                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 12a0303p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                           Plaintiff-Appellee, -
 PARK WEST GALLERIES, INC.,
                                                 -
                                                 -
                                                 -
                                                     No. 11-1175
           v.
                                                 ,
                                                  >
                                                 -
                                                 -
 BRUCE HOCHMAN; FINE ART REGISTRY;
                                                 -
 SALVADOR DALI GALLERY, INC.,
                                                 -
                                 Defendants, -
                                                 -
                                                 -
                                                 -
 THERESA FRANKS; GLOBAL FINE ART
                                                 -
 REGISTRY, LLC; DAVID CHARLES PHILLIPS,
                      Defendants-Appellants. -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
    Nos. 2:08-cv-12274; 2:08-cv-12247—Lawrence P. Zatkoff, District Judge.
                          Decided and Filed: September 5, 2012
            Before: MOORE, GIBBONS, and ALARCÓN, Circuit Judges.*

                                      _________________

                                           COUNSEL
ON BRIEF: Donald L. Payton, KAUFMAN, PAYTON & CHAPA, Farmington Hills,
Michigan, for Appellants. Rodger D. Young, Terry Milne Osgood, Jaye Quadrozzi,
YOUNG & SUSSER, P.C., Southfield, Michigan, for Appellee.
       GIBBONS, J., delivered the opinion of the court in which ALARCÓN, J., joined,
and MOORE, J., joined only in the judgment. MOORE, J. (pp. 15–16), delivered a
separate opinion concurring in the judgment.




        *
          The Honorable Arthur L. Alarcón, Senior Circuit Judge of the United States Court of Appeals
for the Ninth Circuit, sitting by designation.


                                                 1
No. 11-1175        Park West Galleries v. Hochman, et al.                             Page 2


                                  _________________
                                      OPINION
                                  _________________


       JULIA SMITH GIBBONS, Circuit Judge. Defendants-appellants Theresa
Franks, Global Fine Art Registry, LLC, and David Charles Phillips appeal the district
court’s denial of their motion to reinstate the jury verdict. Defendants-appellants filed
the motion after the district court granted the motion for a new trial filed by Park West
Galleries, Inc. (“Park West”). In denying the motion, the district court found that it was
unclear whether this court’s waiver doctrine as enunciated in Jones v. Illinois Central
Railroad Co., 617 F.3d 843 (6th Cir. 2010), extended to requests for a new trial brought
under Federal Rule of Civil Procedure 59. The district court certified for interlocutory
appeal the issue of whether Park West waived its right to a Rule 59(a) motion for a new
trial by failing to move for a mistrial, before the case was submitted to the jury, on the
basis of the known misconduct in which Franks and counsel for defendants engaged
during the course of the entire trial. For the following reasons, we conclude that Park
West’s failure to move for a mistrial based on misconduct occurring during the trial did
not waive its right to seek a new trial under Federal Rule of Civil Procedure 59, and we
affirm the district court’s order denying the motion to reinstate the jury verdict.

                                            I.

       Park West is an independently owned gallery and art dealer headquartered in
Southfield, Michigan. Park West sells art from its Southfield gallery, over the internet,
through its catalog, and over the phone, and also conducts art auctions in different cities
in North America and on cruise ships around the world. Among the works sold by Park
West are works by Salvador Dalí.

       In May 2007, Theresa Franks, who is the CEO of Global Fine Art Registry
(“GFAR”), began publishing articles on Fine Art Registry (“FAR”), the website run by
GFAR, which alleged that Park West engaged in suspect business practices in running
its auctions aboard cruise ships and that Park West sold inauthentic or fake works of art
No. 11-1175        Park West Galleries v. Hochman, et al.                          Page 3


to unsuspecting customers—particularly citing the works by Dalí as an example. David
Phillips, a FAR employee, authored several of the articles published on the FAR website
which described alleged cruise ship art auction scams run by Park West and conducted
several interviews with alleged victims, all of which were published on the FAR website.
Bruce Hochman, who runs the Salvador Dalí Gallery, agreed to be interviewed and
quoted by Phillips on behalf of FAR regarding his view that the Dalí prints purchased
by Park West customers in the auctions at sea did not contain authentic artist signatures.

