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RANDY M. POPE,
Plaintiff-Appellant,                                  No. 98-36192

v.                                                    D.C. No.
CV-95-01299-JJ
MAN-DATA, INC., dba Pacific Coast
Credit #1,                                            OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
John Jelderks, Magistrate Judge, Presiding

Argued and Submitted
March 6, 2000--Portland, Oregon

Filed April 18, 2000

Before: John T. Noonan, Susan P. Graber, and
Raymond C. Fisher, Circuit Judges.

Opinion by Judge Noonan

_________________________________________________________________

COUNSEL

Robert S. Sola, Michael C. Baxter, Law Offices of Baxter &
McLaughlin, Portland, Oregon, for the plaintiff-appellant.

Lisa Lear, Nickolas Dibert, Bullivant Houser Bailey, Port-
land, Oregon, for the defendant-appellee.

_________________________________________________________________
OPINION

NOONAN, Circuit Judge:

Randy M. Pope appeals the judgment of the district court
following a second trial in Pope's suit against Man-Data, Inc.,
d.b.a., Pacific Coast Credit (PCC). Pope sought damages for
collection abuses by PCC in violation of the Fair Debt Collec-
tion Practices Act (FDCPA), 15 U.S.C. S 1692 et seq. and the
Oregon Unlawful Debt Collection Practices Act (UDCPA),
ORS SS 646.639-646.656 (1999). The result of the second
trial was in PCC's favor.

We hold that the failure of the juror in the first trial to
acknowledge that she had been previously involved in any
significant dispute with a collection agency was not demon-
strated to have been dishonest. Nor was bias on the juror's
part demonstrated. Absent these demonstrations, a new trial
should not have been granted. Accordingly, we vacate the
judgment following the second trial and remand for an evi-
dentiary hearing on the issue of juror bias.

FACTS AND PROCEEDINGS

PCC attempted to collect a debt from Pope of $553.22 for
unpaid dental services. As part of its collection efforts, PCC
filed a small claims action against Pope, incurring $76.30 in
costs. After the small claims action was filed, Pope made a
$200.00 payment to PCC. PCC deposited this payment into its
client trust account and issued itself a check for $76.30 as
reimbursement for the filing fees and service costs in the
small claims action. PCC applied the remaining $123.70 to
Mr. Pope's account, leaving a balance of $429.52. Pope
answered the small claims complaint and demanded a jury
trial. On August 21, 1995, PCC's attorney Jeffrey Hasson sent
a letter to Pope indicating that Pope still owed PCC $429.52.
PCC did not respond to Pope's demand for a jury trial within
the statutory period, and the small claims action against Pope
was dismissed. Pope alleged that PCC was not entitled to
court costs because it was not the prevailing party in the small
claims action and that its attempt to collect the $76.30 in costs
from Pope violated the FDCPA and the UDCPA.

Pope's suit against PCC was tried to a jury from August 12
to August 15, 1997.

During voir dire, the prospective jurors were asked if they
had been involved in any "significant dispute" or "serious
contentious dispute" with a collection agency. In providing
background information about themselves, they were also
asked to describe any litigation in which they had been
involved. Juror No. 4 offered no response to the questions
concerning any prior "significant" or "serious contentious"
disputes she may have had with collection agencies. As to liti-
gation, Juror No. 4 stated only that "we were currently
involved in a lawsuit over some property ownership dispute,
which was settled out of court."

The jury returned a verdict for Pope, awarding him $5,000
in compensatory damages and $100,000 in punitive damages.

Hassan, a lawyer, had represented PCC during the activities
for which it was held liable. Puzzled by the trial's outcome,
Hassan obtained a list of the jurors' names and ran a search
of the public records through Courtlink for each of the jurors.
He found the following:

        In 1987 Juror No. 4 and her husband were sued in
       county court for $95 for a dishonored check. Service
       was not obtained against Juror No. 4. A default judg-
       ment was issued against the juror's husband. The
       judgment was unsatisfied, and the case closed. The
       lawyer for the plaintiff was Robert Swider, who
       defended PCC in the suit bought by Pope.

        Again in 1987 Juror No. 4 and her husband were
       jointly sued in county court by Capital Credit and
       Collection for $556.21. Default judgment was
       entered. The wages of the juror's husband were gar-
       nished. The plaintiff was represented by Jeffrey Has-
       san himself.

        In 1990 Juror No. 4 and her husband were again
       sued in county court by Capital Credit and Collec-
       tion, represented by Hassan. The amount sought was
       $546.83 for medical services. Default judgment was
       entered and was satisfied, with interest of $20.36,
       only on January 8, 1997.

