANDING ORDER IN CIVIL CASES (updated 2/13/2018) District Judge Jill N. Parrish The court issues the following standing order in this case regarding procedures that supersede the court’s local rules with respect to multiple motions to dismiss or for summary judgment, courtesy copies, requests for extensions of time, requests to file an overlength memorandum, and requests for leave to file a surreply. Because this order establishes new procedures, all counsel are required to file, within seven days, a Notice of Acknowledgment, which can be found under “Other Filings” Notices. That notice must: (i) be signed by counsel; and (ii) verify that counsel carefully read and will comply with this order. MULTIPLE MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT Litigants should file a single motion to dismiss or motion for summary judgment. Absent permission from the court, Judge Parrish does not allow the practice of filing a separate motion for each cause of action. If multiple parties are represented by the same attorney, motions and responses should be consolidated to a single document where practicable. If an attorney represents multiple defendants, for example, that attorney should avoid filing a motion to dismiss or motion for summary judgment for each defendant where the defendants have similar arguments. The attorney should instead note any differences between the motions brought by individual defendants in separate sections of a single brief, avoiding repetition where possible. Similarly, an attorney representing multiple plaintiffs should file a single response to each motion to dismiss or motion for summary judgment. The court may strike portions of briefs that are repetitive or that have been cut and pasted from other documents filed with the court. COURTESY COPIES Litigants need not provide courtesy copies of motions or memoranda filed with the court. But at the time of filing, parties must supply the court with one hard copy of the exhibits supporting a motion for summary judgment or a response to a motion for summary judgment. Parties should also provide a courtesy copy of exhibits supporting any other motion or memorandum if the exhibits are both voluminous and necessary to the resolution of the motion before the court. The exhibits should be tabbed, indexed, and placed in a three-ring binder or velobound. REQUESTS FOR EXTENSIONS OF TIME, TO FILE AN OVERLENGTH MEMORANDUM, AND FOR LEAVE TO FILE A SURREPLY Except for extensions of time granted by the clerk of the court under DUCivR 77-2, the following procedures apply to all requests for extensions of time, requests to file an overlength memorandum, and requests for leave to file a surreply when such requests relate to a dispositive motion that will be heard by Judge Parrish.1 These procedures do not apply to requests relating to 1 For example, the court’s standing order would apply to all motions for leave to file an overlength brief, leave to file a surreply or an extension of time that relate to a motion to dismiss, motion for summary judgment, motion for injunctive relief, motion for terminating sanctions or pretrial motions in limine. 2 motions pending before a Magistrate Judge.2 If the parties have any questions about whether a motion is referred to a Magistrate Judge or will be heard by Judge Parrish, please contact chambers. Failure to follow these procedures will result in denial of the party’s request for an extension of time, permission to file an overlength memorandum, or for leave to file a surreply. With this in mind, the court sets forth the following rules governing the aforementioned requests: 1. No request of this kind may be filed as ex parte. 2. Prior to filing such a request, a party must confer with opposing counsel with the intent to obtain a stipulation. This conference may take place by email or phone, but it is insufficient to simply send an email or leave a voicemail immediately prior to filing the request. If a stipulation cannot be reached, the party filing the motion should outline all efforts to confer with opposing counsel and obtain a stipulation. 3. If the parties stipulate to the request, the motion should be styled as a “Stipulated Motion” and no response to the request will be anticipated. If the opposing party did not stipulate to the request, then it must file an opposition to the request within three business days from the date the request is filed. There will be no reply. 4. When a motion of this kind is filed, the time for response in opposition is three business days from the date the motion was filed. There will be no reply. 5. Any memorandum supporting or opposing the request is limited to four total pages, including the caption page, but excluding the certificate of service. 6. The court notes that it disfavors requests to file overlength memoranda. Thus, all such requests must identify the number of additional pages requested, the reasons why 2 Matters typically referred to a Magistrate Judge include discovery motions and other non-dispositive motions. 3 additional pages are necessary, and what efforts the party has made to comply with the page limits allowed under the local rules. BY THE COURT ______________________________ Jill N. Parrish United States District Court Judge 4