       In April 2008, Park West filed a complaint in Michigan state court against
Franks, Hochman, and GFAR alleging defamation, tortious interference, interference
with prospective business advantage, and civil conspiracy to destroy Park West’s
goodwill and reputation. The action was removed to federal court. Park West had also
filed a similar defamation case against Phillips, and the cases were consolidated.

       The consolidated case was tried before a jury between March 15, 2010 and April
19, 2010. During trial, Park West frequently objected to what it viewed as misconduct
on the part of Franks and counsel for the defendants. The district court gave several
warnings to defense counsel regarding the misconduct and sanctioned Franks’s defense
counsel Jonathan Schwartz for his failure to honor the court’s rulings regarding improper
lines of questioning. Despite the repeated instances of misconduct, Park West did not
request a mistrial and the case was submitted to the jury on April 19. On April 21, the
jury returned a verdict in favor of defendants Franks, Phillips, Hochman, and GFAR on
the defamation, tortious interference with business expectancies, and civil conspiracy
claims. However, the jury did not find in favor of the defendants on their counterclaims
of defamation, tortious interference with business expectancies, and conspiracy to
tortiously interfere with business expectancies. Nonetheless, the jury did find in favor
of defendant GFAR on its Lanham Act counterclaim against Park West and awarded
$500,000.00 in damages.

       On May 11, 2010, Park West filed a motion for judgment as a matter of law
and/or for a new trial. Park West’s motion requested several forms of post-trial relief,
including a new trial under Federal Rule of Civil Procedure 59 on Park West’s
No. 11-1175           Park West Galleries v. Hochman, et al.                                   Page 4


defamation, tortious interference with business expectancies, and civil conspiracy claims
as well as GFAR’s counterclaim for a violation of the Lanham Act. Park West argued
that the district court should set aside the verdict and grant a new trial in light of the
“persistent and insidious misconduct of the defendants and their counsel [which]
deprived Park West of a fair trial, and caused the jury to reach a seriously erroneous
result that is against the weight of the (admissible) evidence.” Park West argued that
Franks and defense counsel persistently violated the district court’s orders resolving the
motions in limine and the district court’s evidentiary rulings, and that defense counsel
made inappropriate and inflammatory remarks throughout trial, posed improper and
objectionable questions to witnesses, and failed to control their clients.

        On August 16, 2010, the district court found that Franks and counsel for the
defendants engaged in contumacious conduct. After considering the factors enumerated
in City of Cleveland v. Peter Kiewet Sons’ Co., 624 F.2d 749, 756 (6th Cir. 1980), for
determining whether there is a reasonable probability that the jury’s verdict was
influenced by the improper conduct and a grant of the motion for a new trial is therefore
warranted, the district court decided that the misconduct engaged in by Franks and
defense counsel was serious enough and permeated the entire trial to such an extent that
there was at least a reasonable probability that the verdict was influenced by the
misconduct. The district court granted Park West’s motion for a new trial as to GFAR,
Franks, and Phillips.1

        On October 7, 2010, GFAR, Franks, and Phillips (collectively, the “defendants”)
filed a Motion to Reinstate the Unanimous Jury Verdict, Based Upon the Recent 6th
Circuit Published Decision in Jones v. Illinois Central Railroad Company, 617 F.3d 843
(6th Cir. 2010).2 The defendants’ motion to reinstate argued that under Jones, Park West
waived its right to seek a new trial when it failed to seek a mistrial before the jury


