     Case: 11-30696      Document: 00511776143        Page: 1     Date Filed: 03/02/2012




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                            FILED
                                                                           March 2, 2012
                                     No. 11-30696
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CARL A. JONES,

                                                  Plaintiff-Appellee,

v.

SWIFT TRANSPORTATION COMPANY INCORPORATED,

                                                  Defendant-Appellant.


                     Appeals from the United States District Court
                         for the Eastern District of Louisiana
                               USDC No. 2:09-CV-4888


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
            Swift Transportation Company appeals the district court’s denial of its
motion for sanctions, arguing that Appellee Carl A. Jones and his counsel
violated Local Rule 47.5(C) of the Eastern District of Louisiana, Rule 606(b) of
the Federal Rules of Evidence, and Rule 3.5(c) of the Louisiana Rules of
Professional Conduct. Because the district court did not abuse its discretion by
declining to sanction Jones and his counsel, we AFFIRM.



        *
        Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
   Case: 11-30696   Document: 00511776143      Page: 2   Date Filed: 03/02/2012

                                  No. 11-30696

                                        I
      After the district court entered judgment against Swift in a case arising
from a vehicle accident, Brenda G. Beilman, the jury foreperson, contacted the
district court with concerns about the verdict. The district court, without
informing Swift, directed Beilman to discuss her concerns with Jones’s counsel.
Beilman told Jones’s attorney that a juror overheard Jones say he may receive
$2,000,000 from his case. She also stated that Jones’s “statement was discussed
at length amongst the jurors,” and “the jury’s consideration of [Jones’s]
statement was prejudicial” to his damages award. Jones’s attorney moved for
a new trial using Beilman’s testimony to argue that outside influence prejudiced
the jury. In response, Swift filed motions to strike the affidavit and to sanction
Jones’s counsel for violating Local Rule 47.5(C) of the Eastern District of
Louisiana, Rule 606(b) of the Federal Rules of Evidence, and Rule 3.5(c) of the
Louisiana Rules of Professional Conduct. The district court denied both motions,
and Swift timely appealed.
                                        II
       We review a district court’s determination not to impose sanctions for
abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
The district court may sanction conduct where it is in direct defiance of the
sanctioning court or constitutes disobedience to the court’s orders. Positive
Software Solutions, Inc. v. New Century Mortg. Corp., 619 F.3d 458, 460 (5th Cir.
2010). Because imposing sanctions is often a fact-intensive inquiry, the district
court is given wide discretion. Mercury Air Group, Inc. v. Mansour, 237 F.3d
542, 548 (2001).
      Swift argues that Jones and his counsel violated Local Rule 47.5(C) of the
Eastern District of Louisiana and Rule 3.5(c) of the Louisiana Rules of




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                                       No. 11-30696

Professional Conduct and should be sanctioned.1 Swift further contends that
Jones and his counsel violated Rule 606(b) of the Federal Rules of Evidence by
including inadmissible testimony in the motion and should be sanctioned.2
       The district court itself permitted Jones’s counsel to speak with Beilman
when it encouraged her to contact counsel to discuss her concerns regarding the
overheard statement and its effect at deliberations.                 It was certainly not
unreasonable under those circumstances for Jones’s counsel to speak with
Beilman and to include her statements in an affidavit supporting Jones’s motion
for a new trial. Even assuming it was error for Jones to include this information
in an affidavit submitted to the district court, that error was harmless because
the district court denied Jones’s motion for a new trial. Therefore, under these
unique facts, the district court did not abuse its discretion in determining that
Jones did not act in defiance of the district court by talking to the juror or in
failing to award sanctions. Of course, the better practice is for the parties and
the court to avoid ex parte communications with jurors because such
communications can have serious effects on litigation. See United States v.
Peters, 349 F.3d 842, 846 (5th Cir. 2003) (explaining that ex parte
communication with jurors is rarely tolerated because it is “pregnant with
possibilities for error”).
                                             III
       The district court’s denial of Appellant’s motion is AFFIRMED.



       1
         Local Rule 47.5(C) of the Eastern District of Louisiana prohibits attorneys from
contacting jurors without having filed a motion showing good cause. Rule 3.5(c) of the
Louisiana Rules of Professional Conduct precludes attorneys from speaking with a juror where
the communication is prohibited by law or court order.
       2
        Rule 606(b) of the Federal Rules of Evidence permits jurors to testify about extraneous
prejudicial information but not about jurors’ mental processes. U.S. v. Barraza, 655 F.3d 375,
380 (5th Cir. 2011). Beilman’s affidavit testimony that the jurors overheard Jones make a
statement was likley admissible under Rule 606(b) of the Federal Rules of Evidence as
extraneous prejudicial information. However, Beilman’s testimony that this statement may
have impeded jurors’ abilities to deliver a fair verdict is more problematic.

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