=== Criminal Standing Order (pdf) ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH STANDING ORDER RE: MOTIONS UNDER SPEEDY TRIAL ACT AND CHANGE OF PLEA HEARINGS (updated April 24, 2019) STANDING ORDER RE: MOTIONS UNDER SPEEDY TRIAL ACT AND CHANGE OF PLEA HEARINGS I. MOTIONS TO CONTINUE TRIAL The court issues the instant Standing Order re Speedy Trial Act to address matters that are commonly faced in criminal cases. “The Speedy Trial Act requires that a criminal trial begin no more than seventy days after the filing of an indictment or the defendant’s first appearance in court.” United States v. Loughrin, 710 F.3d 1111, 1119 (10th Cir. 2013). “The purpose of the Act is to ‘protect a criminal defendant’s constitutional right to a speedy trial and serve the public interest in bringing prompt criminal proceedings.’” Id. (quoting United States v. Toombs, 574 F.3d 1262, 1268 (10th Cir. 2009 . But not every day counts toward the seventy-day limit because of multiple automatic statutory exclusions. Id. Additionally, the court may exclude time “resulting from a continuance” of the trial “on the basis of [the judge’s] findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). But the “[ends of justice] exception to the otherwise precise requirements of the Act was meant to be a rarely used tool for those cases demanding more flexible treatment.” United States v. Watson, 766 F.3d 1219, 1229 (10th Cir. 2010) (alteration in original) (quoting Toombs, 574 F.3d at 1269 (10th Cir. 2009 . “To grant an ends-of-justice continuance, the district court must ‘set [] forth, in the record . . . its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interest of the public and the defendant in a speedy trial.’” Id. (alterations in original) (quoting 18 U.S.C. § 3161(h)(7)(A . In order to ensure compliance with the Speedy Trial Act, this court has established a local rule detailing the required contents of a motion to continue a criminal trial brought under the Speedy Trial Act. See DUCrimR 12-1(h). That local rule requires, among other things, that any motion requesting a continuance include “specific reasons for the requested extension or continuance, including why the act cannot be done within the originally allotted time.” Id. 12-1(h)(5) (emphasis added). It also requires that the motion provide “an explanation of how the reasons offered in support of the motion justify the length of the extension or continuance that has been requested.” The requirements listed above, as well as the local rule’s other requirements, are necessary for the court to evaluate whether the ends of justice are served by the continuance. Vague and conclusory statements such as “additional time is needed to review records,” “additional time is necessary to conduct further plea negotiations,” or “counsel needs additional time to prepare for trial,” do not comply with the local rule or the Speedy Trial Act. See Tombs, 574 F.3d at 1271 (“Simply identifying an event, and adding the conclusory statement that the event requires more time for counsel to prepare, is not enough.”). Rather, the motion must contain specific factual allegations demonstrating the need for a continuance. The court understands that the practice of the bar in recent years has not always complied with the local rule or controlling Tenth Circuit precedent. Accordingly, the court issues this 2 standing order to put all counsel on notice that the Speedy Trial Act and DUCrimR 12-1(h) will be enforced. To facilitate compliance, the court establishes the following additional procedures. ALL MOTIONS TO CONTINUE A CRIMINAL TRIAL MUST BE FILED AT LEAST THREE WEEKS IN ADVANCE OF THE TRIAL DATE. ALTERNATIVELY, IF THE DEFENDANT OR THE GOVERNMENT INTENDS TO GO TO TRIAL AS SCHEDULED, COUNSEL MUST INFORM THE COURT OF THIS INTENTION AT LEAST THREE WEEKS IN ADVANCE OF THE TRIAL DATE. The court will issue monetary sanctions against all counsel who fail to meet these deadlines if counsel fails to demonstrate why the deadline could not be met. Unless and until a motion to continue is granted, the court will not strike the trial date from its calendar and counsel are expected to comply with all pretrial deadlines. II. CHANGE OF PLEA HEARINGS For clarity of the record, defense counsel must file a motion requesting a change of plea hearing before contacting the magistrate judge or this court to set a hearing. Change of plea hearing should be set no later than one week prior to the trial date. III. NOTICE OF ACKNOWLEDGMENT Because this order establishes a new procedure, all counsel are required to file, within seven days, a Notice of Acknowledgment. That notice must: (i) be signed by counsel; and (ii) verify that counsel carefully read and will comply with this order and with DUCrimR 12-1(h). BY THE COURT ______________________________ Jill N. Parrish United States District Court Judge 3

=== Civil Trial Order Example With Date Calculations (pdf) ===

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH John Doe v. Jane Doe Plaintiff, TRIAL ORDER Case No. Defendant. District Judge Jill N. Parrish The final pretrial conference in this matter is scheduled for [About Five Weeks before Trial] in Room 8.200. The court will hear oral argument on all motions in limine during this conference. Counsel should also be prepared to discuss voir dire, jury instructions, and the verdict form. Counsel who will try the case must attend. Any attorney not present at this conference will not be permitted to participate in the trial. This case is set for a [NUMBER OF DAYS]-day jury trial to begin on [Trial Date] at 8:30 a.m. in Room 8.200. The attorneys are expected to appear in court at 8:00 a.m. on the first day of trial for a brief pre-trial meeting. Counsel are instructed as follows: 1. Court-Imposed Deadlines The deadlines described in this order cannot be modified or waived in any way by a stipulation of the parties. A party that believes an extension of time is necessary must make an appropriate motion to the Court and that motion may be joined by the other party. 