        1
           Park West and Hochman subsequently settled and on October 28, 2010, pursuant to the parties’
stipulation and Federal Rule of Appellate Procedure 42(b), we dismissed both Park West’s appeal of the
denial of the Rule 59(a) motion for a new trial as to Hochman and Hochman’s cross-appeal.
        2
          Jones was decided on August 24, 2010, which was just over a week after the district court
granted Park West’s motion for a new trial.
No. 11-1175         Park West Galleries v. Hochman, et al.                            Page 5


rendered its verdict despite the fact that the alleged misconduct or instances of potential
or actual prejudice were known to Park West prior to jury deliberations. As a result, the
defendants requested that the district court grant them relief by reversing its decision to
grant a new trial and reinstating the jury’s verdict in light of Jones.

        The district court denied the motion to reinstate on December 8, 2010. The
district court considered whether Jones, which involved a Rule 60 motion, should be
read to create a broad waiver rule encompassing the case where a party fails to move for
a mistrial when the misconduct was known to the party prior to jury deliberations. The
district court concluded that Jones did not create such a broad waiver rule, because it
found that the opinion “clearly and expressly rested its analysis and holding on the
plaintiff’s Rule 60 motion.” Because Park West moved for a new trial under Rule 59(a),
the district court declined to extend the waiver rule from Jones to Park West’s motion
for a new trial. However, the district court stayed the proceedings and certified its
decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We granted
permission to appeal the issue of “whether the plaintiff waived its right to seek a new
trial under Federal Rule of Civil Procedure 59 based on misconduct occurring during the
trial by failing to move for a mistrial before the case was submitted to the jury.”

                                             II.

        On interlocutory appeal, we do not review the district court’s findings of fact,
and instead “consider only pure questions of law.” Bates v. Dura Auto. Sys., Inc.,
625 F.3d 283, 285 (6th Cir. 2010). We review district court’s conclusions of law de
novo. Id.

                                             III.

        The defendants argue that the district court improperly ordered a new trial and
erred in denying their motion to reinstate the jury verdict because Park West waived its
right to a new trial by failing to request a mistrial based on known misconduct at trial
before the case was submitted to the jury. They contend that Jones demonstrates that a
party waives its right to a new trial when it fails to seek a mistrial before the jury renders
No. 11-1175         Park West Galleries v. Hochman, et al.                            Page 6


its verdict. We disagree and conclude that Jones does not extend to motions for a new
trial made pursuant to Rule 59.

                                             A.

        Pursuant to Federal Rule of Civil Procedure 59, “[t]he court may, on motion,
grant a new trial on all or some of the issues—and to any party . . . (A) 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)(1). Motions for a new trial “must be filed no
later than twenty-eight days after the entry of judgment.” Fed. R. Civ. P. 59(b). A
district court may also order a new trial on its own for “any reason that would justify
granting one on a party’s motion.” Fed. R. Civ. P. 59(d). We have explained that the
“governing principle” in the district court’s consideration of a motion for a new trial “is
whether, in the judgment of the trial judge, such course is required in order to prevent
an injustice; and where an injustice will otherwise result, the trial judge has the duty as
well as the power to order a new trial.” Davis by Davis v. Jellico Cmty. Hosp. Inc.,
912 F.2d 129, 133 (6th Cir. 1990) (internal quotation marks omitted).

        Jones involved a negligence action that stemmed from a collision between a
fertilizer spreader driven by Keith Jones and an Illinois Central Railroad Company train.
Jones, 617 F.3d at 845. The jury returned a verdict finding both parties 50% at fault.
Id. at 846. Theresa Jones, who brought the action individually and on behalf of her
husband, then filed post-trial motions to, among other things, vacate the judgment and
grant a new trial based on alleged misconduct by Illinois Central and its defense counsel.
Id. at 849, 851. Among the claims asserted in her motion to vacate the judgment and
grant a new trial under Rule 60(b)(3) and 60(d)(3) on grounds of misconduct, Jones
alleged that defense counsel engaged in several forms of misconduct during trial,
including instructing a witness not to reveal that defense counsel asked him to appear in
court and paid for the witness’s hotel room. Id. at 849–50. The district court denied
Jones’s motions on the grounds that the misconduct that occurred at trial was adequately
remedied by the court and did not cause Jones to suffer prejudice. Id. at 850.
No. 11-1175            Park West Galleries v. Hochman, et al.                                     Page 7


