*1 relief, and I court, grant court’s authority the district having The established modify a sentence in in to affirm all for a district court to concur the court’s decision “expressly per- circumstance that is not deci- of the district court’s aspects other 3582(c), statute,” § by mitted 18 U.S.C. sion.
ironically that a time limit on this suggests authority should be set
judicially-created by rule-making au- appropriate “an Ante, at The
thority, not this court.” 453. limit, however, already time is set
one-year rule-making authority: an appropriate 2255(f). §
Congress. See 28 U.S.C. is, course, way a reliable to deter-
There CARDS, its self- mine when the court first made HALLMARK INCORPORATED, It did so at described “habeas motion.” parties gave Plaintiff-Appellee the time when it notice to order cause—a date that in its to show beyond one-year well this case was ought not fret statute of limitations. We MURLEY, L. Defendant- Janet any difficulty” might that “practical about Appellant. hypothetical from a scenario which arise No. 11-2855. thinks of a claim before the district court timely year expires one but fails to make Appeals, States Court motion. Prisoners encounter the same dif- Eighth Circuit. ficulty, but timeliness is determined based filing, on the date of not on the date of Sept. Submitted: 2012. The effect of rumination or realization. Filed: Jan. affirming action here is the district court’s dispense with a statute of limitations established statute: If a district court years
notices error two after statute run, begins
of limitations then it is free grant regard relief without to the one- But if the stat-
year statute of limitations. eliminated,
utory time limit to be then surely appropriate is a matter for an
legislative body, not this court. ground on which the district court by the
granted relief was not raised dis- by Daily one-year
trict court or within the 2255(f). by § period
limitations established any ground
It does not relate back to timely Daily’s original plead-
was raised 15(c)(1); Mayle v.
ing. See Fed.R.Civ.P.
Felix, 644, 662-64, U.S. S.Ct. (2005).
thus lacked imprisonment.
term of I would reverse *2 Robertson, argued, Teresa
Susan Ford MO, brief, City, Kansas Woody, A. appellant. *3 F. Aisenbrey, argued, George John C. German, Verschelden, Daniel W. Charles MO, brief, City, Kansas Blegen, E. appellee. for BYE, GRUENDER, and Before SHEPHERD, Judges. Circuit BYE, Judge. Circuit (“Hallmark”) Cards, Inc. sued Murley, employee, Janet for a its former separation agree- parties’ breach of the $860,000 jury won a verdict on ment and of contract claim. The district its breach a new Murley’s court1 denied motion for Murley arguing the appeals, trial. now delivering court erred in ad- to the verse inference instruction on Hallmark’s breach of con- the award modify excessive. We tract claim was affirm the decision of the district court. vice- Murley group served as Hallmark’s from 1999 to 2002. president marketing responsible she was capacity, In this development, business adver- product and research, had access to tising, and including Hall- confidential information research, plans, mark’s market business information. In Hall- and financial Murley’s position part eliminated mark corporate restructuring. of a negotiated sepa- Hallmark entered into a agreement ration which laid out the terms Murley’s departure. Pursuant agreement, Murley agreed not to work Fenner, Gary of Missouri. 1. The Honorable A. Judge for the Western District States District industry for a June 2010. At Hallmark’s greeting gift computer card or months, expert days solicit Hall- testified that the two lead- eighteen period review, any pro- ing up sixty-seven or to LuciData’s employees, mark disclose use information, documents had been or re- deleted from or confidential prietary computer, eight plus of which one folder or documents any tain business records Consequently, related to Hallmark. Hall- agreed also relating to Hallmark. She sought mark an adverse inference instruc- arising claims any release Hallmark from allowing tion infer exchange, Hall- from her termination. deliberately destroyed had those docu- severance mark offered *4 ments to conceal their contents. of payment, eighteen paid months COBRA objected instruction absent a benefits, services, outplacement executive finding by the court that in she had acted paid preparation years. tax for two and bad faith and that Hallmark had been non- expiration after the of her prejudiced by the deletion of those files. compete agreement, Murley accepted a conference, jury After a instruction the consulting assignment Recycled with Pa- Murley’s objection denied (“RPG”) $125,000. Greetings for per gave following and the instruction to the that in the Murley admits course of jury at the close of evidence: assignment, she disclosed to RPG confi- you If should that a party willfully find including dential Hallmark information destroyed evidence in order to prevent slides from Hallmark’s business model re- trial, in being presented you may its this design, regarding information Hallmark’s determining consider such destruction in buying process, long-term and consumer what inferences to draw from the evi- industry analysis gathered from Hall- may, dence or facts in this case. You Hallmark mark’s market research. was to, are required but not assume that the Murley’s unaware of disclosures until destroyed contents of the files when RPG Ameri- purchased was adverse, have been or detrimental to the Prior the of that Greetings. closing can Defendant. sale, Hall- Greetings American contacted 12, Appellant’s App. Instr. No. arrange third-party mark to review of $860,000, RPG’s