Du Preez v. Banis et al
ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT AS A MATTER OF LAW AND FOR NEW TRIAL PURSUANT TO FRCP RULES 50(B) AND 59 re 329 Motion for Judgment NOV. Signed by JUDGE LESLIE E. KOBAYASHI on 07/27/2017. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RONI DU PREEZ,
RICK BANIS, ET AL.,
CIVIL 14-00171 LEK-RLP
ORDER DENYING PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER
OF LAW AND FOR NEW TRIAL PURSUANT TO FRCP RULES 50(B) AND 59
Before the Court is Plaintiff Roni Du Preez’s
(“Plaintiff”) Motion for Judgment as a Matter of Law and for New
Trial Pursuant to FRCP Rules 50(b) and 59 (“Motion”), filed on
May 12, 2017.
[Dkt. no. 329.]
Defendants Rick Banis,
Don Carano, Fred Scarpello, and John Mackall, as Trustees of the
Estate of William Pennington (collectively, “Trustee
Defendants”), WNP Enterprises, Inc. (“WNP”), and Western Equities
LLC (“Western,” and all collectively, “Defendants”) filed their
memorandum in opposition on May 19, 2017.
[Dkt. no. 334.]
Court has considered the Motion as non-hearing matter pursuant to
Rule LR7.2(e) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
Plaintiff’s Motion is hereby denied for the reasons set forth
Plaintiff filed this action on March 20, 2014 in state
The Trustee Defendants and Western Equities filed their
Notice of Removal on April 11, 2014.
The operative pleading is
her Third Amended Complaint for Damages and Equitable Relief
(“Third Amended Complaint”), filed May 5, 2015.
[Dkt. no. 130.]
The factual issues in this case are well known to the parties,
and the Court will only discuss the issues that are relevant to
the instant Motion.
The case went to trial on Count I, breach of implied
contract, and Count VI, promissory estoppel.
See Order Granting
in Part and Denying in Part Defs.’ Motion for Summary Judgement
and Denying as Moot Defs.’ Motion to Dismiss, filed 9/30/15 (dkt.
no. 211) (“9/30/15 Order”) (granting summary judgment as to all
The gravamen of this case is that Plaintiff
seeks to enforce the promises that she alleges her former
employer, William Pennington, made to her before she accepted the
position as the manager of his vacation home on the Island of
Maui and during the course of her employment.
Jury selection occurred on May 2, 2017.
Minuted, filed 5/2/17 (dkt. no. 319).]
The parties presented
The 9/30/15 Order also granted summary judgment on the
portions of Counts I and VI against Defendants Kent Green and
Racquel Bridgewater, who were terminated as parties. [9/30/15
Order at 34-35.]
evidence on May 3 and 4, and closing arguments on May 5, [dkt.
nos 318, 320, 324].
Later that day, the jury returned a verdict
in favor of Defendants as to both counts.
Form, filed 5/5/17 (dkt. no. 325).]
[Special Jury Verdict
The instant Motion followed,
renewing the oral motion for judgment as a matter of law that
Plaintiff made after Defendants rested their case.
This district court has explained:
Federal Rule of Civil Procedure 50(b) allows
a party to file a renewed motion for judgment as a
matter of law after entry of judgment on a jury
verdict. To file a renewed motion under Rule
50(b), a party generally must first file a motion
for judgment as a matter of law under Rule 50(a)
before the case is submitted to the jury.
E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951,
961 (9th Cir. 2009). If the court denies or
defers ruling on the Rule 50(a) motion and the
jury returns a verdict against the moving party,
the party may then renew the motion under Rule
50(b). Id. Because it is a “renewed” motion, a
party cannot “raise arguments in its post-trial
motion for judgment as a matter of law under
Rule 50(b) that it did not raise in its preverdict
Rule 50(a) motion.” Id. (quoting Freund v.
Nycomed Amersham, 347 F.3d 752, 761 (9th Cir.
The rule that a party must move for judgment
as a matter of law before the case is submitted to
a jury does not apply if the motion alleges
inconsistencies in the answers given to a special
verdict. Pierce v. Souther[n] Pacific Transp.
Co., 823 F.2d 1366, 1369 (9th Cir. 1987) (“When a
special verdict does not support a judgment a
reviewing court may make an exception to the Rule
50(b) requirement of a motion for directed verdict
as a prerequisite to a motion [judgment
notwithstanding the verdict].”); Zhang v. American
Gem Seafoods, Inc., 339 F.3d 1020, 1033 (9th Cir.
In ruling on a 50(b) motion, the Court may
allow judgment on the verdict, order a new trial,
or reverse the jury and direct the entry of
judgment as a matter of law. Fed. R. Civ. P.
50(b). The court will direct judgment as a matter
of law if “the evidence permits only one
reasonable conclusion, and that conclusion is
contrary to the jury’s verdict.” Go Daddy
Software, Inc., 581 F.3d at 961 (quoting Josephs
v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir.
