United States District Court, D. Oregon, Portland Division
CHRISTIANSEN VOGELE & CHRISTIANSEN 812 N.W. ATTORNEY FOR
TIMOTHY ROTE PRO SE DEFENDANT
OPINION & ORDER
A HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
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. 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.
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.
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
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.
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).
Motion for a New Trial
makes various arguments in support of his motion for a new
trial. 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. For the reasons
that follow, the Court declines to grant Defendant a new
Plaintiff's Closing Argument
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
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
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
. . . .
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 ...