records to ensure none of Hall- sought damages of $735,000 information was con- mark’s confidential consisting pay- of the severance third-party tained therein. The reviewer Hurley parties’ ment it made to under the uncovered a number of Hallmark’s docu- $125,000 Murley the agreement and ments the records and alerted Hall- for her exchange received from RPG findings. mark to its consulting respect services. With damages, of the district court in- amount 14, 2009, May On Hallmark filed suit jury structed the to award Hallmark “such Murley, breach of con- alleging fairly justly you sum as believe will trade, tract, secrets, misappropriation of compensate any damages for [Hallmark] conversion of Hallmark’s confidential infor- you believe sustained as a di- [Hallmark] mation, unjust During enrichment. [Murley’s] rect result of conduct.” that in discovery, Hallmark learned jury returned a verdict in Hallmark’s favor Clipper RPG’s investor Monitor had ar- exactly it in dam- and awarded ranged computer company for a forensic ages. make a copy called LuciData to Mur- seeking motion ley’s post-trial hard drive. LuciData forwarded that filed or, of law in the computer expert judgment to Hallmark’s as a matter copy Berkley v. & alternative, du Pont de Nemours & Co. grounds a new trial on the Inc., 620 F.2d Cir. in- the district court’s adverse 1980). given improperly had been struction excessive and a result verdict was made clear in Stevenson Our Court prejudice. or With passion that in a case R.R. Co. Union Pacific inference instruc- respect to the adverse evidence, involving alleged spoliation tion, Murley the district court had argued make two required a district court is that Mur- requisite findings not issued the in findings before an adverse inference in bad ley destroyed had the documents (1) “there must be struction is warranted: preju- faith and that Hallmark had been of intentional destruction indicat finding nonproduction their at trial. The diced (2) truth,” ing suppress a desire to motion, con- Murley’s district court denied finding must be a “[t]here (1) presented Hallmark had “suffi- cluding 739, 746, opposing party.” cient evidence that a reasonable could (8th Cir.2004). At the close of [Hallmark],” have found objection, over renewed dis identify any errors had failed to manifest *5 if jury trict court instructed the it fact, of law or and the verdict intentionally destroyed found had
was not excessive and did not indicate documents, it the Hallmark-related could passion prejudice. App. or Jt. 285. This infer the of those contents documents appeal followed. would have been adverse or detrimental to 12, Appellant’s App. her. Instr. No.
II was im Murley contends the instruction A. The Inference Instruction proper given Adverse because it was absent the by the court that she requisite findings Murley’s argu We first consider the in bad destroyed electronic evidence improper ment the court’s any prej faith and that Hallmark suffered delivery of an inference instruc adverse nonproduction udice as a result of its at a new trial. review tion entitles her to We trial. particular give a district court’s decision to the of the re- instructions for an abuse of discretion. first raised issue Trucking Corp., quired prejudice findings See v. Sather 78 bad faith and Slathar (8th Cir.1996). 415, trial, objected Hall- prior We consider when she instructions, whether the “taken request as mark’s for an adverse inference evidentiary light requested whole and viewed in of the evidence instruction and law, applicable ‘fairly adequately hearing regarding alleged and her deletion of submitted the issues in the case to the Hallmark’s documents. The district ” jury.’ Murley’s request, choosing v. Kar Kim denied instead Coop Grain Land Farms, Inc., 983, the evi- upon 199 F.3d Cir. to render its decision based 1999) Inc., (quoting Honeywell, presented v. dence at trial. At the close of White (8th Cir.1998)). 1270, evidence, Murley objec- 141 F.3d Be renewed her harmless, many instruction on cause errors are we will tion to the adverse inference court had not judgment grounds not reverse the unless the al that the district faith leged prejudicial. yet findings regarding error was See issued Wolfe Co., 1122, 1124(8th objec- her Mfg. prejudice. Gilmour The court overruled Cir.1998). will a new trial We order tion and submitted jury. Murley if or raised the the error “misled the had instruction probable post-trial effect on its verdict.” See E.I. issue a third time in a motion or, a matter law alterna- judgment litigation....” Am. Builders & Contrac- tively, a new which the court Mart, denied. Supply Inc., tors Inc. v. Roofers 1:11-CV-19, 2012 WL No. at *4 light Murley’s repeated efforts to (E.D.Mo. 2012). July In support of its requisite findings, elicit the we presume proposition, the court cited Process Con- require- court below was aware of our Intern., trols Inc. v. Emerson Process ment that a district court must find bad Mgmt, 4:10-CV-645, No. 2011 WL prejudice prior giving an ad- (E.D.Mo. 20, 2011) at *6 Oct. verse inference instruction. The evidence America, Menz v. New Holland North presented at trial strongly suggests both Cir.2006)— Inc. 440 F.3d were present. Murley’s suppress desire to both of which merely require “a finding.” the contents of the electronic evidence at Thus, the American Builders court’s re- reasonably suggested by issue is the fact quirement explicit of an finding would that she retained Hallmark-related docu- seem to be an addition of its own devise. years ments five past termination but them in forty-eight prior deleted hours holding Our may pro Stevenson
to an
of her
inspection
private computer.
