### The Honorable Rodney S. Webb, Chief Judge, United State s 1 

### District Court for the District of North Dakota. ___________ No. 95-3777

___________ Ronald D. Dole, * * Plaintiff/Appellant, * * v. * * USA Waste Services, Inc., * a corporation; * * Defendant/Appellee, * Appeal from the United States * District Court for the USA Of North Dakota, Inc.; * District of North Dakota. * Defendant, * * Donald Moorhead, an individual; * Big Dipper Enterprises, Inc., * a corporation; * John R. Beardmore, an * individual; * * Defendants/Appellees, * * Northern Waste Systems, Inc., * a corporation, * * Defendant. *

___________ Submitted: October 24, 1996 Filed: November 19, 1996

___________ Before WOLLMAN, FLOYD R. GIBSON, and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge.
Ronal dD. Dole brought state law claims of deceit against variou s defendants. The district court granted summary judgment 1

### The record indicates that Dole's attorney sought to include 2 

### sucha term in the agreement, but that Beardmore's attorne y rejected these proposals. -2- for defendants USA Waste Services, Inc. ("USA Wa ste") and Donald Moorhead. A jury returned a verdict for the remaining defe ndants. Dole appeals both the grant of summary judgment and the verdict. We affirm.

I. BACKGROUND In 1976, Dole acquired 320 acres of land near Gwinner, North Dakota. Dole operated a landf ill on portions of the property until 1978. At that time, Dole sold thirty-two acres of the property, including the landfill ope ration, to defendant John R. Beardmore. After the sale, Beardmore' s wholly owned company, Big Dipper Enterprises, Inc. ("Big Dipper"), operate d the landfill.

In1990, Beardmore offered to buy Dole's remaining 288 acres
. Negotiations culminated in April of 1991 with a contract for sale in which Big Dipper agreed to purchase Dole's land for $591,000. A side agreement anticipated that Big Dipper would then sell all 320 acres and the landfill operationto a third company. In such a case, Dole would be entitled to furth er consideration, depending on the structure of the subsequen t transaction. The agr eement did not, however, entitle Dole to participate in any "back-end" stock transaction, by which Beardmore would receiv e shares of an acquiring company as consideration for selling Big Dipper's interest. 2
During this time, Beardmore pursued contacts with several other waste disposal companies, seeking to sell Big Dipper's interest in the operation
. Beardmore could not c omplete a deal, however, and was thus unable to meet the original closing deadline and two extensions. In October of 1991, Dol e agreed to extend the

### Dole had, in fact, introduced Beardmore to USA Waste's CEO, 3 

### Donald Moorhead, at some point in 1990. According to Dole, "[t]he purpose of the contact was to determine if [Moorhead] would b e interested in buying the Gwinner landfill." Appellant's Brief at 8. -3- clos ing deadline a third time. The October extension agreement als o contained a provision entitling Dole to further consideration in the event of a subsequent sale of the landfill and a paragraph that provided that: "Be ardmore shall promptly furnish to Dole true copies of all proposals , offers , contracts, and other documents showing any potential and actua l sales, t ransfers, and assignments (whole or partial) of the . .
. landfill."

In October of 1991, Beardmore finally secured a deal with a thir d company , defendant USA Waste. Beardmore mortgaged all of his company' s 3 interest in the land to USA Waste in exchange for a $600,000 loan. With this cas h from USA Waste, Beardmore was now able to pay for Dole's 28 8 acres, and completed the purchase. After acquiring Dole's land, Big Dippe r merged with a subsidiary of USA Waste. Under the merger, Big Dipper was the sur viving corporation and became a wholly owned subsidiary of US A Waste. In return, Beardmore received 250,000 shares of USA Waste stock, a "put" l etter from USA Waste CEO Donald Moorhead and another USA Wast e shareholder that obligated them to buy Beardmore's shares at his option, and a royalty agreement that entitled Beardmore to five percent of certain revenues from the landfill.
Dole brought suit, claiming that he was not informed of the Bi g Dipper -USAWaste deal as his October agreement with Beardmore required
. Specifically, Dole cl aims the defendants suppressed information about the back- end stock payment to Beardmore, in which Dole was not entitled t o participate. As a result, Dole claims, he was not aware of the possibilit y that a Big Dipper sale to a third company might include a back-end stock deal, and was unable to

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protect himself from what he contends was inadequate consideration for his 288 acres. The district court granted summary judgment in favor of USA Was te and Moorh ead. At trial, Dole elected to proceed against Beardmore and th e remaining defendants on a claim of deceit. See N.D. Cent. Code § 9-10-02 (1987). After a seven-day trial, a jury returned a verdict for th e remaining defendants. Dole appeals the grant of summary judgment and the district court's denial of his motion for a new trial.

