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Ultra Telecom, Inc. v. Merchant

Court of Appeals of Georgia, Fourth Division

July 11, 2014

ULTRA TELECOM, INC.
v.
MERCHANT et al

Batson motion. Gwinnett Superior Court. Before Judge Clark.

Wimberly Lawson Steckel Schneider & Stine, Paul Oliver, Danette Joslyn-Gaul, for appellant.

Mark V. Spix, for appellees.

DILLARD, Judge. Doyle, P. J., and Miller, J., concur.

OPINION

Page 624

Dillard, Judge.

In this civil action, Ultra Telecom, Inc. sued Salim Merchant I, Salim Merchant II, Salim Merchant III, Saddrudin Hussain, and Amazing Amusements Group, Inc. (collectively " Merchant" ), alleging claims of breach of contract and tortious interference with contractual relations. Following a jury verdict and judgment in Merchant's [328 Ga.App. 231] favor, Ultra Telecom appeals, arguing that the trial court erred in granting Merchant's Batson challenge to one of its peremptory strikes of a prospective juror. For the reasons set forth infra, we affirm.

The record, in relevant part, shows that Ultra Telecom filed a complaint against Merchant, alleging claims of breach of contract and tortious interference with contractual relations, both of which were in connection with an agreement to lease coin-operated gaming machines to convenience stores. Merchant answered, and, thereafter, the parties engaged in discovery.

The case then went to trial, and, during jury selection, counsel for Merchant asked

Page 625

the jury panel if anyone knew people of Asian Indian (" Indian" ) descent. In response, three members of the panel (Jurors 9, 14, and 17) identified themselves as being of Indian descent. At the conclusion of voir dire, Merchant's counsel objected that Ultra Telecom's counsel had used peremptory strikes to remove all three of these prospective jurors. Consequently, he requested that the court require Ultra Telecom's counsel to provide " nondiscriminatory reasons for the excusal of an entire ethnicity on the panel." Ultra Telecom's counsel responded that he struck prospective Jurors 9 and 17 because they were young, students, and lacked business experience. With regard to Juror 14, Ultra Telecom's counsel explained that this panel member stated that she was employed as a technical recruiter, but counsel was concerned about having too many people with technical backgrounds on the jury, and because he did not consider her technical background to be as strong as others, he did not think she would " add anything" to the jury.

The trial court then asked Merchant's counsel for a response, and he countered that in spite of opposing counsel's claim that he did not want young people or students on the jury, some students who were not of Indian descent, nevertheless, were not struck. Merchant's counsel further argued that the case did not involve issues requiring technical expertise and, therefore, opposing counsel's claim that he struck Juror 14 because of her comparatively low level of technical expertise was not a persuasive justification.

Ultra Telecom's counsel, thereafter, replied that he, in fact, struck other students in addition to Jurors 9 and 17, the two students of Indian descent, and although some students remained, he used his strikes on those he believed to be the least mature. With regard to Juror 14, Ultra Telecom's counsel reiterated that he struck her because he did not want to overload the jury with individuals in technology-related fields.

Following these arguments, the trial court found that Ultra Telecom's counsel's explanation that he struck Jurors 9 and 17 because of their youth and their status as students was valid and, [328 Ga.App. 232] thus, was not improperly based on their Indian ethnicity. However, the trial court did not find counsel's explanation for striking Juror 14 to be valid under Batson. Consequently, the trial court granted Merchant's challenge to that ...


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