There,
vide more context.
a district court
That
non-production
of those docu-
imposed an adverse inference instruction
ments
disadvantage
Hallmark in a
party
destroyed
found to have
case hinging
retention and
evidence
litigation
both
during
disclosure of Hallmark’s confidential infor-
discovery.
This to appears be an issue of first we conclude that a district court impression, only as the relevant precedent explicit findings must issue of bad faith in our prejudice Circuit comes from a district court to prior delivering an ad- opinion in which the U.S. District court for verse inference instruction. The minimal the Eastern judges District of Missouri noted trial in requiring burden to an on- explicit finding “[a]n of bad faith is re- the-record declaration in- is offset our quired impose to spolia- ensuring sanctions for: terests in that sanctions are im- tion that prior posed only thoughtful occurred to commencement after consideration from RPG. compensation of the evi- weighing appropriate
and an to the amount Mur- based its entitlement dence. the fact that by RPG on ley paid was court here did Although the district rested, in large to RPG Murley’s value of bad faith and explicit findings issue not materials and on her disclosure of part, it in such engaged we believe prejudice, Hallmark. belonged information issuing the adverse consideration in favor of returned a verdict The district court inference instruction. Hallmark, awarding it dam- be required findings was reminded ages payments. sum of both —the fore, and chose during, and after was exces- contends that the verdict in uphold to deliver and nevertheless therefore, and, the district sive strongly sup Its decision is struction. denying her motion abused its discretion evidence that deleted ported for a new trial. Hallmark-related documents number of of a motion We review denial be private computer just hours from a new trial for a “clear” abuse of inspection it was scheduled for fore —evi discretion, key question being with the object not at dence to which did necessary pre trial is whether a new And, prejudice, Hall respect trial. with justice. Harrison v. miscarriage vent a undoubtedly have benefitted mark Co., Trucking 312 F.3d Purdy Bros. actual and ex producing from documents Cir.2002). A new trial should be a trial amining their contents at about weighs heavily if the granted evidence of confidential ma retention and disclosure the verdict. States v. Rod terials, providing third-party rather than (8th Cir.1987). riguez, 812 In testimony as to their once-existence. damage if a award aris determining When overwhelming evidence of bad light of the excessive, claim is ing from state-law before guides inquiry. Eng law our state case court, we conclude its failure to issue ex Mfg. land & Western Gulf delivering the other plicit findings before (8th Cir.1984). Missouri, warranted inference instruc wise *7 jury’s defer to the deci generally “courts harmless error which did not tion was damages, amount concerning sion the of Murley. Taylor See Lowe v. prejudice jury’s when and overturn verdict Co., 68 Steel Products (1) the demonstrate that some defendants Cir.1967) (“The applies harmless error rule the event occurred at trial that incited bias instructions.”). Accordingly, [jury] to jury of the the ver prejudice Murley not entitled to a new trial on the ... grossly dict is so excessive so as to Burry v. basis of the instruction. See Syner shock the conscience of the court.” Inc., Plumbing Heating, & 243 Eustis Hurst, 477 949 getics, Inc. v. F.3d (8th Cir.2001) (affirming a F.3d Cir.2007) City v. Kansas (quoting Giddens of a motion for a new district court’s denial (Mo.2000) Co., Ry. S. S.W.3d delivery jury trial where of instruction did (internal banc)) quotations en (per curiam movant). not prejudice omitted). Jury B. The Verdict $735,000, respect to the Mur- With claims, Hallmark was not entitled to ley Hall- contends For its breach-of-contract the payment in an amount re- a return of its full under sought damages mark $735,000 because payment parties’ separation agreement flecting its severance $125,000 Murley fulfilled several material terms of Murley the received (e.g., enjoyed the release of liabili- she would have had the contract agreement that completed been both non-compete provisions). By Under sides.” Id. ty and $735,000 circumstances, Hallmark more awarding we cannot characterize than its the the jury’s payment, placed reimbursement of Hallmark’s severance award the separation position the Hallmark in a better than it original payment under “glar- excessive” or find itself had not breached the agreement “grossly agreement. jury’s the evidence.” See of the ingly unwarranted award $125,000 Tuterri’s, was, therefore, payment by Steam Boiler RPG Inc. Hartford improper. and Ins. 894 S.W.2d We vacate the award and re- Inspection Hallmark’s terms mand for the district court to reduce the (Mo.Ct.App.1995). clearly in- fee award separation agreement appropriately. under the in priority preserving dicated its confiden- Ill am-