II. DISCUSSION

A. Summary Judgment for USA Waste
On appeal of a summary judgment orde r, we apply the same standard as the district court, reviewing de novo. Bank of America Nat'l Trust & Sav. Assoc. v. Shirley , 96 F.3d 1108, 1111 (8th Cir. 1996). Summary judgment is appropriate if the record shows no material facts in dispute and that one party is entitled to judgment as a matter of law. Id. ; Fed. R. Civ. P. 56(c). Dole's claim against USA Waste and Moorhead is premised on sect ion 9- 10-02(3) of the North Dakota statutes. Under se ction 9-10-02(3), one form of deceit is "[t]he s uppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead fo r want of communication of that fact." Actions fo r deceit under the statute "c learlyrequire that the defendant have a duty to disclose as a prerequisite to liabi lity." Hellman v. Thiele , 413 N.W.2d 321, 328 (N.D. 1987). We agree with the district court that Dole has produced no evidenc e that indicates USA Waste or Moorhead owed him any duty of disclosure.

### -5- Dole first argues that USA Waste and Moorhead were "sufficientl y involvedin the process by which Mr. Dole was relieved of his acreage to face liability . . . directly." Appellant's Brief at 28. USA Waste and Moorhead were, of cou rse, actively negotiating to acquire Beardmore's and Big Dipper's interests in the land after Big Dip per completed its purchase of Dole's 288 acres. Dole fails to show, however, that the USA Waste-Big Dippe r negotiations gave rise to any duty owed by USA Waste to him . H e produced no evidence, and indeed does not argue, that USA Waste or Moorhea d were directly or substantially involved in the Dole-Big Dippe r negotiations.
This cas e is distinguishable from four North Dakota cases cited by Dole for the proposit ion that "non-parties to a business transaction [may be] liable for deceit for having suppressed relevant information. " Appellant's Brief at 30 (citing Dewey v. Lutz , 4 62 N.W.2d 435 (N.D. 1990); West v. Carlson , 454 N.W.2d 307 (N.D. 1990); Ostlund Chem. Co. v. Norwest Bank , 417 N.W.2d 833 (N.D. 1988); and Holcomb v. Zinke , 365 N.W.2d 50 7 (N.D. 1985)). Contrary to Dole's assertion, West and Holcomb both involve d parties dealing directly with each other in landtransactions. In Ostlund Chemical , the court held that a bank assumed a duty of disclosure onl y after it voluntarily responded to a request for information from a customer's creditor. 417 N.W.2d at 836. And in Dewey , two defendant s negotiated directly with the plaintiffs to furth er a scheme to defraud the plaintiffs to the benefit of a third defendant. Dewey , 462 N.W.2d at 437- 38. None of these cases are analogous to the role and conduct of USA Wast e withrespect to the Gwinner landfill negotiations. The district cour t properly concluded that Dole failed, as a matter of law, to establish a duty of disclosure by USA Waste or Moorhead.
Dole alternatively argues that USA Waste and Moorhead ar e derivatively responsi ble for Beardmore's and Big Dipper's conduct because USA Waste and Big Dipper were joint venturers. Any

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possib le derivative liability by USA Waste and Moorhead is vitiated , however, by the jury's finding that Dole did not prove deceit by Beardmore and Big Dipper. At any rate, Dole's joint ventu re theory is unpersuasive.

Under North Dakota law, a joint venture has four elements:
(1) contribution by the parties of money, property, time, o r skill i n some common undertaking . . . ; (2) a proprietar y interest and right of mutual control over the engag ed property; (3) an express or implied agreement for the sharingof profits, and usually, but not necessarily, of losses; and (4 ) an express or implied contract showing a joint venture was formed.
Thompsonv. Danner , 507 N.W.2d 550, 556 (N.D. 1993) (citations omitted). Dole ar gues that Big Dipper and USA Waste engaged in a joint venture by pooling money and effort in the "common undertaking" of acquiring Dole's 288 acres. Other than conclusory assertions, Dole points to no evidence in the record of a proprietary interest and right of mutual control betwee n USAWaste and Big Dipper, an agreement for the sharing of profits an d losses, or an express or implied contract showing a joint venture
. Furt her, we are not impressed with Dole's assertion that USA Waste' s negotiations to acquire Big Dipper's interests s how a "common undertaking" to acq uire Dole's acreage, rather than a garden variety, arm's-lengt h transactionbetween independent companies. There is no support in th e record for Dole's claim of a joint venture, and the district court properl y granted summary judgment for USA Waste and Moorhead.

B. Motion for a New Trial

Dole moved for a new trial pursuant to Federal Rule of Civi l Proced ure 59 on the ground that defense counsel's misconduct unfairl y prejudiced the trial. In this diversity action, we review the distric t court's denial of Dole's new trial motion for abuse of

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discretion. Gray v. Bicknell , 86 F.3d 1472, 1480-81 (8th Cir. 1996).