2. Voir Dire The court’s standard voir dire template may be found on the Court’s website or may be obtained by contacting chambers. That template includes an “Initial Juror Questionnaire,” “Questions from the Bench,” and “Confidential Questionnaire.” Voir dire will be conducted according to the following procedure. The potential jurors will be given the juror questionnaires in the jury assembly room. Each potential juror will respond in writing before voir dire begins. The potential jurors will read their responses to the “Initial Juror Questionnaire” in open court. The court will then ask counsel to introduce themselves, their staff, and their witnesses. The court will then read the “Questions from the 1 Bench.” The potential jurors will be asked to raise their hands if they answer “yes” to any of these questions. Next, the potential jurors will be asked if they responded “yes” to any of the questions on the “Confidential Questionnaire.” Any necessary follow-up to these questions will occur in the jury room with counsel and a court reporter present. If the parties have additional questions to be asked in the “Confidential Questionnaire,” they are to follow the following procedure: (a) The parties must review the Court’s standard voir dire question template. The parties must then serve on each other by [About 7 weeks before trial] any proposed changes or additions to the template. The parties must meet and confer in order to agree on a single set of voir dire questions to the extent possible. A party suggesting the use of a questionnaire submitted to the jury in advance of (b) trial must file notice of that request by [About 7 weeks before trial]. The parties must jointly file a single document containing any proposed changes (c) or additions to the Court’s standard voir dire questions. That document should identify each proposed change or additional question and state whether the proposed change is stipulated to by all parties. Any proposed alteration that is not stipulated to by all parties should be clearly identified. Proposed voir dire questions should be drafted in a form that can be answered in (d) writing with a “yes” or “no.” A “yes” answer should indicate that there may be a need for additional follow-up questions. For example, “Are you aware of any reason why you cannot serve impartially on the jury in this case?” 3. Jury Instructions and Verdict Form The procedure for proposed jury instructions and verdict form is as follows: The parties must review the Court’s standard jury instructions found on the (a) Court’s website. (b) The parties must serve their proposed jury instructions and verdict forms on each other by [About 7 weeks before trial]. The parties must then confer in order to agree on a single set of jury instructions, and verdict form to the extent possible. It is not enough for the parties to merely agree upon the general instructions and then each submit their own set of substantive instructions. The Court expects the parties to meet, confer, and agree upon the wording of the substantive instructions and the verdict form for the case. The parties must jointly file with the Court a single set of the parties’ proposed (c) jury instructions by [About 6 weeks before trial]. That single document should include all of the proposed jury instructions for both parties. All instructions should be labeled and numbered. Any instruction that was agreed upon should be labeled “Joint Instruction No. #.” Any instruction that was not agreed upon should include, and clearly label, both parties proposals. Any instruction not agreed upon should include citations to the legal authority that provides the basis for the instruction. The document should not, however, 2 include any objections or legal argument. Rather, all objections to proposed jury instructions and verdict forms should be filed in conformity with subsection (e). An example of the proper formatting and content of this document is found on the Court’s website. (e) Each party must file its objections, if any, to jury instructions, verdict forms, and voir dire questions proposed by the other party by 4:00 p.m. on [About 5 weeks before trial]. Any objections must recite the proposal in its entirety and specifically highlight the objectionable language contained therein. Objections must contain both a concise argument why the proposed language is improper and citation to relevant legal authority. Where applicable, the objecting party must submit an alternative instruction covering the pertinent subject matter or principle of law. A copy of the proposed alternative instruction must be filed with the Court and emailed to [email protected] as a Word or WordPerfect document. Any party may, if it chooses, submit a brief written response in support of its proposed instructions by 4:00 p.m. on [2 days after objections]. All instructions must be short, concise, understandable (i.e. written in plain (f) English), and neutral statements of law. Argumentative instructions and voir dire questions are improper and will not be given. (g) Modified versions of statutory or other form jury instructions (e.g., Federal Jury Practice and Instructions) may be acceptable. A modified jury instruction must, however, identify the exact nature of the modification made to the form instruction and cite the Court to authority, if any, supporting such a modification. 