tiality. presented At only retained ple evidence that not reasons, foregoing For the we remand Hallmark’s confidential ma- but disclosed modify judgment with directions to the competitor to a in violation of the terials opin- reflect an award consistent with this agree- primary purpose terms and modified, judgment ion. So the will stand Thus, ment. the determination that affirmed. Hallmark was entitled to a full refund of $785,000 against weight SHEPHERD,
its is not the concurring part a new the evidence and does not warrant concurring judgment. Co., 72 trial. See Pulla v. Amoco Oil 11(B) majori- I concur in section of the (8th Cir.1995) (“[Wjhere 648, 656 the basis ty’s opinion, and I concur in the result ruling of a Rule 59 is that the verdict is which affirms the district court’s denial evidence, weight not of the and Murley’s request for a new trial made
where the district court balances and based on the adverse inference instruction weighs proper the evidence based on however, argument. separately, I write standards, of a legal court’s denial majori- not in the emphasize join do unassailable.”) virtually Rule 59 motion is 11(A) that, ty’s decision section until (internal omitted). citation not been re- today, has quired “explicit” findings to make of bad respect remaining With issuing award, Murley argues inference instruction. As I read Hallmark can claim no entitlement to her cases, requirement that the district compensation by consulting RPG for ser *8 already findings court make such well agree. vices unrelated to Hallmark. We I in the judgment, established. concur contract, a “In an action for breach of however, any because I believe error may recover the benefit of his or plaintiff light this case was harmless in of the bargain damages naturally as well as prejudice. of faith and evidence bad by proximately caused the breach and reasonably majority has determined that our damages that could have been The require “explicit” an contemplated by prior the defendant at the time cases did not finding prejudice v. of bad faith and before agreement.” Guidry Charter (Mo. Commc’ns, Inc., 520, instruc- 533 issuance of the adverse inference 269 S.W.3d E.D.2008) (internal omitted). tion, finding App. citation and thus we can infer that the Moreover, made the fact that the instruction “the law cannot elevate non- was with charac- position disagree a better than was issued. I this breaching party to ability in its to Clearly, our dice suffered prior terization of our cases. Thus, finding a required jury. cases have of this to the present evidence prejudice be made before majority’s in the deci- respectfully concur See Menz v. New issuing the instruction. affirm the denial of a new trial. sion to Am., Inc., 1002, N. 440 F.3d Holland
(8th Cir.2006) (“[A] finding of bad faith is
necessary an adverse infer- giving before plaintiff a
ence instruction at trial evidence.”); the destruction of Morris (8th R.R.,
v. Pac. Union
Cir.2004) (“[A] finding required of intent is an infer- impose to the sanction of adverse America, UNITED STATES instruction.”); v. ence Stevenson Union Plaintiff-Appellee 739, 746, 748 Pac. R.R. Cir.2004) (“[TJhere finding be a must v. a indicating intentional destruction desire JOHNSON, Christopher Willie “There must be suppress to truth[J” Defendant-Appellant. finding opposing par- a Thus, ty[.]”). I fail to see a reason to No. 12-1226. impose “prospective” requiring a rule of an Appeals, States Court of issuing the “explicit” finding before ad- Eighth Circuit. require verse inference instruction. To findings” “explicit district court to make Sept. Submitted: 2012. opposed merely making “finding” Filed: Jan. seems to be a distinction without differ- constituted, the rule presently ence. As
requiring findings district courts to make prejudice prior issuing
of bad faith and be adverse instruction should to mean that the district court
understood findings
must in a manner to announce appellate
allow for review of its decision. court erred when it failed necessary
make im findings prior
posing the inference instruction. error,
Despite may this we still affirm if
the error is harmless. See Ondrisek
Hoffman, 698 F.3d Cir.
2012) (holding that error in instruc if requires
tion in a civil case reversal
error affects a substantial party’s rights). *9 agree majority with the that the error in
this case substantial is harmless.
rights light are not affected of the over her faith
whelming evidence of intentional
demonstrated destruc computer preju-
tion of the files and the