Before trial, Dole moved in limine to exclude evidence of a prio r felonyconviction. In its ruling on the motion, the court stated tha t "[t]he court reserves ultimate ruling on the matters contained in th e motionin limine as it is not now in a position to know the context i n which each issue will be raised at trial." Dole v. USA Waste Servs., Inc. , No. A3-94-25, slip op. at 2 (D.N.D. filed May 19 , 1995). Nonetheless, the court decided as its "preliminary disposition" that evidence of the prior felony would be excluded. Id.
At trial, Dole's counsel called as a witness Harlan Klefstad, alocal banker
. During redirect examination by Dole's counsel, the followin g exchange occurred:
Q. So tell the jury, please, in your opinion is Mr. Dole an honorable person? A. He's been honorable with us, definitely. Dole's counsel: Thank you. We pass. Defens e counsel: Your honor, I believe that opens th e door t o make an examination about what he knows abou t this individual's history. The Court: Concerning reputation for being honorable , yes.
Trial Tr. Vol. V, at 112. Defense counsel then proceeded with re-cros s examination:
Q. Has Mr . Dole been convicted of a felony to you r knowledge? Dole's counsel: Your honor, I object. That is a harpoon of major proportions and totally unfair.

### -8- The Co urt: Sustained. The question will be stricken
. Th e jury is instructed to disregard. You will take n o knowle dge of the question and the answer that may hav e been suggest ed that has just been made. You're strongly ins tructedto disregard. Counsel, different subject
. Not that subject. Defense counsel: No further questions.
Id. at 113.
Dole claims that this "blatant violation" of the district court' s orde r in limine was sufficiently prejudicial to justify a new trial
. Misconduct by counsel may be so prejudicial as to require a new trial
. Sanders -El v. Wencewicz , 987 F.2d 483, 485 (8th Cir. 1993). We are no t per suaded, however, that counsel's questioning in this case was in fac t miscond uct, nor do we believe that it was sufficiently prejudicial t o warrant a new trial.

As the district court noted in denying the new trial motion, it s order in limine was "preliminary" in nature, andleft open the possibility that the issue of Dol e's prior conviction might be reconsidered at trial. Further, Dole's lawyer arguably opened the door to this inquiry by questi oning the witness about Dole's reputation for honesty. Befor e inquiri ng about the witness's knowledge of Dole's conviction, defens e counsel asked the court whether this permitted h im to question the witness "abo ut what he knows about [Dole's] history." The defense counsel' s conduct i n these circumstances simply does not rise to the level o f misconduct.

Furthe r, Dole has failed to show that this single question wa s prejudicial. The question was immediately stricken, and defense counsel made no further inquiries. The district court i mmediately gave a curative instruction, and concluded that the effect of th e question was minimal and that t he curative instruction was sufficient to allay any possibl e prejudice. We are also

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unpersuadedthat this one question rendered the trial unfair. The trial court did not abuse its discretion in rejecting Dole's motion on thi s basis.
Dole al so argues that defense counsel made inflammatory an d prej udicial remarks during closing arguments. During closing, defens e counsel repeatedly dr ew the jury's attention to Dole's background, asking "Who is Ron Dole?" and comparing his history to Beardmore's. Dole no w contends that the defendants impermissibly sought to prejudice the North Dak ota jury against Dole, who is from Indiana, by comparing him t o Beardmore, who is fro m North Dakota. Dole argues that this was a form of the "Golden Rule" argument, by which a local party improperly urges th e jury to "depart from neutrality and to decide the case on the basis o f per sonal interest and bias rather than on the evidence." Rojas v
. Richardson , 703 F.2d 186, 191 (5th Cir. 1983) (citations omitted).
Dole's po sition, however, is fatally undermined because his counsel failed to object to any of these statements at t rial. A party is entitled to a new trial on the basis of misconduct not ob jected to at trial only if that m isconduct rises to the level of plain error. Manning v. Lund a Constr. Co. , 953 F.2d 1090, 1092 (8th Cir. 1992). Plain error is generall y applic able only in "`extraordinary situations, [when] the error is s o prejudici al as to cause a miscarriage of justice.'" Id. at 1092-9 3 (quoting Thomure v. T ruck Ins. Exch. , 781 F.2d 141, 143 (8th Cir. 1986)). This is not such an extraordinary situation. We agree with the district court that while counsel's comments may have been "somewhat inflammatory and exhibited poor taste," they are not plain error requiring reversal
. Further, Dole's reliance on Rojas is misplaced, as he fails to mention tha t the court in that case reversed itself on rehear ing. Rojas v. Richardson , 713 F.2d 116, 118 (5t h Cir. 1983). On rehearing, the court held that the plaintiff's failure to object to a "Golden Rule" argument was not

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plainerror. Id. The district court in the present case properl y concluded that Dole was not entitled to a new trial.
C. Dole's Other Claims
Dole raises other arguments, including a challenge to the suffi ciency of the ev idence to support the verdict, and a challenge to certain jur y instructions given by the district court. We have examined these claims and find them to be without merit.

III. CONCLUSION

For the foregoing reasons, we affirm the district court's grant o f summary judgment to defendants USA Waste and Donald Moorhead and its denia l of Dole's motion for a new trial.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.