4. Motions in Limine Before filing any Daubert motion or any motion in limine, the parties must meet and confer to attempt to resolve the dispute. All Daubert motions and motions in limine are to be filed with the Court by [About 6 weeks before trial]. A separate motion must be filed for each preliminary ruling sought. Each motion must specifically identify the relief sought, include a certification that counsel met and conferred, and must be accompanied by a memorandum of law and a proposed order. If the motion concerns a proposed exhibit, the entire exhibit should also be attached. Opposition memoranda must be filed by [About 5 weeks before trial]. There will be no reply. No memorandum in support of, or in opposition to, a motion may be longer than ten (10) pages in length. 5. Courtroom Equipment and Recorded Testimony If counsel wish to use any courtroom equipment, such as easels, projection screens, etc., they must so state in the final pretrial order and at the final pretrial conference. Trial counsel and support staff are expected to familiarize themselves in advance of trial with any equipment they intend to use. Any party desiring to present testimony of a witness by recorded means, whether video, audio or paper, must serve a designation of the testimony by [About 7 weeks before trial]. This shall not be filed with the Court. 3 The designation must include specific citations to the testimony intended to be introduced. The opposing party must serve its objections on the party intending to offer the recorded testimony by [About 6 weeks before trial]. The parties must then meet and confer (with at least one in-person meeting) to resolve any disputes. After that conference, the designating party shall file its designation, as well as the entire recorded testimony (not just the portions designated) with the court by [About 5 weeks before trial]. Any remaining objections to that designation must be filed with the court by [Three days later]. A party intending to use recorded testimony is strongly encouraged to present the deposition by video or to display the deposition text as the deposition is presented and, if read, to use a professional reader who has rehearsed the reading with the attorney. 6. Trial Briefs Each party must file a Trial Brief [About 1 week before pretrial conference]. Each brief must include a list of all witnesses to be called and a short statement as to the substance of each witness’s testimony. The plaintiff’s trial brief must contain an outline of the elements of each cause of action, with the facts supporting that element listed under each element. The defendant’s trial brief must contain a similar outline of the elements and facts for each cause of action in any counterclaim or third party claim. Any party raising an affirmative defense must outline the elements of such defense and the facts supporting that element. 7. Exhibit Lists/Marking Exhibits Counsel for all parties must exchange with all opposing parties copies of each (a) exhibit to be used at trial. The plaintiff must provide opposing counsel such exhibits by [About 7 weeks before trial]. The defendant must provide opposing counsel such exhibits no later than [About 6 weeks before trial]. Counsel must clearly mark any exhibits that will be used during opening statements. (b) Parties must meet and confer in order to stipulate to non-objectionable exhibits. In order to save the jury’s time, all stipulated exhibits will be admitted into evidence during the pre-trial meeting immediately prior to voir dire. After eliminating duplicate exhibits, each party must prepare an exhibit list in (c) Word or WordPerfect format for the Court’s use at trial. Standard forms for exhibit lists are available from the Court’s website, and questions regarding the preparation of these lists may be directed to the case manager, Stephanie Schaerrer, at 801-524-6018. All parties are required to pre-mark their exhibits to avoid taking up time during (d) trial for such purposes. (e) All exhibits to be used at trial must, at the time they are exchanged with opposing counsel, be marked for identification numerically preceded by a designation of the party offering the exhibit, such as “Plaintiff’s Exhibit ___” or “Defendant’s Exhibit ___.” Counsel are to designate a range of numbers to be used by each side to avoid the same 4 number being used for more than one exhibit. For example, if the plaintiff elected to use the numeric range of 1 to 100, the defendant would begin at the numeric range of 200. Alphabetic identification is not permitted. Pages of documentary exhibits must retain bates stamps used when the documents (f) were produced in discovery. (g) Original exhibits must be stapled. (h) Two (2) trial notebooks containing paper copies of exhibit lists and marked exhibits must be submitted to the Court by [About 5 days before trial]. The exhibit list must be filed with the Court and emailed as a Word or WordPerfect document to [email protected]. The notebooks should also include a list of all exhibits to be admitted via stipulation of the parties. Electronic copies of all exhibits must also be submitted on a CD/DVD Rom in (i) PDF format. Optical Character Recognition (OCR) must be run on the PDF files to enable text searching of the exhibits. 8. Witness Lists All parties are required to prepare a separate witness list for the Court’s use at trial. The list contained in the pretrial order will not be sufficient. Standard forms for witness lists are available from the Court’s website, and questions regarding the preparation of these lists may be directed to the case manager, Stephanie Schaerrer, at 801-524-6018. Witness lists must be filed with the Court and emailed as a Word or WordPerfect document to [email protected] by [About 5 days before trial]. 