Obsidian Fin. Grp., LLC v. Cox, 3:11-cv-57-HZ
| Decision Date | 27 March 2012 |
| Docket Number | No. 3:11-cv-57-HZ,3:11-cv-57-HZ |
| Parties | OBSIDIAN FINANCE GROUP, LLC, and KEVIN D. PADRICK, Plaintiffs, v. CRYSTAL COX, Defendant. |
| Court | U.S. District Court — District of Oregon |
Steven M. Wilker
David S. Aman
TONKON TORP LLP
Attorneys for Plaintiffs
Benjamin N. Souede
ANGELI LAW GROUP, LLC
Eugene Volokh
MAYER BROWN, LLP
UCLA School of Law
Attorneys for Defendant
Richard D. McLeod
KLARQUIST SPARKMAN, LLP
ELECTRONIC FRONTIER FOUNDATION
Attorneys for Amicus Curiae Electronic Frontier Foundation
After a one-day trial on November 29, 2011, the jury awarded $2.5 million in damages to plaintiffs Obsidian Finance Group, LLC and Kevin Padrick1 on plaintiffs' defamation claim brought against defendant Crystal Cox.2 Judgment was filed on December 8, 2011.
Defendant moves for a new trial, arguing that the jury instructions misstated the law and that the jury verdict is excessive. I deny the motion.
As the previous Opinions in this case explain, the defamation claim brought by plaintiffsconcerned blog posts made by defendant about plaintiffs. As a result of summary judgment rulings, one particular blog post, dated December 25, 2010 and posted on bankruptcycorruption.com, remained at issue for trial. In a September 9, 2011 Jury Trial Management Order, I required the parties to file, one week before trial, various pretrial documents, including trial memoranda and proposed jury instructions. Dkt #39. That Order also indicated that motions in limine and objections to witnesses and exhibits were to be presented orally the morning of trial. Id.
As a result of discovery issues, plaintiffs were scheduled to take defendant's deposition at the courthouse the day before trial. Dkt #57. Argument on a motion to compel filed by plaintiffs was set for the same date. Dkt #68. On November 16, 2011, I denied a motion to compel by defendant which raised several legal issues. Dkt #70. Among other rulings, I specifically instructed defendant that she could raise her legal arguments "regarding her status as 'media,' application of retraction statutes, privilege, actual malice, and Padrick's status as a public figure," in her "trial memorandum, due on November 22, 2011." Id.
On November 21, 2011, defendant filed a trial memorandum, an exhibit list, and a proposed verdict form. Dkt #s 81, 82, 83. She filed no jury instructions. On November 28, 2011, defendant filed written objections to plaintiffs' witnesses and written objections to plaintiffs' exhibits, despite the Jury Trial Management Order's express directive that these were to be presented orally the morning of trial. Dkt #s 85, 86.
Dkt #89.
On November 30, 2011, the day after trial, I filed the written opinion explaining my oral rulings on the legal issues. Dkt #95. The new trial motion attacks many of those rulings, as well as the amount of the verdict awarded by the jury.
STANDARDS
The court may grant a new trial "on all or some of the issues-and to any party . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court[.]" Fed. R. Civ. P. 59(a)(1)(A).
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. We have held that the trial court may grant a new trial 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.
Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (citation and internal quotation marks omitted). Erroneous jury instructions, as well as the failure to give adequate instructions, may be the basis for a new trial under Rule 59(a). Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990). The trial court has discretion in deciding whether to grant a new trial. Freund v. Nycomed Amersham, 347 F.3d 752, 764 n.13 (9th Cir. 2003).
Under Federal Rule of Civil Procedure 51, a party may assign as error an instruction actually given, or may assign as error the failure to give a properly requested instruction, if the party has properly objected. Fed. R. Civ. P. 51(d)(1). "A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection." Fed. R. Civ. P. 51(c)(1). When the court, before instructions and arguments are delivered to the jury, gives the parties the opportunity to object to an instruction, or to the failure to give an instruction, on the record and out of the presence of the jury, a party must make its objection at that time for the objection to be timely. Fed. R. Civ. P. 51(c)(2)(B) (). Otherwise, the "court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights." Fed. R. Civ. P. 51(d)(2).
Defendant failed to submit any proposed jury instructions, failed to expressly object to any of the instructions that were given, and failed to expressly object to the failure to give an instruction, despite being given the opportunity to do so in conformance with Rule 51(b). Dkt #102 (Trial Tr. at pp.182-83, 184). Defendant argues that the legal arguments presented in her trial memorandum sufficiently articulated her position on the law and that further argument about the jury instructions would have been futile, excusing her failure to expressly object.
I reject this argument. Although the Ninth Circuit recognizes a limited exception to the objection requirements of Rule 51 "where the district court is aware of a party's concerns andfurther objection would be unavailing[,]" the court has made clear that "the exception is available when (1) throughout the trial the party argued the disputed matter with the court, (2) it is clear from the record that the court knew the party's grounds for disagreement with the instruction, and (3) the party offered an alternative instruction." Medtronic, Inc. v. White, 526 F.3d 487, 495 (9th Cir. 2008) (citation, internal quotation marks, and brackets omitted).
Here, defendant raised the issues in her trial memorandum, but did not raise them again. During trial, she sought no reconsideration of the oral rulings on the legal issues made the previous day. Importantly, defendant offered no alternative instruction, despite being on notice for more than two months before trial that she had the opportunity to submit proposed instructions, despite a familiarity with the court's filing system, and despite filing other documents without leave of court. Although defendant was representing herself, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Defendant's pro se status does not excuse her duty to comply with procedural rules.
"Plain error review requires: (1) an error; (2) that the error be plain or obvious; (3) that the error have been prejudicial or affect substantial rights; and (4) that review be necessary to prevent a miscarriage of justice." Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 517 (9th Cir. 2004) (); see also Sherman v. Kasotakis, 314 F. Supp. 2d 843, 859-60 (N.D. Iowa 2004) () (quoting Rush v. Smith, 56 F.3d 918, 922 (8th Cir. 1995)).
Defendant ably raised several relevant legal issues in her trial memorandum. She repeatedly referred to herself as media which she contended insulated her from defamation lawsuits. Dkt #81 (Def.'s Tr. Mem.) at pp. 1-2. She alleged that the issues of the blog post were of public interest and that plaintiffs were public figures. Id. at p. 2 (); see also id. at p. 5 (). She claimed protection under the First Amendment. Id. at p. 6. She also argued that there was no proof of actual malice and thus, she was immune from liability. Id. at p. 4. She expressly cited New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Id. at p. 5.
Although defendant sufficiently raised these issues in her trial memorandum, as with most pro se litigants, defendant's arguments required some interpretation and clarification. Thus, while the argument that she was "media" appeared to be most directly related to her position that certain state statutes...
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