044184P.pdf   05/18/2006  Gerald M. Dunne  v.  Peter E. Libbra
   U.S. Court of Appeals Case No:  04-4184
   Eastern District of Missouri   
   [PUBLISHED] [Loken, Author, with McMillian and Melloy, Circuit Judges]
   Civil case - Fraud. Although plaintiff's claim that the district court
   erred in its burden of proof instruction was not preserved, the claim fails
   on the merits, as the Missouri Supreme Court has repeatedly held that the
   standard of proof for fraud is preponderance of the evidence, and that is
   the standard contained in the district court's instruction; defendant
   produced sufficient evidence to permit the jury to find plaintiff acted with
   fraudulent intent; district court's ex parte communication with the jury
   and failure to give counsel an opportunity to object to the response does
   not require reversal if substantive rights were not adversely affected; here,
   it is highly improbable that a different verdict would have resulted, and
   the district court did not err in denying plaintiff's motion for new trial;
   district court did not abuse its discretion in denying plaintiff's post-
   verdict motion to amend his pleadings to add a Missouri Blue Sky Law
   claim.