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Ninth Circuit:
There’s No ‘Justice’ Exception for Rule on New Evidence
Opinion Says Diligence Must Have Been Shown in Gathering Proofs in Order to Overturn Judgment Even if Newly Discovered Evidence Would Conclusively Exonerate Civil Defendant
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals held yesterday that a motion for relief from a judgment based on newly discovered evidence requires a showing that reasonable diligence was used to try to obtain the proof before trial even if the new information would conclusively change the result and justice weighs in favor of relief.
The holding is based on the language of Federal Rule of Civil Procedure, rule 60(b)(2) which provides that “the court may relieve a party…from a final judgment…for…newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial.”
The question arose in an action by Kimberly Marroquin who sued Los Angeles Police Department officers and the City of Los Angeles after she was shot in the head by a rubber bullet during a celebration outside the Staples Center (now the Crypto.com Arena) on Oct. 11, 2020, following a championship-game victory by the Los Angeles Lakers.
Marroquin, who was unarmed, was struck as she was leaving the area after people in the crowd began lighting smoke bombs and throwing rocks and bottles at responding officers. She filed a complaint in September 2021 asserting claims against Officer DiMaggio Rico and the city under 42 U.S.C. §1983 for excessive force and state law negligence and battery claims, among others.
Marroquin was diagnosed with a traumatic brain injury and reports symptoms including migraines, confusion, and memory loss.
Rico was the only officer in the area to fire a projectile into the crowd. He testified that he only fired at a man threatening to throw a beer bottle at an officer.
Body-camera footage admitted into evidence at trial does not show who was struck by the projectile or who Rico was shooting toward.
Jury Award
The jury found for Marroquin as to the excessive force claim against Rico and as to the negligence claims against both the officer and the city but found in favor of Rico as to the battery claim. They awarded the plaintiff $1 in damages against Rico and $1.5 million in damages against the city.
Both sides moved for a new trial recognizing the damages awards were inconsistent and did not reflect that the city’s negligence liability was vicarious and dependent upon the officer’s liability.
District Court Judge R. Gary Klausner of the Central District of California granted a retrial only as to damages, finding that the issue was divisible from the question of liability. He noted that “[t]he jury’s confusion no doubt was a result of the Verdict Form, which asked the jury to apportion damages between Rico and the City.”
Klausner also denied the defendants’ motion for relief from judgment under Rule 60(b)(2) for failure to establish that reasonable diligence was used to obtain the evidence earlier. The motion cited previously undiscovered surveillance footage from the Staples center which the defendants assert conclusively proves that Rico did not discharge the round that hit Marroquin.
Following a two-day trial limited to damages, a jury awarded Marroquin $500,000 in damages against both defendants, and final judgment was entered on April 27, 2023.
Circuit Judge Bridget Shelton Bade authored the opinion affirming the judgment. As to the new evidence, she wrote:
“[B[ecause 60(b)(2)’s text plainly requires reasonable diligence and nowhere provides for a ‘conclusive evidence’ exception, we hold that such an exception does not exist. In reaching this holding, we join with the Seventh Circuit in concluding that there is no exception to Rule 60(b)(2)’s ‘reasonable diligence’ requirement for ‘conclusive’ evidence.’ ”
Circuit Judge Milan D. Smith Jr. and District Court Judge Sidney A. Fitzwater of the Northern District of Texas, sitting by designation, joined in the opinion.
Reasonable Diligence
The defendants claim that they “stumbled upon” the Staples Center footage in early 2023 after Rico began working as a security guard at the facility during off-duty hours. They concede that they did not demonstrate reasonable diligence in obtaining it earlier.
The defendants argue that the purpose behind Rule 60(b) is to see that justice is done and denying relief from a judgment based on new evidence that conclusively undermines liability would amount to an injustice.
Unpersuaded, Bade said:
“Our analysis…begins—and ends—with the plain language of Rule 60(b)(2)….Rule 60(b)(2)’s text establishes that the rule was intended to require reasonable diligence, without exceptions….Under Rule 60(b)(2), ‘the court may relieve a party or its legal representative from a final judgment’ for ‘newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).’….‘Reasonable diligence’ is thus an express requirement to receive relief under Rule 60(b)(2)…and the text does not include any exceptions….”
She continued:
“The drafters of the rule could have emphasized seeking justice without limitation and without prioritizing finality. The rule could have read: ‘The court may relieve a party or its legal representative from a final judgment based on newly discovered evidence whenever justice so permits.’ But this is not the rule. Instead, Rule 60(b)(2) includes an express limitation: relief may be granted only if there is ‘newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial….”
She declared that “[t]he district court therefore did not abuse its discretion by denying the Rule 60(b)(2) motion because, as Defendants concede, they failed to exercise reasonable diligence in discovering the Staples Center videos.”
New Damages Trial
The jurist noted that a court may grant a new trial on all or some of the issues, but the decision to grant a partial new trial is restricted by the Seventh Amendment right to a trial by jury. Bade pointed out that the amendment prohibits a partial trial as to damages when the issues are so intertwined with issues of liability that they cannot be reasonably severed.
She said that the defendants argue that the liability issues are so interconnected to damages because “the disputed circumstances leading to Marroquin’s injury—which were highly relevant to determining Officer Rico’s liability—were also relevant to determining emotional damages.”
Bade reasoned that “[a]lthough conduct leading to an injury can, depending on the context, be relevant to a claim of emotional damages, Marroquin’s theory of emotional damages did not depend on the events leading to her injury.” She explained:
“Marroquin’s theory of emotional damages falls within the category of…damages arising from physical injury. Although Defendants assert that ‘the damages . . . did not lend themselves to a damages-only trial,’ multiple witnesses traced Marroquin’s emotional damages to the head injury, not Officer Rico’s conduct. Several doctors testified that they diagnosed Marroquin with a traumatic brain injury, and that the injury caused her symptoms….”
She concluded:
“In short, Marroquin claimed that her head injury caused her emotional damages, not that Officer Rico’s conduct caused her emotional damages. Therefore, the liability issues concerning Rico’s conduct causing this injury were ‘distinct and separable’ from the emotional damages issues.”
Inconsistent Findings
Defendants argue that the inconsistent damages verdict shows confusion as to liability. Bade disagreed, saying that “[d]efendants have not identified any evidence showing that the jury’s improper apportionment of damages tainted the liability finding.”
She continued:
“We therefore agree with the district court that it is highly likely that the jury’s confusion when awarding damages was caused by the improper instruction on the verdict form to apportion damages. Because Defendants have no evidence…that this confusion extended to liability…we conclude the jury’s improper award of damages did not taint its findings on liability.”
The case is Marroquin v. City of Los Angeles, 23-55423.
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