Ayoob v. Cor-Bon et al.

• Court: District Court, D. New Hampshire
• Decided: January 31, 2001
• Docket: CV-96-464-B
• Status: Published

Opinion

Ayoob v. Cor-Bon et a l . CV-96-464-B 01/31/01

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dorothy Avoob, et a l .

v. Civil No. 96-464-B

Cor-Bon Custom Bullet Co., et al.

O R D E R

Dorothy Ayoob seeks a new trial of Cor-Bon Custom Bullet

Company's breach of contract claim. She bases her claim on

"newly discovered evidence," suggesting that she made a $10,000

wire transfer to Cor-Bon which Cor-Bon failed to apply to her

outstanding balance. She asserts that if this evidence had been

presented to the jury, it would have reduced its award on the

counterclaim by $10,000. Cor-Bon concedes that Ayoob sent the

wire transfer but contends that it applied the $10,000 to other

invoices, and thus the wire transfer could not have affected the

jury's verdict. It also argues that the wire transfer evidence

does not qualify as "newly discovered" evidence because it was in Ayoob's possession prior to trial. I deny Ayoob's motion.

The First Circuit Court of Appeals has determined that

evidence offered in support of a new trial motion will not be

treated as newly discovered if the evidence could have been

discovered prior to trial by the moving party through the

exercise of due diligence. See Mitchell v. United States, 141

F.3d 8, 18 (1st Cir. 1998) . Here, it is undisputed that Ayoob

had the wire transfer evidence in her possession prior to trial.

Further, her only excuse for not producing the evidence earlier

is that she claims she did not keep the wire transfer records

with her other financial records and she did not recall the wire

transfer until the middle of trial when it was too late to admit

the evidence without causing Cor-Bon unfair prejudice.

Ordinarily, evidence cannot be treated as newly discovered if it

is in the moving party's possession prior to trial even if the

moving party is unaware of the evidence or fails to appreciate

its significance. See Atkinson v. Prudential Prop. Co., 43 F.3d

367, 371 n.3 (8th Cir. 1994). Such is the case here. If Ayoob

and her counsel had been reasonably diligent, they would have

discovered the wire transfer evidence well before trial. Thus,

Ayoob cannot rely on this evidence to support her new trial

- 2 - motion regardless of the effect that it might have had on the

jury's verdict if it had been admitted.

SO ORDERED.

Paul Barbadoro Chief Judge

January 31, 2001

cc: Robert Johnson, Esq. James Bassett, Esq. Mark Connot, Esq.

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