2006)). When considering the motion, the court
“may not make credibility determinations or weigh
the evidence.” Id. (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150
(2000)). Instead, the court reviews the evidence
“in the light most favorable to the nonmoving
party” and draws “all reasonable inferences in
that party’s favor.” Id. (quoting Josephs, 443
F.3d at 1062)). “While the district court may not
resolve conflicts in the testimony or weigh the
evidence, it may evaluate evidence at least to the
extent of determining whether there is substantial
evidence to support the verdict. ‘[A] mere
scintilla of evidence will not suffice.’” Von
Zuckerstein v. Argonne Nat’l Laboratory, 984 F.2d
1467, 1471 (7th Cir. 1993) (citing La Montagne v.
American Convenience Products, Inc., 750 F.2d
1405, 1410 (7th Cir. 1984)).
The Ninth Circuit has defined substantial
evidence as “such relevant evidence as reasonable
minds might accept as adequate to support a
conclusion even if it is possible to draw two
inconsistent conclusions from the evidence.”
Maynard v. City of San Jose, 37 F.3d 1396, 1404
(9th Cir. 1994) (citing George v. City of Long
Beach, 973 F.2d 706, 709 (9th Cir. 1992)).
Dawkins v. City & Cty. of Honolulu, Civ. No. 10-00086 HG-KSC,
2012 WL 1982461, at *3-4 (D. Hawai`i May 31, 2012) (some
alterations in Dawkins).
Federal Rule of Civil Procedure 50(b) allows
a party filing a renewed motion for judgment as a
matter of law to include an alternative request
for a new trial under Rule 59. Rule 59 allows the
court to 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). Although Rule 59
does not specify the grounds on which a court may
order a new trial, historically recognized grounds
include: “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, 729 (9th Cir. 2007) (quoting
Passantino v. Johnson & Johnson Consumer Prods.,
212 F.3d 493, 510 n.5 (9th Cir. 2000)).
“When a motion for a new trial is based on
insufficiency of the evidence, a ‘stringent
standard applies’ and a new trial may be granted
‘only if the verdict is against the great weight
of the evidence or it is quite clear that the jury
has reached a seriously erroneous result.’” MLM
Property, LLC v. Country Cas. Ins. Co., 2010 WL
1948609, at *2 (D. Or. 2010) (quoting Digidyne
Corp. v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th
Id. at *4.
Witness Exclusionary Rule
Plaintiff first argues that this Court should strike
Kent Green’s testimony because of Defendants’ violation of Fed.
R. Evid. 615.
Plaintiff contends that, without Mr. Green’s
testimony, there is insufficient evidence to support the jury’s
Prior to trial, this Court informed the parties that
the witness exclusionary rule would be in force, and Defendants
stated that Mr. Green would serve as the party representative.
Thus, Mr. Green was allowed to sit at defense counsel’s table
during the trial proceedings.
After Plaintiff rested her case,
Defendants presented Mr. Green as their first witness.
testified that he left his position with the Pennington business
entities last year.
On cross-examination, he confirmed that he
is no longer employed by the Pennington family in any capacity,
he is not a member of either Western or WNP, and he was retained
by Defendants to serve as the party representative at trial.
This Court excused the jury to address Mr. Green’s role in the
Rule 615 states:
At a party’s request, the court must order
witnesses excluded so that they cannot hear other
witnesses’ testimony. Or the court may do so on
its own. But this rule does not authorize
a party who is a natural person;
(b) an officer or employee of a party
that is not a natural person, after
being designated as the party’s
representative by its attorney;
(c) a person whose presence a party
shows to be essential to presenting the
party’s claim or defense; or
(d) a person authorized by statute to
Under the circumstances of this case, the only potentially
applicable provision is Rule 615(c).
When a party invokes
Rule 615(c), it is not enough that the party considers a person
to be essential.
For example, in United States v. Hitesman, the
district court stated:
In interpreting Rule 615, the Ninth Circuit has
held that case agents . . . may remain in the
courtroom pursuant to either Rule 615(b) or Rule
615(c). See United States v. Gonzalez, 221 F.3d
1349, *1 (9th Cir. 2000) (Table) (“DEA Special
Agent Hinton, INS Special Agent Nygaard, and Idaho
Bureau of Narcotics Special Agent White were all
case agents for the Government . . . were all
deemed by the district court to be essential to
the presentation of the Government’s case and were
therefore also exempt from exclusion under Federal
Rule of Evidence 615[c].”) (footnote omitted).
Case No. 14-CR-00010-LHK-1, 2016 WL 3523854, at *13 (N.D. Cal.
June 28, 2016) (some alterations in Hitesman) (emphasis added).
When Defendants’ counsel identified Mr. Green as their
party representative, they did not point out that Mr. Green was
no longer an officer or employee of WNP or Western.2
did not establish before this Court that Mr. Green was essential
to the presentation of their case, and Defendants’ use of
Mr. Green as their party representative was a technical violation
of Rule 615(c).
However, under the circumstances of this case,
if the issue had been properly presented to this Court prior to
This Court acknowledges that Defendants’ Final Witness
List identified Mr. Green as a “Former WNP Enterprises, Inc.
Employee.” [Filed 4/11/17 (dkt. no. 273), at 2.]
trial, this Court would have found that Mr. Green was essential
to the presentation of Defendants’ case.