9. Pretrial Objections The requirement for objections to exhibits under Rule 26(a)(3)(B) of the Federal Rules of Civil Procedure is superseded by this order. Any objection to the authenticity of an exhibit as defined by Rule 901 of the Federal Rules of Evidence, and any objections of any nature to exhibits that will be used by counsel during opening arguments, must be made in writing, and filed with the court, no later than [About 5 weeks before trial]. Any party intending to offer evidence under Federal Rule of Evidence 902(11) or (12) must provide to opposing counsel and file with the Court a notice of their intent by [About 4 weeks before trial]. Any objections must be made in writing no later than [3 Days Later]. The Court will address these challenges at the final pretrial conference. All other objections to an exhibit’s admissibility are reserved until the exhibit is offered at trial. 10. Presentation of Exhibits at Trial 5 A hard copy of every exhibit offered in evidence shall be presented to the Court and to the witness at the time the exhibit is first used. The Court will maintain a copy for later use by the Court or by a subsequent witness. 11. In Case of Settlement Pursuant to DUCivR 41-1, the Court will tax all jury costs incurred as a result of the parties’ failure to give the Court notice of settlement less than one full business day before the commencement of trial. Leaving a voice mail message or sending notice by fax or email is not considered sufficient notice to the Court. If the case settles, counsel must advise the jury administrator and a member of this chamber’s staff through a personal visit or person-to-person telephonic communication at least one full business day before the commencement of trial. 12. Courtroom Conduct In addition to the rules outlined in DUCivR 43-1, the Court has established the following ground rules for the conduct of counsel at trial: Please be on time for each court session. In most cases, trial will be conducted (a) from 8:30 a.m. until approximately 3:00 p.m., with two short (ten minute) breaks and a 30 minute lunch break. Trial engagements take precedence over any other business. If you have matters in other courtrooms, arrange in advance to have them continued or have an associate handle them for you. Any motions or matters that need to be addressed outside the jury will be heard at 8:00 a.m. or after the trial day has recessed. Usually, the Court has other hearings set after 3:00 p.m. (b) (c) (d) Stand as court is opened, recessed or adjourned. Stand when the jury enters or retires from the courtroom. Stand when addressing, or being addressed by, the Court. (e) In making objections and responding to objections to evidence, counsel must state the legal grounds for their objections with reference to the specific rule of evidence upon which they rely. For example, “Objection . . . irrelevant and inadmissible under Rule 402,” or “Objection . . . hearsay and inadmissible under Rule 802.” Sidebar conferences are discouraged. Most matters requiring argument must be (f) raised during recess. Please plan accordingly. Counsel need not ask permission to approach a witness in order to briefly hand (g) the witness a document or exhibit. (h) Address all remarks to the Court, not to opposing counsel, and do not make disparaging or acrimonious remarks toward opposing counsel or witnesses. Counsel must instruct all persons at counsel table that gestures, facial expressions, audible comments, 6 or any other manifestations of approval or disapproval during the testimony of witnesses, or at any other time, are absolutely prohibited. Refer to all persons, including witnesses, other counsel, and parties, by their (i) surnames and NOT by their first or given names. Only one attorney for each party shall examine, or cross-examine, each witness. (j) The attorney stating objections during direct examination shall be the attorney recognized for cross examination. Offers of, or requests for, a stipulation must be made out of the hearing of the (k) jury. (l) When not taking testimony, counsel will remain seated at counsel table throughout the trial unless it is necessary to move to see a witness. Absent an emergency, do not leave the courtroom while court is in session. If you must leave the courtroom, you do not need to ask the Court’s permission. Do not confer with or visit with anyone in the spectator section while court is in session. Messages may be delivered to counsel table provided they are delivered with no distraction or disruption in the proceedings. (m) Closing argument will follow the Court’s final instructions to the jury. Counsel are cautioned that any closing rebuttal argument must be limited to addressing new issues raised during the defendant’s closing argument. The Court will sustain an objection and instruct the jury to disregard rebuttal argument that could and should have been made in the plaintiff’s initial closing argument. The plaintiff’s closing argument must be structured to allow the defendant a fair opportunity to address the argument in its closing. Counsel are reminded that vouching is improper. In opening statements and in (n) arguments to the jury, counsel shall not express personal knowledge or opinion concerning any matter in issue. The following examples would be improper: “I believe the witness was telling the truth,” or “I found the testimony credible.” DATED this ____ day of ____________, _________. BY THE COURT: __________________________ Jill N. Parrish United States District Judge 7

