Floydell Nunn, Jr. v. County of Orange

Ninth Circuit

Floydell Nunn, Jr. v. County of Orange

418 F. App'x 618

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 4, 2011

Docket09-56563

StatusUnpublished

This text of 418 F. App'x 618 (Floydell Nunn, Jr. v. County of Orange) 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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Floydell Nunn, Jr. v. County of Orange, 418 F. App'x 618 (9th Cir. 2011).

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Opinion

MEMORANDUM **

The district court’s grant of a new trial must be reversed because an incorrect legal standard was applied.

“ ‘Generally, a district court abuses its discretion when it bases its decision on an erroneous view of the law.’ ” Beech Aircraft Corp. v. United States, 51 F.3d 834, 841 (9th Cir.1995) (per curiam) (quoting United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir.1993)). The Ninth Circuit standard for granting a new trial based on attorney misconduct under Federal Rule of Civil Procedure 59 is that “the flavor of the misconduct ‘must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.’” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270 (9th Cir.2000) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1117 (9th Cir.1983)). The district court did not apply the Ninth Circuit standard.

Appellant failed to advise either the district court or this court of the correct standard or the error. Nevertheless, regardless of whether appellant counsel’s violations of the district court’s orders were an attempt to inflame the jury, the verdict showed that the jury was not “influenced *619 by passion and prejudice.” Both the special finding that neither defendant acted with malice or reckless disregard of the plaintiffs rights and the very low $2,100 verdict evidence a calm jury, not one influenced by passion and prejudice.

This reversal will reinstate the jury verdict that was set aside. Our decision, however, is without prejudice to reconsidering whether sanctions are appropriate against plaintiffs counsel. We express no opinion on that question. Any sanctions available on remand are for the trial court in the first instance.

REVERSED with instructions to reinstate the jury’s verdict from the first trial and REMANDED for such further proceedings as may be appropriate.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

The district court’s grant of a new trial must be reversed because an incorrect legal standard was applied.

“ ‘Generally, a district court abuses its discretion when it bases its decision on an erroneous view of the law.’ ” Beech Aircraft Corp. v. United States, 51 F.3d 834, 841 (9th Cir.1995) (per curiam) (quoting United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir.1993)). The Ninth Circuit standard for granting a new trial based on attorney misconduct under Federal Rule of Civil Procedure 59 is that “the flavor of the misconduct ‘must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.’” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270 (9th Cir.2000) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1117 (9th Cir.1983)). The district court did not apply the Ninth Circuit standard.

Appellant failed to advise either the district court or this court of the correct standard or the error. Nevertheless, regardless of whether appellant counsel’s violations of the district court’s orders were an attempt to inflame the jury, the verdict showed that the jury was not “influenced *619 by passion and prejudice.” Both the special finding that neither defendant acted with malice or reckless disregard of the plaintiffs rights and the very low $2,100 verdict evidence a calm jury, not one influenced by passion and prejudice.

This reversal will reinstate the jury verdict that was set aside. Our decision, however, is without prejudice to reconsidering whether sanctions are appropriate against plaintiffs counsel. We express no opinion on that question. Any sanctions available on remand are for the trial court in the first instance.

REVERSED with instructions to reinstate the jury’s verdict from the first trial and REMANDED for such further proceedings as may be appropriate.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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418 F. App'x 618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/floydell-nunn-jr-v-county-of-orange-ca9-2011.

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