United States District Court, D. Colorado
ORDER DENYING PLAINTIFF'S MOTION FOR NEW TRIAL
ROBERT E. BLACKBURN, District Judge.
The matter before me is Plaintiff [ sic ] Opposed Motion For New Trial [#320],  filed June 10, 2014. I deny the motion.
I have jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
When a case has been tried to a jury, a new trial may be granted "for any of the reasons for which new trial have heretofore been granted in actions at law in the courts of the United States." FED. R. CIV. P. 59(a)(1). A motion for new trial "is not regarded with favor and should only be granted with great caution." United States v. Kelley, 929 F.2d 582, 586 (10th Cir. 1991). The decision whether to grant a new trial is committed to the sound discretion of the trial court. Id.
Plaintiff's constitutional and RICO claims were tried to a jury on May 5-7, 2014. After plaintiff rested, each defendant made an oral, midtrial motion under Rule 50(a) for judgment as a matter of law. I granted these motions, finding that plaintiff had failed to offer proof sufficient to meet all essential elements of any of her claims. Although I previously construed a notice filed by plaintiff as a motion for new trial ( see Order Denying Plaintiff's Motion for New Trial [#317], filed May 16, 2014 (addressing notice entitled Fraud Upon the Court by Robert Blackburn, Gary Norman and Cliff Hudson [#315], filed May 13, 2014)), plaintiff advised the court that her intent in filing that document was otherwise, and subsequently filed the instant motion ( see Plaintiff's Correction to the Record [#319], filed May 21, 2014). By this motion, plaintiff alleges a variety of errors attendant on the trial. As none of these contentions has merit, her motion for new trial is denied.
Plaintiff presents several arguments going to the evidence admitted at and excluded from the trial. She complains first that the court fashioned its own Pretrial Order rather than accepting the proposed version she submitted ([#290], filed April 15, 2014). Although the Local Rules of Practice of the United States District Court for the District of Colorado - Civil and this court's Civil Practice Standards dictate the formatting of the parties' proposed Final Pretrial Order, this document nevertheless is merely that - a proposal. Because the Final Pretrial Order becomes the operative pleading governing the course and scope of the trial, see Youren v. Tintic School District, 343 F.3d 1296, 1304 (10th Cir. 2003), it is vital that it completely and accurately reflect the issues to be presented to the jury. The rambling, desultory proposed order which plaintiff submitted was not equal to that task. As I advised the parties at the combined Final Pretrial Conference and Trial Preparation Conference, given the unique circumstances of this case, I found it necessary to take an active role in managing and guiding the proceedings. This included fashioning a more concise and workable Final Pretrial Order. Nothing in that process warrants a new trial.
Also prior to trial, I quashed a subpoena directed at Dr. Patrick Miller on both procedural and substantive grounds. ( See Order Granting the Motion for Non-Party Patrick A. Miller, M.D. To Quash Subpoena [#302], filed May 1, 2014.) I previously found no basis for reconsidering that determination ( see Order Denying Plaintiff's Motion for New Trial at 2-3 [#317], filed May 16, 2014), and plaintiff presents nothing novel here to convince me otherwise.
Plaintiff next complains that she did not receive defendant Gary Norman's Objections to Exhibits of Plaintiff Elizabeth Wojdacz [#303], filed May 1, 2014, prior to trial. Plaintiff fails to specify how any of the statements contained in Mr. Norman's objections might have been relevant to the presentation of her case or how the alleged absence of this document prejudiced her in any particular. Moreover, the court's own review of this document reveals nothing therein that was not thoroughly covered by Mr. Norman's testimony at trial.
Plaintiff also points to a variety of alleged errors in the presentation of the evidence. For example, she cites to defendant Cliff Hudson's reference in his opening remarks to the number of previous cases she allegedly had filed. There is no way in which this remark could be thought to have prejudiced plaintiff. Aside from the fact that I specifically instructed the jury prior to the start of trial that the parties' opening statements were not evidence, see Weeks v. Angelone , 528 U.S. 225, 234, 120 S.Ct. 727, 733, 145 L.Ed.2d 727 (2000) (jurors are presumed to follow the instructions of the court), the case ultimately was not submitted to the jury. The remark certainly did not prejudice this court's legal determination of the Rule 50 motions, which determination was based not on plaintiff's litigation history, but on the utter lack of evidence establishing any of her claims in this lawsuit.
In a similar vein, plaintiff suggests that I improperly prevented her from asking leading questions of Mr. Norman and Mr. Hudson as hostile witnesses. The record will reflect plainly that plaintiff was admonished repeatedly for making improper editorial statements in response to Messrs. Norman's and Hudson's answers to her questions. See Cadorna v. City and County of Denver, 245 F.R.D. 490, 492-93 (D. Colo. 2007). The record also will belie plaintiff's suggestion that my requirement that she present her own testimony by way of question and answer rather than as a narrative "tampered with the presentation of her case." Plaintiff complied with my directive and presented a linear, chronological, and effective (if not ultimately efficacious) recitation of the facts she believed to be important to her claims, evidencing no hint of the intimidation she now claims she felt as a result. Nor was there any indication that plaintiff's alleged short-term memory problems negatively effected the presentation of her case in any way. Thus, her suggestion that I sua sponte should have made some unspecified accommodation for this alleged mental limitation demonstrates no error, much less the type of error that would warrant a new trial. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (court may not act as advocate for pro se party).
Finally, plaintiff presents two substantive arguments challenging my decision to grant defendants' midtrial motions for judgment as a matter of law. First, she challenges my determination that she failed to establish the enterprise element of her RICO and COCCA claims, asserting that Mr. Norman was the enterprise. While it is true that an individual can constitute an enterprise for purposes of RICO, see 18 U.S.C. § 1961(4), proof of an ...