=== Example Proposed Jury Instructions (pdf) ===

FINAL INSTRUCTIONS INSTRUCTION NO. 1 Closing Roadmap MEMBERS OF THE JURY: You now have all of the evidence. Three things remain to be done: First, I will give you additional instructions that you will follow in deciding this case. Second, the lawyers will give their closing arguments. Finally, you will go to the jury room to discuss and decide the case. The remaining preliminary instructions have been omitted from this example. INSTRUCTION NO. 2 Introduction to Substantive Law Now that I have explained the procedures and general instructions, I will explain the specific laws for each of the claims at issue in this case. - 2 - INSTRUCTION NO. 3 Statement of the Case COMPANY A’S PROPOSAL: Company A claims that it had a May 2, 2011 Service Agreement with Company B whereby Company B was to perform certain utility locate services for Company A and was to provide detailed invoices to Company A on a monthly basis for those locate services. Company A claims that Company B materially breached that contract by failing to submit detailed invoices on a monthly basis from May 2012 to August 2013 and that Company A has been damaged as a result. This Court has already determined that Company B breached the contract by failing to provide the detailed monthly invoices to Company A. Company A wants Company B to pay it money to compensate it for the damages Company A claims to have suffered. COMPANY B’S PROPOSAL: Company B is a Utah company that provides underground utility locating services, similar to systems used in other states sometimes referred to as "Blue Stakes" or "Call Before You Dig". Company A is a telecommunications company operating primarily in Texas. In 2011, Company B entered into a Service Agreement with Company A to perform utility locating services in the Dallas, Texas, area. During a period of time from May 2012 through September 2013, Company B alleges that it performed locating services for 14,322 locations requested by Company A. During this same period, Company B failed to send monthly invoices to Company A as required by the Service Agreement. Company B submitted the - 3 - invoices to Company A in September 2013. The total amount of the invoices submitted was approximately $1.2 million. Company A denies that it requested the locating services allegedly performed by Company B. It is Company A’s position that, because invoices for May 2012 through August 2013 were not submitted monthly, Company A is not required to pay for any services that Company B provided from May 2012 through September 2013. - 4 - INSTRUCTION NO. 4 Facts Conclusively Established COMPANY A’S PROPOSAL: This Court has already determined that: 1. 2. 3. 4. the May 2, 2011 Service Agreement entered into by and between Company A and Company B is a valid contract; the May 2, 2011 Service Agreement required that Company B submit detailed invoices to Company A on a monthly basis; Company B failed to submit detailed invoices to Company A on a monthly basis between May 2012 to August 2013; Company B breached the May 2, 2011 Service Agreement by failing to submit detailed invoices to Company A on a monthly basis from May 2012 to August 2013. You may therefore treat these facts as established for purposes of your deliberations. COMPANY B’S PROPOSAL: Prior to the trial of this case, the Court made the following factual determinations as a matter of law: In May 2011, the parties entered into a contract, identified as the Service Agreement 1. (stipulated trial Exhibit 1). From May 2012 through August 2013, Company B failed to send monthly invoices to 2. Company A as required by the Service Agreement. Under ¶¶ 3 and 9 of the Service Agreement, Company B had agreed to send invoices to 3. Company A on a monthly basis. Therefore, Company B’s failure to send monthly invoices during this period was a breach of those paragraphs of the Service Agreement. You are to take these facts as true for purposes of this case. MUJI 2d CV2102; Document 84, Memorandum Decision and Order on Pending Motions - 5 - INSTRUCTION NO. 5 Material Breach COMPANY A’S PROPOSAL: This Court has already determined that Company B breached the May 2, 2011 Service Agreement by failing to provide detailed monthly invoices to Company A. You must decide whether there was a material breach of the contract. What constitutes so serious a breach as to justify rescission is not easily reduced to precise statement, but certainly a failure of performance which defeats the very object of the contract or is of such prime importance that the contract would not have been made if default in that particular had been contemplated is a material failure. A breach which goes to only a part of the consideration, is incidental and subordinate to the main purpose of the contract, and may be compensated in damages does not warrant a rescission of the contract; the injured party is still bound to perform his part of the agreement, and his only remedy for the breach consists of the damages he has suffered therefrom. A rescission is not warranted by a mere breach of contract not so substantial and fundamental as to defeat the object of the parties in making the agreement. The relevant question is not whether the breach goes to the heart of the provision breached, but whether it goes to the heart of the contract itself. The following factors can assist in determining the materiality