Opinion
NO. CIV. S-04-756 LKK/JFM P.
October 16, 2009
ORDER
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brought claims arising under 42 U.S.C. § 1983. In September of 2009, a jury trial was held on plaintiff's claims that defendants retaliated against him. The jury found for defendants on all claims. Plaintiff subsequently filed three motions before this court: a motion for a new trial, a motion for relief from the verdict, and a motion seeking copies of trial transcripts at government expense. Plaintiff has also filed an appeal to the Ninth Circuit. The court resolves these motions on the papers. For the reasons stated below, the motion for court provided transcripts is granted, and the remaining motions are denied.
I. JURISDICTION
Plaintiff has filed an appeal to the Ninth Circuit. See Doc. No. 181 (Notice of Appeal). Ordinarily, when a party files both a notice of appeal and motions under Fed.R.Civ.P. 59(a) and/or 60(b), the timing of the filings determines their treatment. If the notice of appeal is filed first, the district court is ordinarily divested of jurisdiction to hear motions of these types. See Morris v. Morgan Stanley Co., 942 F.2d 648, 654 (9th Cir. 1991), Smith v. Lujan, 588 F.2d 1304, 1307 (9th Cir. 1979). If the notice of appeal is instead filed after a motion for new trial, the notice of appeal is held in abeyance while the district court resolves the motion. Fed.R.App.P. 4(a)(4)(B)(i).In this case, plaintiff filed the notice of appeal concurrently with the motions directed to this court. The notice of appeal was docketed minutes before the instant motions. Because plaintiff filed his documents by mail, this sequence reflects the vagaries of the Clerk of the Court's processing of the mail, and not any act of the plaintiff. In recognition of plaintiff's pro se status, and in the interests of judicial economy, the court construes the notice of appeal as the later-filed document. Thus, the court has jurisdiction over these motions.
Even if the court were bound to treat the notice of appeal as filed first, such that the court lacked jurisdiction over plaintiff's Rule 59(a) and 60(b) motions, discussion of the merits of these motions would still be proper. A party seeking Fed.R.Civ.P. 60(b) relief from the district court while an appeal is pending may "ask the district court whether it wishes to entertain the motion, or to grant it, and then move [the court of appeals], if appropriate, for remand of the case." Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2002). The same procedure appears appropriate for Rule 59(a) motions. Because plaintiff is proceeding pro se, if the court lacked jurisdiction over these motions, the court would construe plaintiff's filings as requests for such evaluations. The Ninth Circuit has held that, in the course of such review, the court lacks the power to actually grant or deny the motion. Id. (citing Carriger v. Lewis, 971 F.2d 329, 332 (9th Cir. 1992) (en banc)). Nonetheless, the court must evaluate the merits to determine whether it wishes to grant the motion. Here, where the court concludes that plaintiff's Rule 59(a) and 60(b) motions are without merit, the court indicates that if it lacks jurisdiction to deny the motions, it would not be inclined to entertain them.
The notice of appeal does not limit the court's jurisdiction over plaintiff's request for court-provided transcripts.
II. MOTION FOR A NEW TRIAL
Plaintiff filed a motion "to set aside the jury verdict and order a new trial." Although plaintiff cites Fed.R.Civ.P. 59(a) and (e), plaintiff's arguments do not implicate section (e).
Federal Rule of Civil Procedure 59(a) states, "A new trial may be granted . . . in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed.R.Civ.P. 59(a)(1). As is apparent from the text of the Rule, it does not specify the grounds on which a motion for a new trial may be granted. See Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). Instead, the court is "bound by those grounds that have been historically recognized."Id. "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. M.J. Cable, Inc., 481 F.3d 724, 728 (9th Cir. 2007) (quoting Montgomery Ward Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 85 L. Ed. 147 (1940)).
Here, plaintiff argues that the court erred in granting defendants' motions in limine to exclude certain of plaintiff's witnesses and exhibits. Plaintiff argues that these rulings prevented plaintiff from introducing evidence of California Department of Corrections and Rehabilitations policies, and thereby prevented plaintiff from rebutting defendants' testimony that they acted in compliance with these policies. Although this line of argument may be valid in the abstract, it is not supported by the facts in this case. In particular, while plaintiff objects to the exclusion of witness Cheryl Pliler, plaintiff stipulated to this exclusion after defendants stipulated the fact that plaintiff filed a 602 that did not reach Pliler.
III. MOTION FOR RELIEF FROM JUDGMENT
Plaintiff makes the same arguments in a separately filed motion seeking relief under Fed.R.Civ.P. 60(b). This rule provides that a court
may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Plaintiff's arguments do not fall into any of these categories. Even if they did, the court would not evaluate them differently in the context of a Rule 60(b) motion.
IV. TRANSCRIPTS
28 U.S.C. § 753(f) provides, among other things, that "Fees for transcripts furnished in other proceedings to persons permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question)." Although the court declines to grant a new trial, it appears that plaintiff's appeal is not frivolous.
Plaintiff also states that if he is successful on appeal, he will seek criminal and civil charges against the individual jurors. It does not appear that such proceedings are appropriate, or that the jurors' names are needed for plaintiff's appeal. Accordingly, the jurors' names shall be redacted.
V. CONCLUSION
For the reasons stated above, plaintiff's motion for a new trial, Doc. No. 183, and motion for relief from the verdict, Doc. No. 183-2, are DENIED.
Plaintiff's request for a copy of the trial transcript at the court's expense, Doc. No. 182, is GRANTED. The court reporter is directed to redact the names of the members of the jury panel from the transcript. The reporter shall refer to them throughout the transcript by the individual's first and last initials. If two individuals have the same first and last initials, the court reporter shall also include each individual's middle initial.
IT IS SO ORDERED.