S.M v. J.K

• Decision Date: 27 August 2001
• Docket Number: DEFENDANT-APPELLANT-CROSS-APPELLEE,99-16960,PLAINTIFF-APPELLEE-CROSS-APPELLANT,Nos. 99-16184,s. 99-16184
• Parties: (9th Cir. 2001) S.M., <A HREF="#fr1-*" name="fn1-*">* , v. J.K.,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 914

262 F.3d 914 (9th Cir. 2001)

S.M.,^* PLAINTIFF-APPELLEE-CROSS-APPELLANT, v. J.K., DEFENDANT-APPELLANT-CROSS-APPELLEE.

Nos. 99-16184, 99-16960

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted May 14, 2001

Filed August 27, 2001

[Copyrighted Material Omitted]

Gary M. Levitt, David C. Schutter & Associates, Honolulu, Hawaii, for the plaintiff-appellee-cross-appellant.

Richard E. Wilson, Simons & Ichinose, Honolulu, Hawaii, for the plaintiff-appellee-cross-appellant.

Arthur B. Reinwald, Dennis E.W. O'Connor, Michael J. McGuigan, and Jason M. Tani, Reinwald, O'Connor & Marrack, Honolulu, Hawaii, for the defendant-appellant-cross-appellee.

Appeal from the United States District Court for the District of Hawai'i Francis I. Yamashita, Magistrate Judge, Presiding. D.C. No. CV 94-00181-FIY

Before: Betty B. Fletcher, William C. Canby, Jr., and Richard A. Paez, Circuit Judges.

Paez, Circuit Judge

OPINION

This nearly decade-old case arises from Defendant J.K.'s attempted sexual assault of his housekeeper, Plaintiff S.M. The magistrate judge twice declared a mistrial before the jury was able to reach a verdict. During the course of the second trial, the judge granted judgment as a matter of law for Defendant on, inter alia, Plaintiff's punitive damages claim. At the conclusion of the third trial, the jury found for Plaintiff on her assault and battery and intentional infliction of emotional distress claims, and awarded damages.

In Appeal No. 99-16184, Defendant challenges three evidentiary rulings. Of particular significance is the district court's exclusion, under Federal Rule of Evidence 412, of evidence of Plaintiff's prior, consensual sexual activity. We hold that such evidence may be excluded as a means of sanctioning a party, in this case Defendant, for failing to comply with the procedural requirements of Rule 412 and that Plaintiff's own motion to admit evidence that she had been molested as a child does not open the door to admission of evidence of her voluntary sexual conduct. We have jurisdiction over this appeal under 28 U.S.C. §§ 1291, and we affirm in all respects. In Appeal No. 99-16960, Plaintiff cross-appeals from the ruling under Federal Rule of Civil Procedure 50(a) on her punitive damages claim. Because Plaintiff failed to file a timely notice of cross-appeal, we dismiss the cross-appeal.

FACTUAL BACKGROUND

Plaintiff was employed as a housekeeper in the two homes Defendant owned in Kauai, Hawai'i. On September 8, 1992, Plaintiff and Defendant had breakfast together. Plaintiff alleged in her complaint that, while at breakfast, Defendant "offered to pay her $25,000 and also send her son to college if she would `take care of his needs' when he came to Hawai'i. He explained they were both consenting adults and his wife and her husband did not have to be told . .. ." Plaintiff alleged that she refused.

Upon their return to the house, Plaintiff and Defendant went to Defendant's wife's dressing room to inspect a broken light fixture. Plaintiff alleged that Defendant then assaulted her by "touching her, grabbing her genitals, grabbing her breasts, attempting to kiss her, and forcefully putting her hands on his genitals while he moaned." Plaintiff alleged that, during the next two days, Defendant made obscene phone calls to her and came to her house, which he had not done during the previous years of employment.

Plaintiff alleged that, after the assault, "the family life and emotional well being of [Plaintiff, her husband, and their son] [was] shattered . . . . [She] has been emotionally distressed as these incidents have brought back to her on a daily basis the violence and sex abuse of her childhood. It has also required her to use many kinds of medications, seek psychotherapy, and stop work of any type with others."

In her diversity suit against Defendant, Plaintiff sought damages for breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, violations of Hawai'i civil rights statutes, defamation, assault and battery, and loss of consortium. ¹ She also sought punitive damages. In addition to his other defenses, Defendant counterclaimed, alleging that Plaintiff "made a physical and sexual approach and contact with" him and that he "was embarrassed and emotionally distressed by this act." That counterclaim was voluntarily dismissed, and is not a subject of this appeal.