         We found that Jones waived relief under Rule 60 because she failed to move for
a mistrial before the jury returned its verdict. Id. at 851–52. We noted that Rule 60 was
not intended to provide relief from consequences of deliberate decisions after subsequent
events reveal the decisions to have been unwise and then observed that the waiver
doctrine has been applied “in circumstances similar to those in this case.” Id. at 851.
To demonstrate this precedent, we cited Morton Butler Timber Co. v. United States,
91 F.3d 884 (6th Cir. 1937), where the landowners’ request for a new trial based on
alleged government attorney misconduct was denied in part because the landowners
failed to move for a mistrial, and Carter v. Tennessee, 18 F.2d 850 (6th Cir. 1927), a
criminal case, where a defendant waived his argument for a new trial because he did not
ask for a mistrial prior to judgment. Id. at 851. Because Jones also did not request a
mistrial, we found that she waived her right to Rule 60 relief. Id. Of particular note was
the fact that Jones had “instead requested and received a curative instruction and the
opportunity to read [the witness’s] deposition testimony to the jury.” Id. at 852. As a
result, we found that Jones had “bet on the jury and lost” and could not now be
“permitted to seek a new trial on the basis of potential prejudice that was apparent during
trial,” particularly given the fact that she “had ample reason and opportunity to seek
corrective action in the form of a mistrial before the jury returned its verdict” but chose
not to. Id.

                                                   B.

         As an initial matter, Jones involved a motion for a new trial brought under
Federal Rules of Civil Procedure 60(b)(3) and 60(d)(3), and not a motion for a new trial
pursuant to Rule 59(a). 617 F.3d at 851. This distinction matters. A timely motion
brought under Rule 59 will “destroy[] the finality of judgment.” 12-59 Moore’s Federal
Practice § 59.12[1] (3d ed. 2012). Unlike Rule 59, Rule 60 provides relief from final
judgment.3 See Fed. R. Civ. P. 60(b), (c)(2) (“The motion does not affect the judgment’s


         3
          The defendants argue that the rationale for granting a Rule 59(a) motion for a new trial is
“subsumed within [sic] Rule 60 rationale, which gives much more leeway for granting a new trial than
59(a).” Thus, the defendants contend, if the waiver rule applies to Rule 60 motions, it must also apply to
Rule 59 motions. However, because a Rule 59 motion may be granted for any reason for which a new trial
has previously been granted in an action at law in federal court, instead of only the enumerated reasons
No. 11-1175            Park West Galleries v. Hochman, et al.                                      Page 8


finality or suspend its operation.”), (d); In re Saffady, 524 F.3d 799, 803 (6th Cir. 2008)
(“The inherent power to vacate orders prior to entry of final judgment is implicitly
recognized in Rule 59 . . . and is distinct from the power explicitly granted by Rule 60
to reopen cases well after final judgment has been entered.”). As a result, relief under
Rule 60(b) is “circumscribed by public policy favoring finality of judgments and
termination of litigation” in a way that Rule 59 relief is not. See Doe v. Lexington-
Fayette Urban Cnty. Gov’t, 407 F.3d 755, 760 (6th Cir. 2005) (internal quotation marks
omitted). Similarly, relief under Rule 60(d), which does not contain the one-year time
limit applicable to motions under Rule 60(b), is reserved for “cases of ‘injustices which,
in certain instances, are deemed sufficiently gross to demand a departure’ from rigid
adherence to the doctrine of res judicata.” United States v. Beggerly, 524 U.S. 38, 46
(1998) (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244
(1944)). Thus, as noted in Jones, Rule 60 does not provide relief from the consequences
of a deliberate choice, even if subsequent events reveal the choice to have been unwise.
Jones, 617 F.3d at 851; Cacevic v. City of Hazel Park, 226 F.3d 483, 491 (6th Cir. 2000).
However, the public policy concerns that drive Rule 60, and the adoption of a waiver
rule in Jones, do not invariably apply with equal force to Rule 59. Rule 59 imposes a
lower standard for relief, and does not implicate finality concerns to the same degree,
since such a motion must be brought within twenty-eight days after the entry of
judgment.

