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Life for Relief & Development v. Bank of America, N.A.

United States District Court, E.D. Michigan, Southern Division

August 23, 2017

LIFE FOR RELIEF & DEVELOPMENT Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL [#143]

          Denise Page Hood Chief, U.S. District Court.

         I. BACKGROUND/FACTS

         After a jury trial in this matter, on August 16, 2016, the Jury rendered its verdict and found that Defendant Bank of America, N.A. (“BANA”) did not intentionally discriminate against Plaintiff Life for Relief & Development (“Life for Relief”) on the basis of race or ethnicity when BANA closed Life for Relief's bank account. (Doc # 136) Judgment was entered in favor of BANA and against Life for Relief. (Doc # 139) This matter is now before the Court on Life for Relief's Motion for a New Trial filed on September 15, 2016. (Doc # 143) A Response and Reply have been filed. (Doc # 145; Doc # 146)

         Life for Relief argues that it should be granted a new trial on the following grounds: (1) the Jury's verdict was against the weight of the evidence; (2) BANA's “Golden Rule” violations during opening and closing; (3) Defense witness Frederick Stone should have been barred from testifying; (4) the Court erroneously allowed BANA to withhold witnesses Loretta Digsby and Christa Marshall, forcing Life for Relief to use their depositions in lieu of live testimony during its Case in Chief; and (5) improper comments made by Defense Counsel linking Life for Relief to the Government caused the verdict to be influenced by prejudice and bias. For the reasons set forth below, the Court denies Life for Relief's Motion for a New Trial.

         II. ANALYSIS

         A. Standard of Review

         Rule 59 of the Federal Rules of Civil Procedure provides that a court may, after a jury trial, “grant a new trial on all or some of the issues-and to any party- . . . 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. Specific grounds for a new trial have included: the verdict is against the weight of the evidence; damages are excessive; for other reasons, the trial was not fair; substantial errors in the admission or exclusion of evidence; errors in giving or refusing to give instructions; and misconduct of counsel. Clark v. Esser, 907 F.Supp. 1069, 1073 (E.D. Mich. 1995); City of Cleveland v. Peter Kiewit Sons' Co., 624 F.2d 749 (6th Cir. 1980); Static Control Components, Inc. v. Lexmark Int'l, Inc., 697 F.3d 387, 414 (6th Cir. 2012). The grant or denial of a new trial is purely within the discretion of the trial court and will not be reversed except upon a showing of abuse of discretion. Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). The trial court has broad discretion in deciding a motion for a new trial to prevent a miscarriage of justice. Clark, 907 F.Supp. at 1073; Peter Kiewit Sons' Co., 624 F.2d at 756; Fryman v. Fed. Crop Ins. Corp., 936 F.2d 244, 248 (6th Cir. 1991).

         B. Verdict and Weight of the Evidence

         Life for Relief argues that the Court should grant a new trial because the Jury's verdict was unreasonable and against the great weight of the evidence. In considering a motion for a new trial on the ground that the verdict is against the weight of the evidence, the court cannot set aside the verdict simply because it believes another outcome is more justified. Denhof v. City of Grand Rapids, 494 F.3d 534, 543-44 (6th Cir. 2007). The court must accept the jury's verdict and can only overturn the verdict if the verdict was against the weight of the evidence and the verdict was unreasonable. Id. Courts are not free to reweigh evidence and set aside jury verdicts merely because juries could have drawn different inferences or conclusions or because judges feel that other results are more reasonable. Bruner v. Dunaway, 684 F.2d 422, 425 (6th Cir. 1982).

         Life for Relief argues that the Jury's verdict was unreasonable and against the great weight of the evidence because Life for Relief proved its prima facie case, proved that the reasons offered by BANA for closing the account were not its true reasons, and proved that the only motivating factor was that the Arab ethnicity of Life for Relief was a risk to BANA. Life for Relief notes that the Jury deliberated for less than 50 minutes. BANA argues that the evidence at trial supported that BANA's decision to close Life for Relief's account was based on unusual and suspicious account activity, and not on racial discrimination.

         Under the burden shifting approach developed in McDonnell Douglas Corp. v. Green, a plaintiff must establish a prima facie case of discrimination by presenting indirect or circumstantial evidence which creates an inference of discrimination. 411 U.S. 792, 802 (1972). To prove a prima facie case, the plaintiff must establish that:

(1) plaintiff is a member of a protected class;
(2) plaintiff sought to make or enforce a contract for services ordinarily provided by the defendant; and
(3) plaintiff was denied the right to enter into or enjoy the benefits or privileges of the contractual relationship in that (a) plaintiff was deprived of services while similarly situated persons outside the protected class were not and/or (b) plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.

Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir. 2001).

         If the plaintiff proves a prima facie case, the burden of persuasion shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its decision. Id. Once the defendant carries this burden of persuasion, the plaintiff must prove by a preponderance of the evidence that the legitimate reason offered by the defendant was not its true reason, but rather, a pretext for discrimination. Id. at 804-05; Ang v. Proctor & Gamble Co., 932 F.2d 540, 548 (6th Cir. 1991). The plaintiff may meet this burden by showing: (1) that the stated reason had no basis in fact; (2) that the stated reason was not the actual reason; or (3) that the stated reason was insufficient to explain the defendant's action. Wheeler v. McKinley Enters., 937 F.2d 1158, 1162 (6th Cir. 1991). “The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

         In this case, the parties agreed that Life for Relief established the first two prongs of its prima facie case. Regarding the third prong, Life for Relief argues that the evidence at trial showed that it is operated by Arabs and BANA closed its account, while Zakat Foundation, a charity operated by Turkish Americans, was allowed to continue banking with BANA. BANA argues that at no point during the trial did Life for Relief identify an entity outside of their protected class that was otherwise similar to Life for Relief and continues to maintain accounts with BANA. Life for Relief's Chief Operating Officer, Mohammed Alomari (“Alomari”), testified that Zakat Foundation was a non-profit organization doing similar work as Life for Relief and banking with BANA, and that Zakat Foundation was operated by Turkish Americans (Doc # 129, Pg ID 2633). However, Life for Relief did not present evidence suggesting that Zakat Foundation utilized its BANA account in a manner similar to Life for Relief's use of its BANA account, which Alomari testified was primarily for deposits and to cover overhead expenses. See Doc # 129, Pg ID 2617.

