                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 04 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FLOYDELL NUNN, JR.,                              No. 09-56563

              Plaintiff - Appellant,             D.C. No. 2:06-cv-02275-AG-JC

  and
                                                 MEMORANDUM *
MICHAEL ADAM,

              Plaintiff,

  v.

COUNTY OF ORANGE; et al.,

              Defendants - Appellees,

  and

RICK EDGMON, individually and in his
official capacity,

              Defendant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Andrew J. Guilford, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted February 16, 2011
                              Pasadena, California

Before: KLEINFELD, LUCERO,** and GRABER, Circuit Judges.




      The district court’s grant of a new trial must be reversed because an

incorrect legal standard was applied.




      “‘Generally, a district court abuses its discretion when it bases its decision

on an erroneous view of the law.’” Beech Aircraft Corp. v. United States, 51 F.3d

834, 841 (9th Cir. 1995) (per curiam) (quoting United States v. Rahm, 993 F.2d

1405, 1410 (9th Cir. 1993)). The Ninth Circuit standard for granting a new trial

based on attorney misconduct under Federal Rule of Civil Procedure 59 is that “the

flavor of the misconduct ‘must sufficiently permeate an entire proceeding to

provide conviction that the jury was influenced by passion and prejudice in

reaching its verdict.’” Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270

(9th Cir. 2000) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1117 (9th Cir.

1983)). The district court did not apply the Ninth Circuit standard.




       **
              The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
      Appellant failed to advise either the district court or this court of the correct

standard or the error. Nevertheless, regardless of whether appellant counsel’s

violations of the district court’s orders were an attempt to inflame the jury, the

verdict showed that the jury was not “influenced by passion and prejudice.” Both

the special finding that neither defendant acted with malice or reckless disregard of

the plaintiff’s rights and the very low $2,100 verdict evidence a calm jury, not one

influenced by passion and prejudice.




      This reversal will reinstate the jury verdict that was set aside. Our decision,

however, is without prejudice to reconsidering whether sanctions are appropriate

against plaintiff’s counsel. We express no opinion on that question. Any sanctions

available on remand are for the trial court in the first instance.




      REVERSED with instructions to reinstate the jury’s verdict from the first

trial and REMANDED for such further proceedings as may be appropriate.




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