         Jones’s citations to Carter and Morton Butler Timber—which predated the
adoption of the Federal Rules of Civil Procedure in 1938, and involve distinguishable




in Rule 60, the “standard for granting a Rule 60 motion is significantly higher than the standard applicable
to a Rule 59 motion.” Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir. 1998). Further, relief
under Rule 60(b) is circumscribed by the interests in finality and the termination of litigation. Ford Motor
Co. v. Mustangs Unlimited, Inc., 487 F.3d 465, 468 (6th Cir. 2007). Therefore, while several of the
grounds for relief that may provide the basis for a Rule 59 motion may also serve as grounds for relief from
a final judgment under Rule 60, the two rules are governed by different standards and have been
interpreted differently. It is inaccurate to say that one subsumes the other. See 12-59 Moore’s Federal
Practice-Civil § 59.05[7][b] (“[T]hese rules serve different purposes and produce different
consequences.”).
No. 11-1175            Park West Galleries v. Hochman, et al.                                    Page 9


contexts—do little to strengthen the defendants’ argument that Jones should apply
broadly to include motions for a new trial brought under Rule 59.4

         Carter involved a criminal trial where the defendant argued that the prosecutor
committed misconduct by making an improper closing argument. Carter, 18 F.2d at
853. The alleged misconduct and the actions taken by the trial court in response were
not in the record on appeal, but we found that the evidence was sufficient to support a
guilty verdict for voluntary manslaughter and that “in the absence of a showing to the
contrary,” it is assumed that the trial court carried out its duty “to immediately interfere
sua sponte, reprimand the offending counsel, and admonish the jury . . . .” Id. Since the
general rule is that an improper argument by a prosecutor is not a ground for reversal
where the jury is specifically told to disregard it, and it must be assumed that the court
did “reprove counsel” and provide proper instructions to the jury, we found that any
prejudice that could not be removed by the jury instruction was “waived by the failure
of the defendant to move for a mistrial.” Id. Despite our conclusion that the potential
prejudice had to be assumed to have been remedied, we also stated that by failing to
move for a mistrial and consenting to the continuance of trial, the plaintiff took “his
chance of a favorable verdict, and if the verdict be ‘guilty’ [he should not] then [be
allowed to] assert it was founded to a material extent upon misconduct of counsel.” Id.
Although in Carter we applied a waiver rule to a criminal defendant who failed to move
for a mistrial, Carter’s relevance is diminished because it is a criminal case involving
a different procedural context.

         In Morton Butler Timber, a condemnation case, the appellant landowners argued
that they were entitled to a new trial in part due to the alleged misconduct of the
government attorneys in cross-examining some of the appellants’ witnesses. 91 F.2d at
889–90. After reviewing the record, we found that the trial judge had properly excluded


         4
          The defendants also argue that Clarksville-Montgomery County School System v. United States
Gypsum Co., 925 F.2d 993 (6th Cir. 1991), supports their position. However, Clarksville-Montgomery did
not turn on waiver. Although the opinion does set forth Clarksville’s counsel’s specific statement that
Clarksville was not going to ask for a mistrial, even though a witness for the defendant had violated the
court’s sequestration rule, we affirmed the denial of the motion for a new trial on the grounds that
Clarksville failed to demonstrate that it was prejudiced because the district court’s actions sufficiently
remedied any prejudice that resulted from the improper testimony. Id. at 1002–03.
No. 11-1175        Park West Galleries v. Hochman, et al.                         Page 10