The parties consented to a jury trial before a magistrate judge. The case first went to trial on January 9, 1996. That trial ended in a mistrial three days later because the jury was able to hear the judge's confidential sidebar conversations with the attorneys. The case went to trial again on November 4, 1997. During that second trial, the magistrate judge granted judgment as a matter of law under Federal Rule of Civil Procedure 50(a) in favor of Defendant on every count in the complaint, including Plaintiff's request for punitive damages, except assault and battery and intentional infliction of emotional distress ("IIED"). When the jury deadlocked on the remaining counts, the court declared a mistrial.

Defendant moved for an entry of partial final judgment under Federal Rule of Civil Procedure 54(b) with regard to the court's ruling on the Rule 50(a) motion. The motion was denied. Plaintiff moved for reconsideration of the court's ruling with regard to the punitive damages claim, which the court also denied.

The assault and battery, and IIED claims went to jury trial for a final time on March 2, 1999. The jury returned a verdict for Plaintiff, finding that she was entitled to $200,000 in damages and that Defendant was responsible for 60 percent of Plaintiff's damages. He was ordered to pay $120,000. Defendant filed a notice of appeal on June 3, 1999. Plaintiff filed an untimely notice of cross-appeal on her punitive damages claim on September 8, 1999. See Fed. R. App. P. 4(a)(3) (notice of cross-appeal must be filed within 14 days of the notice of appeal).

STANDARD OF REVIEW

Evidentiary rulings are reviewed for an abuse of discretion. See, e.g., Defenders of Wildlife v. Bernal, 204 F.3d 920, 927 (9th Cir. 2000). To reverse on the basis of an erroneous evidentiary ruling, we must conclude not only that the district court abused its discretion, but also that the error was prejudicial. See, e.g., id. at 927-28. In reviewing the district court's exclusion of evidence as a sanction, we first engage in de novo review of whether the judge had the power to exclude the evidence. If the power exists, we review the imposition of the sanction for an abuse of discretion. Lewis v. Tele. Employees Credit Union, 87 F.3d 1537, 1556-57 (9th Cir. 1996).

We determine our own jurisdiction de novo. Milne v. Hillblom, 165 F.3d 733, 735 (9th Cir. 1999).

Discussion

A. THE EVIDENCE OF PLAINTIFF'S PRIOR SEXUAL HISTORY

Defendant first contends that the magistrate judge abused his discretion in excluding evidence that Plaintiff had engaged in an extramarital affair with a neighbor around the time of the assault. Prior to the second trial, Defendant had moved to introduce evidence of Plaintiff's sexual history under Federal Rule of Evidence 412, popularly known as the "Rape Shield" law. Rule 412 bars the admission of evidence offered to prove that the victim engaged in other sexual behavior or to prove the victim's sexual predisposition, Fed. R. Evid. 412(a)(1)-(2), unless the probative value outweighs the danger of harm to the victim and of unfair prejudice to any party, Fed. R. Evid. 412(b)(2).

In particular, Defendant sought to introduce evidence that Plaintiff had engaged in the extramarital affair, that she had been involved in a sexual relationship with a teacher while in high school, that she had propositioned a construction worker, and that she had been repeatedly sexually abused as a child. Plaintiff responded with a motion to exclude the evidence identified in Defendant's motion, as well as other evidence about Plaintiff's sexual history that had been revealed in discovery. In particular, Plaintiff argued that because Defendant's Rule 412 motion had not been filed under seal, as required by Federal Rule of Evidence 412(c)(2), all the evidence identified in that motion should be excluded. Further, Plaintiff argued that Defendant had not shown that the evidence's "probative value substantially outweigh[ed] the danger of harm to any victim and of unfair prejudice to any party." Fed. R. Evid. 412(b)(2). The court sanctioned Defendant for failing to file his motion under seal by denying his motion and granting Plaintiff's motion to exclude the evidence, "based upon the violation of the Rape Shield Law and public policy."

Defendant subsequently made "a brand new motion " to introduce Rule 412 evidence. Defendant wanted to introduce evidence of Plaintiff's extramarital affair to show that it was the affair, not the assault by Defendant, that had destroyed Plaintiff's marriage. Plaintiff herself then moved to introduce evidence of her childhood sexual abuse because her expert psychiatrist "considered these two events of[Plaintiff's] abused childhood as the basis for his [Post-Traumatic Stress Disorder] diagnosis." The court granted Plaintiff's motion, and invited Defendant to file a supplemental memorandum regarding any Rule 412 evidence that should now be admitted because Plaintiff had opened the door. Defendant responded, not with a legal argument, but with a list of incidents he wanted to introduce. A series of supplemental memoranda were exchanged.

The magistrate judge granted in part and denied in part Defendant's motion. The court excluded evidence of Plaintiff's sexual predisposition and voluntary sexual acts as per se barred by Rule 412, as well as the previously excluded evidence of the extramarital affair, on the ground that there was no need to reconsider the order excluding it as a sanction for violating Rule 412 procedures. However, with...