of a breach: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of the benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or offer to perform will cure his failure, taking account of all the - 6 - circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. If you decide that Company B materially breached the contract, then Company A was excused from doing what it had promised to do under the contract. However, if you decide that what Company B failed to do was not important to fulfilling the purpose of the contract, then Company A was not excused from doing what it promised to do under the contract. REF: Document 84, Memorandum Decision and Order on Pending Motions; MUJI 2d CV2116 COMPANY B’S PROPOSAL: You must decide whether there was a material breach of the contract. A breach is material if a party fails to perform an obligation that was important to fulfilling the purpose of the contract. A breach is not material if the party’s failure was minor and could be fixed without difficulty. Only a material breach will excuse further performance by the non-breaching party. Therefore, “[n]ot every minor failure justifies nonperformance. It must be something so substantial that it could be reasonably deemed to vindicate the other's refusal to perform. What constitutes so serious a breach as to justify rescission is not easily reduced to precise statement․ A failure of performance which defeats the very object of the contract or is of such prime importance that the contract would not have been made if default in that particular had been contemplated is a material failure. A breach which goes to only a part of the consideration, is incidental and subordinate to the main purpose of the contract, and may be compensated in damages does not warrant nonperformance. Nonperformance is not warranted by a mere breach - 7 - of contract not so substantial and fundamental as to defeat the object of the parties in making the agreement. The relevant question is not whether the breach goes to the heart of the provision breached, but whether it goes to the heart of the contract itself. Therefore, whether a breach is material is a question of degree. It turns on a number of factors: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. If you decide that Company B, Inc. materially breached the contract by sending late invoices, then Company A Communications, L.P. was excused from doing what it had promised to do under the contract. However, if you decide that what Company B, Inc. failed to do was not important to fulfilling the purpose of the contract, then Company A Communications, L.P. was not excused from doing what it promised to do in the contract. - 8 - Defendant Company A Communications, L.P. bears the burden of proving by a preponderance of the evidence that Company B, Inc. committed a material breach of the Services Agreement. References: Cross v. Olsen, 2013 UT App 135, ¶¶ 25-30, 303 P.3d 1030, 1035-36 Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 22, 94 P.3d 193, 199. Polyglycoat Corp. v. Holcomb, 591 P.2d 449, 451 (Utah 1979). Black’s Law Dictionary (8th ed. 2004) (defining breach of contract). MUJI 1 - 9 - INSTRUCTION NO. 6 Partial Breach COMPANY A’S PROPOSAL: Company B claims that Company A breached the May 2, 2011 Service Agreement by failing to pay sixteen invoices (ranging from May 2012 to August 2013) collectively submitted to Company A on September 10, 2013, and that Company B has been damaged as a result. Company B wants Company A to pay it money to compensate it for the damages Company B claims to have suffered. Company A denies Company B’s claim on grounds that Company B breached the contract first by failing to provide detailed invoices to Company A as required by the contract. COMPANY B’S PROPOSAL: If Company B did some but not all of the things it promised to do under the contract, then Company A may recover damages caused only by what Company B failed to do under the contract. References Restatement (Second) of Contracts § 236(1981). - 10 - INSTRUCTION NO. 7 Elements COMPANY A’S PROPOSAL: In order to recover damages, Company B must prove each of these three things: 1. 2. 3. that Company B did what the contract required it to do; that Company A breached the contract by not performing its obligations; and that Company B was damaged because Company A breached the contract. COMPANY B’S PROPOSAL: None? MUJI 2d CV2102, omitting existence of valid contract - 11 - JOINT INSTRUCTION NO. 8 Damages If a party is damaged by a breach of contract, then it has a right to recover damages that follow naturally from the breach as follows: 1. 2. the loss of the benefits from the contract caused by the breach; minus any cost or other loss that the damaged party has avoided by not having to perform. MUJI 2d CV2135 - 12 - JOINT INSTRUCTION NO. 9 If a party recovers damages for the benefits it expected to receive from the contract, then that party is also entitled to recover “consequential” damages caused by the breaching party. Consequential damages are those losses or injuries reasonably within the contemplation of the parties, that is, they could have considered them or reasonably foreseen them, at the time the contract was made. In order to decide whether a loss or an injury was foreseeable at the time the contract was made, you should examine the nature and language of the contract and the reasonable expectations of the parties. A loss may be foreseeable because it follows from the breach: 1. 