the evidence complained of and that the conduct complained of was not sufficiently
pronounced or persistent to prejudice the jury. Id. at 890. Although we found that the
landowners suffered no prejudice and thus that the motion for a new trial was correctly
denied, we noted, arguably in dicta, that “[f]urthermore, we think the point was waived
by failure of the appellants to move for a mistrial.” Id. The defendants’ reliance on
Morton Butler Timber for the proposition that it established a general rule requiring a
motion for a mistrial is misplaced, since the heart of the case dealt with the no-prejudice
finding.

       Although the defendants argue that “the holding in Jones . . . and its
distinguishing of City of Cleveland establishes that the waiver doctrine applies to a
party’s request for a new trial, even under FRCP 59,” Jones clearly distinguishes City
of Cleveland based on the absence of a request for relief under Rule 60. In City of
Cleveland, we found the district court erred in not granting a new trial due to misconduct
on the part of the City’s counsel, which included frequent “improper and prejudicial
references” to the size and international character of the defendant corporation and the
amount of insurance coverage carried by the defendant. 624 F.2d at 757–58. The
defendant corporation raised objections to the comments and the district court gave
curative instructions to the jury. Id. at 758. We granted the defendant’s request for a
new trial because the misconduct was pervasive and the instructions were not sufficient
to dispel the prejudice. Id. at 760.

       In Jones, we noted that although the defendant corporation in City of Cleveland
never moved for a mistrial, we granted a new trial to the defendant corporation.
617 F.3d at 852. The Jones court distinguished the situation in City of Cleveland by
noting that “the City never challenged the propriety of granting Rule 60 relief despite the
losing party’s failure to seek a mistrial. Had we faced that argument in City of
Cleveland, we would have been bound to apply our clear precedent from Morton Butler
Timber Co. and Carter . . . .” Id. The defendants argue that this discussion of City of
Cleveland demonstrates that the same rule applies to Rule 59 motions for a new trial.
However, they fail to acknowledge that the Jones court specifically states that City of
No. 11-1175         Park West Galleries v. Hochman, et al.                          Page 11


Cleveland involved no challenge to “the propriety of granting Rule 60 relief . . . .” Id.
(emphasis added). On its face, Jones does not directly implicate Rule 59 motions for a
new trial, and its efforts to distinguish City of Cleveland say nothing about the
availability of relief under Rule 59. Further, City of Cleveland provides even less
support to the defendants than Jones, because there no party challenged the grant of
relief based on the failure to move for a mistrial.

        The defendants also argue that several circuits have adopted a similar waiver rule
governing requests for a new trial whereby a motion for a mistrial must precede a motion
for a new trial based on misconduct known to the moving party before the case is
submitted to the jury. However, contrary to the defendants’ assertions, much of the
persuasive precedent focuses on the failure to make either an objection or a motion for
a mistrial, suggesting that either would be sufficient to preserve the right to a new trial
on a motion for a new trial under Rule 59. See, e.g., Angelo v. Armstrong World Indus.,
Inc., 11 F.3d 957, 962 (10th Cir. 1993) (focusing on failure to make contemporaneous
objection and citing Computer Systems Engineering, Inc. v. Qantel Corp., 740 F.2d 59,
64 (1st Cir. 1984), for proposition that the failure to object or to move for a mistrial bars
consideration of a challenge to an improper closing argument); Nissho-Iwai Co. v.
Occidental Crude Sales, Inc., 848 F.2d 613, 619 (5th Cir. 1988) (“Nissho failed to object
to Occidental’s tactics either at the time of the argument or at a sidebar conference . . . .
Nissho did not move for a mistrial before the case was submitted to the jury. . . . Not
until its strategy failed did Nissho register its first complaint about Occidental’s closing
argument.”); Computer Sys. Eng’g, Inc. v. Qantel Corp., 740 F.2d 59, 69 (1st Cir. 1984)
(“Qantel’s failure to object to the argument at trial or to move for a mistrial bars it from
urging the improper argument as grounds for a new trial after the jury returned its
verdict.”) (emphasis added).