         At trial, BANA offered the following legitimate, nondiscriminatory reason for closing Life for Relief's account: unusual and suspicious account activity. Christa Marshall (“Marshall”) testified that BANA determines whether account closure is warranted based on unusual and suspicious account activity. (Doc # 142, Pg ID 3168) Frederick Stone (“Stone”) testified that the standard for recommending closure of bank accounts is whether account activity is unusual or suspicious. (Doc # 142, Tr. Pg 178) Marshall testified that Life for Relief's account activity was unusual and suspicious for three reasons: the account activity was inconsistent with that of a charity; the bulk of deposits were cash deposits; and there were indications of structuring. (Doc # 142, Pg ID 3181) Marshall testified that, based on a holistic view of Life for Relief's account activity for thirteen months, the account activity was inconsistent with the account activity of other charities that she had reviewed because it did not include as many check deposits, credit card transactions, and transactions going out representing what the charity stands for as she would expect. Id. at 3182. Marshall testified that the transactions appeared to be for personal expenses rather than business expenses. Id. at 3185. Marshall further testified that, although she would expect a charity to receive donations in a manner that creates a paper trail for tax purposes, the bulk of deposits into Life for Relief's account were cash deposits in several locations other than the location of the Life for Relief office. Id. at 3187. Marshall also testified that she noticed two indications of structuring. Id. at 3189. The first was a series of four deposits totaling over $10, 000.00 on January 23, 2012 between 9:45 a.m. and 10:18 a.m. in four different neighborhoods in Seattle, Washington. Id. at 3189-92. The second was a series of five deposits totaling over $10, 000.00 on December 19 and 20, 2011, some within minutes of each other, in the same bank in North Carolina. Id. at 3193-96.

         Alomari testified that cash was the least frequent way in which Life for Relief received donations. He stated that funds in the account were used to purchase items like kitchen supplies, sweets, cleaning supplies, and a cell phone holster. He testidied that the account activity would look unusual to someone viewing solely the BANA account activity. (Doc # 130, Pg ID 2713-15, 2702-03, 2706)

         Regarding pretext, Life for Relief asserts that the evidence at trial showed “beyond all doubt” that the three reasons that Marshall gave for identifying the account activity as unusual and suspicious were false. First, Life for Relief maintains that Marshall admitted to having “no knowledge of how charities operated” and that she could not identify a single non-charity expense. However, it does not follow that Marshall's testimony regarding her experience reviewing the account activity of charities, what she would expect the account activity of a charity to look like, and how the Life for Relief account activity differed from that is therefore “upended.” Second, Life for Relief notes that Marshall testified that every cash deposit into any BANA account is from an unknown depositor. Again, it does not follow that Marshall's testimony regarding her expectation, based on experience, that a charity would receive more donations in a manner that creates a paper trail as opposed to in cash is therefore “upended.” Third, Life for Relief maintains that Marshall admitted, and Ms. Loretta Digsby (“Digsby”) concurred, that there was “no evidence of structuring.” The Court finds no such broad admissions in the record. Life for Relief argues that because BANA's legitimate reasons were all proven false, Mr. Dennis Lormel's (“Lormel”) testimony that Arabs are an inherent risk to banks, combined with Marshall's testimony that she recognized Life for Relief's ethnicity as Arab and that part of her work team's responsibility at BANA was to assess risk, prove that BANA intentionally discriminated against Life for Relief based on its Arab ethnicity being an inherent risk.

         The Court finds that a reasonable jury could have concluded that Life for Relief did not meet its ultimate burden of proving that BANA intentionally discriminated against Life for Relief. After reviewing the parties' arguments, the Court concludes that the Jury's verdict was not unreasonable in light of the evidence presented at trial. A new trial is not warranted on this ground.

         C. Golden Rule

         Life for Relief argues that the Court should grant a new trial because Defense Counsel made improper “Golden Rule” arguments during opening and closing statements by repeatedly asking the Jury to put themselves in Marshall, Digsby, or Stone's shoes. BANA argues that it did not ask the Jury to put themselves in anyone's shoes, but rather asked the Jury to assess what Marshall and others actually thought, since the central question the Jury had to determine was whether BANA was motivated by discrimination in closing the account. BANA argues that Defense Counsel's arguments addressed this standard, which was proper. BANA further argues that even if it had made Golden Rule arguments, the Court's jury instructions were sufficient to cure any prejudice. BANA also notes that Life for Relief did not object to the alleged Golden Rule arguments during opening or closing.

         Golden Rule arguments ask the jury to put themselves in a party's place, inviting decision based on bias and prejudice rather than consideration of the facts. Mich. First Credit Union v. Cumis Ins. Soc., 641 F.3d 240, 249 (6th Cir. 2011). In assessing whether the verdict was influenced by improper argument, the court looks at the totality of the circumstances, including the nature and frequency of the comments, their possible relevancy to the real issues before the jury, the manner in which the parties ...


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