Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Aubert v. Robles

United States District Court, E.D. California

July 1, 2014

ESS'NN A. AUBERT, Plaintiff,


MICHAEL J. SENG, Magistrate Judge.


On April 1, 2010, Plaintiff, a state prisoner proceeding pro se and in forma pauperis, filed this action pursuant to 42 U.S.C. ยง 1983 claiming Defendant violated his Eighth Amendment rights by using excessive force against him while he was in custody at Kern Valley State Prison. (ECF No. 1.)

The matter came before the Court for trial by jury. On May 30, 2014, the jury rendered a verdict for the Defendant (ECF No. 71), and the Court entered judgment thereon on June 3, 2014. (ECF No. 74.)

Before this court is Plaintiff's motion for new trial brought pursuant to Federal Rules of Civil Procedure 59 and 60(b). (ECF No. 75.) Defendant filed an opposition to the motion on June 18, 2014. (ECF No. 76.) The time to file reply documents has passed and none were filed. This matter is deemed submitted.


A. Motion for New Trial

Federal Rule of Civil Procedure 59(a)(1) provides that: "The court may, on motion, grant a new trial on all or some of the issues-and to any party-as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court..."

Rule 59 does not specify the grounds on which a motion for a new trial may be granted. Zhang v. Am. Gem Seafoods, Inc. , 339 F.3d 1020, 1035 (9th Cir. 2003). Rather, the court is "bound by those grounds that have been historically recognized." Id . "Historically recognized grounds include, but are not limited to, claims that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.'" Molski v. M.J. Cable, Inc. , 481 F.3d 724, 729 (9th Cir. 2007) (quoting Montgomery Ward & Co. v. Duncan , 311 U.S. 243, 251 (1940)). A new trial may be granted only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice. Id . (quoting Passantino v. Johnson & Johnson Consumer Prods. , 212 F.3d 493, 510 n.15 (9th Cir. 2000)). "The grant of a new trial is confided almost entirely to the exercise of discretion on the part of the trial court.'" Murphy v. City of Long Beach , 914 F.2d 183, 186 (9th Cir. 1990) (quoting Allied Chem Corp. v. Daiflon, Inc. , 449 U.S. 33, 36 (1980)).

Where a party seeks a new trial based on arguments by opposing counsel that were not objected to at trial, a new trial is available only in "extraordinary cases." Hemmings v. Tidyman's Inc. , 285 F.3d 1174, 1193 (9th Cir. 2002); see also Bird v. Glacier Elec. Coop., Inc. , 255 F.3d 1136 (9th Cir. 2001) (granting new trial where, in closing argument, "counsel used incendiary racial and nationalistic terms"). There is a "high threshold' to claims of improper closing arguments in civil cases raised for the first time after trial, " and a new trial generally will be granted only if the "flavor of misconduct [by trial counsel] sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict." Hemmings , 285 F.3d at 1192-93 (9th Cir. 2002) (quoting Kaiser Steel Corp. v. Frank Coluccio Constr. Co. , 785 F.2d 656, 658 (9th Cir. 1986) and Kehr v. Smith Barney , 736 F.2d 1283, 1286 (9th Cir. 1994)). "The rationale for this high threshold is two-fold. First, raising an objection after the closing argument and before the jury begins deliberations permit[s] the judge to examine the alleged prejudice and to admonish... counsel or issue a curative instruction, if warranted.'" Id . (quoting Kaiser Steel , 785 F.2d at 658). "The second rationale stems from courts' concern that allowing a party to wait to raise the error until after the negative verdict encourages that party to sit silent in the face of claimed error." Id.

In applying this "high threshold, " the Court will consider whether the alleged error was "prejudicial and fundamentally unfair." Hemmings , 285 F.3d at 1193. In evaluating the likelihood of prejudice, the Court should consider "the totality of circumstances, including the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case, and the verdict itself." Id.

B. Motion for Relief from Judgment

Federal Rule of Civil Procedure 60(b) permits a district court to relieve a party from a final judgment on grounds of: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence...; (3) fraud..., misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied...; or (6) any other reason that justifies relief." Fed.R.Civ.P. 60(b). Motions brought for reasons (1), (2) and (3) must be brought "no more than a year after the entry of judgment or order or the date of the proceeding." Fed.R.Civ.P. 60(c)(1). The moving party bears the burden of demonstrating that relief under Rule 60(b) is appropriate. Cassidy v. Tenorio , 856 F.2d 1412, 1415 (9th Cir. 1988).

To prevail on a Rule 60(b)(3) motion, "the moving party must establish by clear and convincing evidence that a judgment was obtained by fraud, misrepresentation, or misconduct, and that the conduct complained of prevented the moving party from fully and fairly presenting the case." Lafarge Conseils Et ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.