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Hooper v. Penkava

United States District Court, D. Oregon, Medford Division

May 4, 2015



MARK D. CLARKE, Magistrate Judge.

On April 8, 2015, the Court held a hearing on the Order to Show Cause, issued on February 26, 2015, and Plaintiff's motion for a new trial (#127), filed on March 9, 2015. Defendant filed responsive documents the morning of the hearing. Defendant Deputy Penkava and Attorney Ryan Kirchoff presented sworn testimony and argument regarding the concerns raised by the Court, as well as issues raised by Plaintiff Dennis Hooper's motion for a new trial. Mr. Hooper was also present, and participated in the hearing.


"The court may, on motion, grant a new trial on all or some of the issues-and to any party-... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1). Historically recognized grounds include, but are not limited to, claims that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving. Coach, Inc. v. Siskiyou Buckle Co., 2012 WL 5303662, at *1 (D. Or. Oct. 25, 2012) (citing Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007)). Even if a verdict is supported by substantial evidence, the court may grant a motion for a new trial if it concludes that the verdict is against the clear weight of the evidence, is based on evidence which is false, or to prevent a miscarriage of justice. Roy v. Volkswagen of Am., Inc., 896 F.2d 1174, 1176 (9th Cir.), amended on other grounds on denial of reh'g, 920 F.2d 618 (9th Cir.1990), cert. denied, 500 U.S. 928 (1991). The court can weigh the evidence and assess the credibility of the witnesses. Id. The court is not required to view the evidence from the perspective most favorable to the prevailing party. Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987); see also Bippes v. Hershey Chocolate U.S.A., 180 F.R.D. 386, 388-89 (D. Or. 1998).


I. Order to Show Cause

The concerns raised by the Court are well detailed in the Order to Show Cause (#125), and the Court will not repeat them all here. The main issue revolves around a declaration submitted by the defendant in support of his motion for summary judgment, which the Court has determined to be materially inaccurate, particularly in paragraphs 5 & 6. These paragraphs state in full:

5. Prior to this particular encounter on August 16, 2011, I had stopped and issued citations to Hooper on various occasions, including, but not limited to operating a motor vehicle without a valid Oregon drivers license. Based on such personal knowledge in the course of my duties as a patrol deputy, I knew that Hooper had no valid Oregon drivers license and that he had resided in Oregon for at least six months.
6. I previously cited Hooper for operating a motor vehicle without a valid Oregon drivers license on January 29, 2009.

Penkava Declaration (#42-2).

At the hearing, Deputy Penkava and Mr. Kirchoff provided some explanations for the submission of the inaccurate declaration. First, Mr. Kirchoff contends that at the time defendant Penkava filed his motion for summary judgment, defendant did not place a particularly high degree of relevance on the above paragraphs, as they were submitted only to show that defendant was generally familiar with Plaintiff and his vehicle. Defendant did not believe probable cause for the traffic stop was the central issue. Instead, defendant viewed the issue as whether plaintiff could legally drive in Oregon with a Georgia driver's license. Although the Court accepts this explanation as true, the Court does not understand why relevance, or lack thereof, in any way reduces the importance of the accuracy of a declaration under oath.

Additionally, probable cause for the stop was, from the Court's perspective, the central issue at summary judgment. The only basis in the summary judgment record for probable cause for the August 2011 traffic stop were the 2009 encounters the defendant alleged he had with Plaintiff, as set forth in paragraphs 5 & 6 of the declaration. There was curiously no evidence at summary judgment of any conversations about Plaintiff within the Sheriffs Department about a month before the 2011 stop, which was the testimony of the defendant and Lt. Clark at trial. Defendant says that was not included for the same relevance reason set forth above.

Second, Mr. Kirchoff explains that he mixed up the January 1, 2009 incident involving a domestic dispute at Mr. Hooper's residence with a January 29, 2009 incident involving a traffic stop with Mr. Hooper. Deputy Penkava issued Mr. Hooper a citation at the January 1 incident, which was not a traffic stop, but he was not directly involved in the January 29 traffic stop incident, and he did not issue any citation at that time.

However, such a "mix-up" should not have been maintained in the face of extensive briefing of the summary judgment motion. It may be that defendant and defense counsel simply did not give sufficient attention to the filings of Plaintiff Hooper: Plaintiff pointed out the discrepancy in both his response to the defendant's motion and in his motion to strike the declaration. Beyond these obvious indications, there are the simple facts that 1) unlike the January 29 incident, the January 1 incident was not a traffic stop (the clear implication from the declaration), and 2) the citation written by Deputy Penkava on January 1 - the only one ever written by him to Mr. Hooper - was not pursued by the ...

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