        Further, at least with respect to motions for a new trial based on improper closing
arguments, the Eighth Circuit has adopted the clear rule that “[a] party need not object
to an offensive argument and move for a mistrial in order to preserve the right to bring
a motion for a new trial.” Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346, 353
No. 11-1175         Park West Galleries v. Hochman, et al.                           Page 12


(8th Cir. 2002). This rule is implied by the First Circuit’s decision in Computer Systems
Engineering, 740 F.2d at 69. Indeed, the general rule appears to be that a proper
objection to known misconduct at trial is sufficient to preserve the right to later move
for a mistrial under Rule 59. See 12-59 Moore’s Federal Practice § 59.13[2][c][ii] (“As
with all misconduct cases, the party misconduct must be prejudicial and a timely
objection is required to support a motion for a new trial.”). This court has also cited
Computer Systems Engineering and Nissho-Iwai Co. approvingly to support the
proposition that, in a civil action, a motion for a new trial will not be granted on grounds
not called to the attention of the court during the trial itself unless failing to grant a new
trial would result in a gross injustice. United States v. Walton, 909 F.2d 915, 924
(6th Cir. 1990) (holding that district court properly denied defendant’s motion for a new
trial based on tax filing status when issue was raised for the first time in reply to
government’s response to the defendant’s motion for a new trial and no gross injustice
would occur because defendant had access to the documents regarding filing status
before trial started).

        We also find that declining to import the waiver rule from Jones into the Rule 59
context is more consistent with our precedent where we have declined to impose an
objection requirement in order for a party to preserve the right to relief in the form of a
new trial. We have previously considered an appeal from the denial of a defendant’s
motion for a new trial premised in part on a claim that the plaintiff made an improper
closing argument, where the plaintiff argued that the defendant waived the argument by
failing to object to the closing argument at trial. Clark v. Chrysler Corp., 436 F.3d 594,
609 & n.19 (6th Cir. 2006) (Clark II). In Clark II, the defendant, Chrysler, had filed a
motion for judgment as a matter of law which the district court had denied at the end of
the plaintiff’s case, but moved for a new trial under Rule 59 only after the jury returned
its verdict. Clark II, 436 F.3d at 597; see also Clark v. Chrysler Corp., 310 F.3d 461,
466 (6th Cir. 2002) (Clark I). This court reached the merits of the motion for a new trial
and found that a new trial was not warranted. Clark II, 436 F.3d at 609–10. In reaching
the merits of the new trial motion, we rejected Clark’s argument that Chrysler waived
its argument regarding the closing argument by failing to object at trial, stating that “[i]n
No. 11-1175           Park West Galleries v. Hochman, et al.                                   Page 13


the Sixth Circuit, if ‘counsel’s closing argument is improper, and if there is a reasonable
probability that the verdict of [the] jury has been influenced by such conduct, it should
be set aside,’ even if opposing counsel failed to object.” Id. at 609 n.19 (quoting
Strickland v. Owens Corning, 142 F.3d 353, 358 (6th Cir. 1998)).5 In Owens Corning,
we similarly found that the defendant did not waive its right to appeal and request a new
trial based on allegedly improper remarks made during closing argument, even though
the defendant did not contemporaneously object or request a curative instruction at trial.
142 F.3d at 358. Given that we have, in certain circumstances, declined to impose an
objection requirement on penalty of waiving the right to relief in the form of a new trial,
it would be inconsistent to impose a requirement that a party make a motion for a
mistrial in order to preserve such relief.

