Doug Roy, Jr., Individually v. Volkswagenwerk Aktiengesellschaft, a German Corporation, Defendants

Ninth Circuit

Doug Roy, Jr., Individually v. Volkswagenwerk Aktiengesellschaft, a German Corporation, Defendants

781 F.2d 670

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 29, 1985

Docket85-5587

StatusPublished

Cited by29 cases

This text of 781 F.2d 670 (Doug Roy, Jr., Individually v. Volkswagenwerk Aktiengesellschaft, a German Corporation, Defendants) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Doug Roy, Jr., Individually v. Volkswagenwerk Aktiengesellschaft, a German Corporation, Defendants, 781 F.2d 670 (9th Cir. 1985).

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Opinion

PER CURIAM:

Appellees made a timely motion for new trial within ten days after the judgment under Rule 59(b) of the Federal Rules of Civil Procedure. The ground specified was the insufficiency of the evidence to support the verdict. Petitioners argue that that basis for the motion was not advanced with sufficient particularity. A later document, filed after the ten-day period, furnished the detailed arguments. The initial motion was adequate to preserve the jurisdiction of the district court to rule on the motion. The later document was not an amendment advancing a new ground but, rather, it was an exposition of the original ground specified. Even if the later doc *671 ument were considered to be an amendment, such would be permitted. Pogue v. International Industries, Inc., 524 F.2d 342 (6th Cir.1975). 6A Moore’s Federal Practice 1159.09(2) at 59-204-209.

The district judge granted the motion on the ground of the insufficiency of the evidence to support the verdict, which was the ground specified in the appellees’ motion, and thus in full compliance with Rule 59(b). However, even had the ground of his order varied from that specified in appellees’ motion, Rule 59(d) specifically provides that the judge is free to grant the motion for a reason not stated in the original motion, provided he gives the parties notice and an opportunity to be heard on the matter. See 11 Wright and Miller, Practice and Procedure, Civil § 2813. The parties had an adequate opportunity to address, in briefs and at the hearing, the sufficiency of the evidence.

The district court had jurisdiction to grant the new trial under Rule 59 and that order, being an interlocutory order, is not appealable under 28 U.S.C. § 1291.

Appellants’ petition for rehearing and suggestion for rehearing en banc of the April 18, 1985 order dismissing the appeal are rejected.

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PER CURIAM:

Appellees made a timely motion for new trial within ten days after the judgment under Rule 59(b) of the Federal Rules of Civil Procedure. The ground specified was the insufficiency of the evidence to support the verdict. Petitioners argue that that basis for the motion was not advanced with sufficient particularity. A later document, filed after the ten-day period, furnished the detailed arguments. The initial motion was adequate to preserve the jurisdiction of the district court to rule on the motion. The later document was not an amendment advancing a new ground but, rather, it was an exposition of the original ground specified. Even if the later doc *671 ument were considered to be an amendment, such would be permitted. Pogue v. International Industries, Inc., 524 F.2d 342 (6th Cir.1975). 6A Moore’s Federal Practice 1159.09(2) at 59-204-209.

The district judge granted the motion on the ground of the insufficiency of the evidence to support the verdict, which was the ground specified in the appellees’ motion, and thus in full compliance with Rule 59(b). However, even had the ground of his order varied from that specified in appellees’ motion, Rule 59(d) specifically provides that the judge is free to grant the motion for a reason not stated in the original motion, provided he gives the parties notice and an opportunity to be heard on the matter. See 11 Wright and Miller, Practice and Procedure, Civil § 2813. The parties had an adequate opportunity to address, in briefs and at the hearing, the sufficiency of the evidence.

The district court had jurisdiction to grant the new trial under Rule 59 and that order, being an interlocutory order, is not appealable under 28 U.S.C. § 1291.

Appellants’ petition for rehearing and suggestion for rehearing en banc of the April 18, 1985 order dismissing the appeal are rejected.

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781 F.2d 670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doug-roy-jr-individually-v-volkswagenwerk-aktiengesellschaft-a-german-ca9-1985.

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