Further, at trial, this
Court sanctioned Defendants for the Rule 615(c) violation by
excluding him from the courtroom after he completed his
The Court finds that this sanction was sufficient to
address any minimal prejudice that Plaintiff suffered – and any
minimal advantage that Defendants gained – by utilizing Mr. Green
as their party representative without making the required
Rule 615(c) showing prior to trial.
The Court therefore
concludes that Defendants’ violation of Rule 615(c) does not
warrant either striking Mr. Green’s testimony or ordering a new
The Motion is denied as to Plaintiff’s argument based
upon the Rule 615(c) violation.
Plaintiff also argues that this Court should strike
Mr. Green’s testimony and/or order a new trial because Defendants
failed to disclose the fact that: the notes he took during the
January 2005 meeting in which Mr. Pennington hired Plaintiff had
been found; and he was being compensated for participation in the
At trial, Plaintiff testified that Mr. Green took notes
during the meeting.
Mr. Green also testified that he took notes,
and one of the things he wrote down was that Plaintiff would be a
subcontractor, which was contrary to Plaintiff’s testimony about
During discovery, WNP and Western each stated that
it could neither admit nor deny that notes were taken at the
meeting because it had made a reasonable inquiry, and the
information it obtained was insufficient to allow it to either
admit or deny that notes were taken.
[Mem. in Opp., Decl. of
Andrew J. Lautenbach, Exh. A (WNP’s Responses & Objections to
Pltf.’s Request for Answers to Interrogatories, Admissions and
Production of Documents) at 16; id., Exh. B (Western’s Responses
& Objections to Pltf.’s Request for Answers to Interrogatories,
Admissions and Production of Documents) at 16.]
Mr. Green responded during discovery that he did not recall
whether or not he took notes at the meeting, and a diligent
search did not uncover any notes of the meeting.
Plaintiff is correct that Mr. Green’s testimony at
trial was inconsistent with his discovery response.
Plaintiff’s counsel was able to cross-examine Mr. Green about the
inconsistency, and nothing in Mr. Green’s testimony – or the
testimony of any of Defendants’ other witnesses – suggests that
the notes were found after Defendants submitted their discovery
response to Plaintiff.
There is no evidence that Defendants had
an obligation to amend their discovery responses and to produce
the recently located notes to Plaintiff.
Plaintiff also argues that Defendants failed to
disclose the fact that Mr. Green would serve as an expert witness
at trial and failed to comply with the disclosure requirements
for expert witnesses.
Fed. R. Civ. P. 26(a)(2) states, in
pertinent part, “a party must disclose to the other parties the
identity of any witness it may use at trial to present evidence
under Federal Rule of Evidence 702, 703, or 705.”
states, inter alia:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an opinion or
(a) the expert’s scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence or
to determine a fact in issue[.]
Rule 703 states, in pertinent part: “An expert may base an
opinion on facts or data in the case that the expert has been
made aware of or personally observed.”
Rule 705 states: “Unless
the court orders otherwise, an expert may state an opinion – and
give the reasons for it – without first testifying to the
underlying facts or data.
But the expert may be required to
disclose those facts or data on cross-examination.”
Mr. Green did not give any of the types of testimony
described in Rules 702, 703, and 705.
He testified as a
percipient witness, not an expert witness.
This Court therefore
concludes that Defendants were not required to disclose him as an
expert witness during discovery.
Further, although Defendants
did not disclose to Plaintiff that Mr. Green was compensated for
his participation in the trial proceedings, Plaintiff’s counsel
had the opportunity to cross-examine him about the compensation
and to argue that the compensation affected his credibility.
This Court denies Plaintiff’s Motion as to her argument
alleging that Defendants committed discovery violations which
warrant either striking Mr. Green’s testimony or ordering a new
This Court has rejected each of the alleged errors
presented in Plaintiff’s Motion, whether or not expressly
discussed in this Order.
This Court also concludes that the
cumulative effect of the alleged errors does not warrant either
striking Mr. Green’s testimony or ordering a new trial.
e.g., Collender v. City of Brea, Case No. SACV 11-0530 AG (RNBx),
2016 WL 6647948, at *7 (C.D. Cal. June 14, 2016) (“As none of the
individual grounds for a new trial persuade the Court, the
grounds taken together also fail to persuade the Court that a new
trial is warranted.”).
Plaintiff has failed to establish that
she is entitled to either judgment as a matter of law or a new
On the basis of the foregoing, Plaintiff’s Motion for
Judgment as a Matter of Law and for New Trial Pursuant to FRCP
Rules 50(b) and 59, filed May 12, 2017, is HEREBY DENIED.
Clerk’s Office is DIRECTED to enter final judgment in favor of
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 27, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RONI DU PREEZ VS. RICK BANIS, ET AL; CIVIL 14-00171 LEK-RLP;
ORDER DENYING PLAINTIFF’S MOTION FOR JUDGMENT AS A MATTER OF LAW
AND FOR NEW TRIAL PURSUANT TO FRCP RULES 50(B) AND 59
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