PCC moved for a new trial on the basis of this information.
The magistrate judge heard argument but did not conduct an
evidentiary hearing. Counsel for Pope noted that Juror No. 4
had expressed reluctance to serve because she was the pri-
mary caregiver of her three children. Counsel for PCC argued
that she had "essentially told a mistruth when she didn't speak
up." In a written opinion, the magistrate judge found it "most
unlikely" that Juror No. 4 would "simply forget being named
in several collection actions," especially as debt collection
efforts would have preceded the filing of the actions; the
juror, he ruled, had unquestionably been involved in "litiga-
tion." If she had answered truthfully, she would have been
challenged for cause. The motion for a new trial was granted.

The jury returned a verdict for PCC on all but one of the
other claims; as to it, the jury found that Pope had suffered no
damage. Pope's request for statutory damages and attorney
fees was denied. Judgment was entered for PCC.

Pope appeals.

ANALYSIS

[1] The Supreme Court has held "that to obtain a new trial
in such a situation [as ours], a party must first demonstrate
that a juror failed to answer honestly a material question on
voir dire, and then further show that a correct response would
have provided a valid basis for a challenge for cause." McDo-
nough Power Equipment, Inc. v. Greenwood, 464 U.S. 548,
556 (1984). A "mistaken, though honest response to a ques-
tion," the court added, does not meet this test. Id. at 555. PCC
characterizes the opinion of the court, incorrectly, as a "plu-
rality opinion." Authored by Justice Rehnquist, it was con-
curred in as the opinion of the court by seven justices.

[2] PCC did not demonstrate that Juror No. 4 answered dis-
honestly. PCC made plausible arguments that she had; the
magistrate judge offered plausible reasons why she might not
have forgotten her brushes with the debt collectors. Plausible
argumentation and plausible reasoning do not rise to the level
of demonstration. An evidentiary hearing would normally be
necessary for demonstration of dishonesty of a juror to be
made. Such a hearing was not held.

[3] Under McDonough, the trial court did have, as Justice
Blackmun's concurrence expressed it, the option "to order a
post-trial hearing at which the movant has the opportunity to
demonstrate actual bias or, in exceptional circumstances, that
the facts are such that bias is to be inferred." McDonough,
464 U.S. at 556-57 (Blackmun, J., concurring). We have
stated categorically: "A court confronted with a colorable
claim of juror bias must undertake an investigation of the rele-
vant facts and circumstances." Dyer v. Calderon, 151 F.3d
970, 974 (9th Cir. 1998), cert. denied, 525 U.S. 1033 (1998).
No such investigation was undertaken here.

[4] As neither dishonesty nor bias on the part of Juror No.
4 was demonstrated, it was error to grant the new trial. All of
the proceedings in the new trial are without effect. Upon
remand, the district court must conduct an evidentiary hearing
consistent with McDonough and Dyer. Under McDonough, a
new trial is warranted only if the district court finds that the
juror's voir dire responses were dishonest, rather than merely
mistaken, and that her reasons for making the dishonest
response call her impartiality into question. McDonough, 464
U.S. at 556. Absent such a finding, the first verdict must be
reinstated.

[5] Pope also contends on appeal that the district court
erred when it determined in the second trial that PCC's
attempt to collect the costs of filing a small claims action
against Pope was not improper. Although we need not reach
this issue, it may arise on remand if the district court deter-
mines after a hearing that Juror No. 4 actually harbored bias.
Therefore, we address it now in the interest of judicial econ-
omy. We agree with Pope's argument.

[6] Pope made a $200 payment to PCC. PCC reimbursed
itself for the small claims filing fee out of Pope's $200 pay-
ment. It did not credit the full $200 to Pope's debt of $553.22.
Instead, it credited only $123.70 that remained after it had
deducted $76.30 in small claims costs. The resulting balance
was $429.52. This was not a matter of an internal allocation
of funds within PCC, PCC increased Pope's account by the
amount of the small claims costs and then attempted to collect
this greater amount.

[7] PCC contends on appeal that under Oregon law it was
entitled to collect court costs from Pope. However, ORS sec-
tion 46.485 provides that "the prevailing party shall be enti-
tled to a judgment for the small claims filing fees and service
expenses paid by the party and the prevailing party fee pro-
vided for in ORS 20.190." PCC was not the prevailing party
in the small claims action and therefore was not entitled to
costs.

The trial court on remand should award an attorneys' fee
based on counsel's work in the original proceeding, on
appeal, and on remand. c.f. Dias v. Bank of Hawaii, 732 F.2d
1401, 1403 (1984). Accordingly, the judgment for PCC is
REVERSED. The case is REMANDED so that an evidentiary
hearing can be held.