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Zweizig v. Northwest Direct Teleservices, Inc.

United States District Court, D. Oregon, Portland Division

July 25, 2018

MAX ZWEIZIG, Plaintiff,



          OPINION & ORDER


         Plaintiff Max Zweizig brought this retaliation claim against Defendants Northwest Direct Teleservices, Inc., Northwest Direct Marketing of Oregon, Inc., Timothy Rote, Northwest Direct Marketing (Delaware), Inc., Northwest Direct of Iowa, Inc., Rote Enterprises, LLC, and Northwest Direct Marketing, Inc. Currently pending before this Court are Defendant Rote's Objection to Plaintiff's Form of Judgment and Defendant Rote's Motion to Vacate for Lack of Jurisdiction, Alter or Amend Judgment, or For a New Trial pursuant to Fed.R.Civ.P. 59 and 60.[1] The Court denies Defendant's motion for a new trial but finds that Plaintiff's noneconomic damages award should be capped pursuant to ORS 31.710.


         Plaintiff is the former IT director of Defendant Northwest Direct Teleservices, Inc. (“NDT”). Defendant Rote (“Defendant”) is the former executive of Defendant NDT and the other business entities involved in this case. After their relationship deteriorated in 2003 and Plaintiff was terminated, the parties began almost 15 years of litigation culminating in this lawsuit.

         Sometime after his termination, Plaintiff succeeded in arbitration on a claim for whistleblower retaliation against Defendant NDT. Defendant subsequently created a blog to write about his experience in the arbitration. At times, Defendant wrote about Plaintiff. After discovering the blog, Plaintiff filed the present suit alleging that Defendant's blog was an act of retaliation. Specifically, Plaintiff contends that Defendant aided and abetted his former employer, Defendant NDT, in retaliating against him for his participation in the former arbitration where he succeeded on his whistleblower claim.

         Because they were unrepresented, all the business entities in this case have defaulted. The claims against Defendant Rote, however, proceeded to a two-day jury trial on January 16 and 17, 2018. The jury returned a verdict for Plaintiff and awarded him $1, 000, 000 in noneconomic damages.


         Under Rule 59, a district court has the discretion to grant a new 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)(A). Because “Rule 59 does not specify the grounds on which a motion for a new trial may be granted, ” courts are “bound by those grounds that have been historically recognized.” Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). The Ninth Circuit has previously held that “[t]he trial court may grant a new trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (citation omitted). “[E]rroneous jury instructions, as well as the failure to give adequate instructions, are . . . bases for a new trial.” Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990) (citations omitted). The authority to grant a new trial is “confided almost entirely to the exercise of discretion on the part of the trial court.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980).


         I. Motion for a New Trial

         Defendant makes various arguments in support of his motion for a new trial.[2] Broadly, he argues that a new trial is warranted because: (1) Plaintiff's counsel made improper statements during closing argument; (2) the evidence was insufficient to support the verdict; (3) the Court gave improper jury instructions; (4) the Court made improper evidentiary rulings; (5) Defendant received information from Juror No. 5 that suggests damages were improperly calculated; and (6) Defendant discovered new evidence.[3] For the reasons that follow, the Court declines to grant Defendant a new trial.

         A. Plaintiff's Closing Argument

         Defendant argues that the Court should grant a new trial because Plaintiff's counsel made improper arguments in closing. In particular, Defendant contends that counsel's arguments that the jury should “send a message” with its damages award were inappropriate given that punitive damages had been excised from the case. Defendant, however, did not object to any of these arguments during trial.[4]

         Improper argument by counsel can be grounds for a new trial, but “generally, misconduct by trial counsel [only] results in a new trial if the flavor of misconduct sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.” Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1192 (9th Cir. 2002) (internal citations and quotations omitted). “The federal courts erect a ‘high threshold' to claims of improper closing arguments in civil cases raised for the first time after trial.” Id. at 1193 (internal citations omitted). “Where a party seeks a new trial based on arguments by opposing counsel that were not objected to at trial, a new trial is available only in ‘extraordinary cases.'” Aubert v. Robles, No. 1:10-CV-00565-MJS PC, 2014 WL 2979413, at *1-2 (E.D. Cal. July 1, 2014) (citing Hemmings, 285 F.3d at 1193).

During his closing argument, Plaintiff's counsel made the following statements:
There's words like "mental suffering," "emotional distress," "humiliation," "inconvenience," "interference with normal and usual activities," and "injury to reputation." All of those are the case here. The words that aren't on the jury instructions, but they feed into these words are "terror," "torment." The list, it- yeah. You saw Mr. Zweizig testify. That's-that's obvious.
So what do we look at? I mean, how do you-how do you put a number on that? What I'm going to encourage you to do is look at the community. What kind of message do we want to send to the world to say this-not only is this wrong, but it's real. What Mr. Zweizig has gone through, it's not just a blog on the Internet. We're not up here about a couple comments that hurt his feelings on Facebook. This is a smear campaign, being stalked on the Internet. What do we do with that fear?
So when you look at community, there's a couple contexts I want to talk to you about. The first is the broad context. The community here is massive, and the problem is great. And blogging, Googling, Facebooking, Twittering, Linked In, that's part of our world today. And what I argue to you is you need to be responsible about how you use that stuff. And we need to send a message to that big community that that's not acceptable. You can't do that. That really hurts people.
. . . .
And the other context is it's the small context. It's about the individual, the family, what happens at home day to day. You know, how do we interact with ourselves? How do we interact with the people we love? What kind of messages do we want to send to our children or our ...

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