2. in the ordinary course of events, or as a result of special circumstances, beyond the ordinary course of events, that the breaching party had reason to know. - 13 - JOINT INSTRUCTION NO. 10 Damages are only recoverable for loss in an amount that the evidence proves with reasonable certainty, although the actual amount of damages need not be proved with precision. Any alleged damages which are only remote, possible or a matter of guesswork are not recoverable. MUJI 2d CV2140 - 14 - INSTRUCTION NO. 11 Nominal Damages COMPANY A’S PROPOSAL: None? COMPANY B’S PROPOSAL: A party damaged by the other party’s breach of the contract has a right to recover the damages caused by the breach. However, if Company A has not proved any actual or substantial damages caused by Company B’s breach, or if Company A has not proved the amount of damages, then you may award as damages a small or nominal sum such as one dollar. MUJI 2d CV2140 - 15 - POST-ARGUMENT INSTRUCTIONS - 16 - POST-ARGUMENT INSTRUCTION NO. 12 Jury Deliberations—Overview You have now heard all of the evidence and the arguments of counsel. In a moment you will be escorted to the jury room and each of you will be provided with a copy of the instructions that I have given you. Any exhibits admitted into evidence will also be placed in the jury room for your review. When you go to the jury room, you should first select a foreperson who will preside over your deliberations and be your spokesperson here in the courtroom. I suggest that you should then review the jury instructions. Not only will your deliberations be more productive if you understand the legal principles upon which your verdict must be based, but for your verdict to be valid, you must follow the instructions throughout your deliberations. Remember, you are the judges of the facts, but you are bound by your oath to follow the law as stated in the instructions. Once you have reviewed the instructions, you may also wish to review the Special Verdict Form to understand the questions you will need to answer. I would also suggest that before you begin discussing the issues presented to you for resolution, you may find it helpful for each of you to write down your own views about the case. This may help you to clarify your own thinking about the issues. You should then begin to deliberate. When you have reached unanimous agreement as to your verdict, you will have the foreperson fill it the Special Verdict Form, date and sign the form, and then return your verdict to the courtroom. Your deliberations will be confidential. You will not be required to explain your verdict to anyone. - 17 - POST-ARGUMENT INSTRUCTION NO. 13 Commencement of Deliberations The attitude and conduct of jurors at the outset of their deliberations are matters of considerable importance. It is rarely productive or good for a juror, upon entering the jury room, to make an emphatic expression of his or her opinion on the case or to announce a determination to stand for a certain verdict. When one does that at the outset, his or her sense of pride may be inflamed, and he or she may hesitate to recede from an announced position if shown that it is wrong. Remember that you are not partisans or advocates in this matter, but are judges of the facts. - 18 - POST-ARGUMENT INSTRUCTION NO. 14 Jury Deliberations The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree to the verdict. Your verdict must be unanimous. This means each of you must agree on the answer to each question on the Special Verdict Form. 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 violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views, and change your opinion, if convinced it is wrong. But do not surrender your honest conviction as to the weight or effect of evidence, solely because of the opinion of your fellow jurors, for the mere purpose of returning a verdict. - 19 - POST-ARGUMENT INSTRUCTION NO. 15 Do Not Speculate or Resort to Chance When you deliberate, do not flip a coin, speculate or choose one juror’s opinions at random. Evaluate the evidence and come to a decision that is supported by the evidence. - 20 - POST-ARGUMENT INSTRUCTION NO. 16 Communications with the Court During Deliberations If it becomes necessary during your deliberations to communicate with the court, you may send a note through a court security officer, signed by your foreperson or by one or more jurors. No member of the jury should attempt to communicate with the court by any means other than a signed writing; and the court 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. You will note from the oath the court security officer will take that he, as well as any other person, is also forbidden to communicate in any way with any juror about any subject touching the merits of the case. Bear in mind also that you are not to reveal to any person—not even to the court—how the jury stands numerically or otherwise until you have reached a unanimous verdict. - 21 - POST-ARGUMENT INSTRUCTION NO. 17 Schedule for Deliberations During your deliberations, you are able as a group to set your own schedule for deliberations. I would suggest that you not feel pressured to continue your deliberations if you feel so exhausted or stressed that you may risk compromising your conviction simply to finish your deliberations. A good night’s rest and time for reflection may be helpful to resolve doubts you may have. You may, however, deliberate as late as you wish or recess at an appropriate time set by yourselves. You may set your own schedule for lunch and dinner breaks. I do ask, however, that you notify the court by a note when you plan to recess for the night. - 22 -