United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
matter comes before me on Defendant Country Mutual Insurance
Co.'s ("Country Mutual") Motion for a New Trial
and Renewed Motion for Judgment as a Matter of Law , For
the reasons below, I DENY Country Mutual's Motions.
case arises out of a fire in 2012, in which the Mullers'
house, business (machine shop), and 1967 Mustang were all
damaged. After investigation, Country Mutual denied the
Mullers' claim, concluding that Mullers had intentionally
started the fire. The Mullers brought suit in August 2014 and
sought recovery for breach of express contract. [ 1 ].
claims culminated in an eight-day jury trial in June 2017.
Prior to trial, the Mullers successfully moved to exclude
evidence that they had been involved in four previous fires
at a house, motorhome, and commercial property in 1972, 1994,
2003 or 2004, and 2006, The jury found for the Mullers on
their breach of contract claim and awarded damages for $1,
082, 500. . These damages include $186, 000 in damages
related to structures, $570, 000 in damages related to
business property, $256, 000 in damages related to personal
property, $25, 000 in damages related to business income, and
$45, 000 in damages related to automobiles. .
Mutual now moves for a new trial and for renewed judgment as
a matter of law regarding replacement cost of personal
property. . Country Mutual argues a new trial is
warranted because: (1) it discovered new evidence that would
have changed the outcome of the trial; (2) the Court erred by
admitting evidence that the Mullers were not charged with a
crime; (3) the Court erred by instructing the jury that the
Mullers were not charged with a crime and by not instructing
the jury on the definition of reasonable doubt; (4) the Court
erred by not admitting the Mullers' prior fires; (5) the
Court erred by denying Country MutuaPs motion in limine
regarding evidence of replacement cost value; (6) the Court
erred by not granting judgment as a matter of law that
personal automotive parts were not covered by the policy; and
(7) the cumulative errors denied Country Mutual a fair trial.
. Country Mutual also renews its motion for judgment as
a matter of law regarding replacement cost of personal
court may, on motion, grant a new trial... 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). "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.'" Molski v. MJ. Cable,
Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting
Montgomery Ward & Co. v. Duncan, 311 U.S. 243,
251 (1940)). The court may grant a motion for a new trial on
the basis of newly discovered evidence. Defs, of Wildlife
v. Bernal, 204 F.3d 920, 929 (9th Cir. 2000).
"[T]he district court, in considering a Rule 59 motion
for new trial, is not required to view the trial evidence in
the light most favorable to the verdict. Instead, the
district court can weigh the evidence and assess the
credibility of the witnesses." Experience Hendrix
L.L.C. v. Hendrixlicensing.com Ltd, 762 F.3d
829, 842 (9th Cir. 2014).
addressing a renewed motion for judgment as a matter of law,
the Court must "uphold the jury's award if there was
any 'legally sufficient basis' to support it."
Id. (quoting Costa v. Desert Palace, Inc.,
299 F.3d 838, 859 (9th Cir. 2002)). "In making that
determination, the district court considers all of the
evidence in the record, drawing all reasonable inferences in
favor of the nonmoving party . ..; the court may not make any
credibility determinations or reweigh the evidence."
Trial on the Basis of Newly Discovered Evidence.
Mutual first argues the Court should grant a new trial on the
basis of newly discovered evidence.  at 4-6. After the
trial, Stephen Muller's sister, Jeanette Allured,
contacted Country Mutual and claimed she had information
showing the Mullers set several prior fires intentionally.
 at 4-6. In a statement and an interview with Country
Mutual, Ms. Allured alleged: (1) in 1994, Stephen Muller told
her that he intentionally set the 1994 fire; (2) Stephen
Muller had also told her that he intentionally set the 1972
house fire; (3) Stephen Muller's ex-wife, Lupe Cameron,
told Ms. Allured that she saw Rena Muller on the day of the
2003 or 2004 shop fire at the site of the fire, despite the
fact the Mullers said they were out of town that day; and (4)
Stephen Muller's daughter, Yvette Schneider, told Ms.
Allured that she thought her father tried to over-explain his
innocence in the 2006 garage fire by sharing detailed
information about the type of car that caught on fire.
Allured Decl.  at 1-5.
succeed on its motion, Country Mutual "must establish
that (1) the evidence was discovered after trial, (2) the
exercise of due diligence would not have resulted in the
evidence being discovered at an earlier stage and (3) the
newly discovered evidence is of such magnitude that
production of it earlier would likely have changed the
outcome of the case." Defs. of Wildlife, 204
F.3d at 929. Because the Mullers do not dispute that Ms.
Allured's statements are "newly discovered, " I
focus on the remaining two factors.
Whether Country Mutual exercised due diligence
Mutual argues it could not have discovered Ms. Allured, Lupe
Cameron, or Ms. Schneider through the exercise of due
diligence. Country Mutual's main arguments are that Ms.
Allured did not come up in a background check of Stephen
Muller, that Mr. Muller was not forthcoming about his
daughter's name or place of residence in a deposition,
that Country Mutual's investigator did not find anyone
related to the Mullers in California, and that the insurance
companies tied to the prior fires had no information, 
at 7-10. The Mullers argue that Country Mutual never asked
Stephen Muller about his siblings or followed up on the
information he gave about his children in depositions.
Response  at 6-13, "The application for a new trial
will be denied where it appears that the degree of activity
or diligence which led to the discovery of the evidence after
the trial would have produced it had it been exercised prior
thereto." United States y. Bransen, 142 F.2d
232, 235 (9th Cir. 1944). In Lavino v. Jamison, 230
F.2d 909 (9th Cir. 1956), the Ninth Circuit concluded that
the failure to locate a witness was excusable based in part
on conduct by the non-moving party. There, the appellants had
relied on the appellee's statements that they did not
know of the witness's whereabouts nor did they believe he
would appear at trial as a witness. Id. at 912.
Similarly, in Chang v. City of Albany, 150 F.R.D.
456 (N.D.N.Y.1993), the court concluded that the plaintiff
exercised due diligence in finding witnesses to his arrest.
The court noted there was some evidence the defendants knew
of the existence of key witnesses discovered post-trial by
the plaintiff. Id. at 460. The Chang court
also concluded, "[t]his is simply a case where the
witnesses were unknown to the parties and the pending action
unknown to the potential witnesses." Id. But in
Jay Edwards, Inc. v. New England Toyota Distributor,
Inc., 708 F.2d 814 (1st Cir. 1983), the court concluded
that a losing party had failed to show due diligence because
the "new evidence" consisted of computer printouts
that former employees had in their possession prior to trial.
Id. at 824-25. The court noted, "[w]e cannot be
impressed by the diligence of a party that fails to uncover
evidence during four years of discovery that it manages to
retrieve four weeks after losing the lawsuit."
Id. at 825.
in Jay Edwards, Inc., there is no evidence Country
Mutual knew of Ms. Allured's existence or knowledge prior
to trial. See708 F.2d 814. And Country Mutual had
little reason to seek out individuals from the Mullers'
past, particularly those without ties to the 2012 fires. On
the other hand, unlike in Lavino and Chang,
there is no evidence the Mullers hid Ms. Allured's
existence or otherwise misled Country Mutual. See
Lavino,230 F.2d 909; Chang,150 F.R.D. 456,
And Country Mutual could have asked the Mullers about
siblings or other individuals who knew them at the time of
the prior fires. Without a showing ...