         Our conclusion that Jones should not be extended to the situation presented by
this case is reaffirmed by the fact that, here, the district court could have granted a new
trial to Park West sua sponte and in fact expressed its inclination to do so. We have
stated that a district court considering a Rule 59 motion must be guided by the principle
that “where an injustice will otherwise result, the trial judge has the duty as well as the
power to order a new trial.” United States ex rel. SNAPP, Inc. v. Ford Motor Co.,
532 F.3d 496, 508 (6th Cir. 2008) (internal quotation marks omitted). The Supreme
Court has described “the authority of trial judges to grant new trials” under Rule 59(a)
as “large.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996). Rule 59(d)
grants the district court the power to order a new trial “on its own . . . for any reason that
would justify granting [a new trial] on a party’s motion.” Fed. R. Civ. P. 59(d).
Importing the waiver rule from Jones and the Rule 60 context would be contrary to the
structure and spirit of Rule 59, which provides district courts with the discretion to grant
new trials in the interest of justice.




         5
           Nonetheless, we did note that the degree of prejudice required to obtain a new trial on appeal
is higher in the absence of objections at trial. Clark II, 436 F.3d at 609 n.19.
No. 11-1175        Park West Galleries v. Hochman, et al.                        Page 14


                                          IV.

       For the foregoing reasons, we hold that the waiver rule set forth in Jones does not
extend to Rule 59 motions for a new trial, and affirm the district court’s judgment.
No. 11-1175         Park West Galleries v. Hochman, et al.                         Page 15


                      ___________________________________

                       CONCURRING IN THE JUDGMENT
                      ___________________________________

        KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. While
I concur in affirming the district court’s judgment, I write separately to express my views
as to the proper grounds for reaching this result. I do not believe it is necessary to reach
the question of waiver and the application of Jones v. Illinois Central Railroad Co.,
617 F.3d 843 (6th Cir. 2010), in this instance.

        This Circuit has previously recognized that “waiver is a prudential rule, not a
jurisdictional one.” Vistein v. Am. Registry of Radiologic Technologists, 342 F. App’x
113, 124 n.3 (6th Cir. 2009) (unpublished opinion) (quoting United States v. Martin, 438
F.3d 621, 627 (6th Cir. 2006)) (internal quotation marks omitted). “We have generally
considered the following factors in determining whether to exercise our discretion to
adjudicate the merits of an issue that has been waived: 1) whether the question is one
of law or one that requires some factual development, 2) whether the proper resolution
of the issue is clear beyond doubt, 3) whether the failure to take up the issue will result
in a miscarriage of justice, and 4) the parties’ right to have their issues considered by
both a district judge and an appellate court.” Id. (citing Scottsdale Ins. Co. v. Flowers,
513 F.3d 546, 552-53 (6th Cir. 2008)).

        The question before us is undoubtedly one of law: whether the prejudicial
conduct of defense counsel was so severe and pervasive as to warrant granting Park
West’s request for a new trial. The answer to this question is clear, and failure to resolve
it would result in an affirmative miscarriage of justice. As the district court identified
in its opinion of August 16, 2010, the misconduct by defense counsel in this case “was
frequent, highly prejudicial, and permeated the trial proceedings.” Park West Galleries,
Inc. v. Global Fine Art Registry, LLC, 732 F. Supp. 2d 727, 754 (E.D. Mich. 2010).
Indeed, the conduct was so extreme that the district court concluded not even curative
instructions could have remedied its prejudicial effect and, for that reason, held that Park
West’s “failure to object and/or request a curative instruction” in the face of each
No. 11-1175           Park West Galleries v. Hochman, et al.                       Page 16


instance of misconduct did “not constitute a sufficient basis for the [district court] to
deny [Park West’s] motion for a new trial.” Id. at 755. This is the precise scenario in
which, regardless of waiver, a court should intervene to ensure that the interests of
justice are served.

        Affirming the district court’s judgment in this instance is also consistent with the
expansive nature of the district court’s power under Rule 59. It is well established that
a district court has “ample power to prevent what he [or she] considers to be a
miscarriage of justice” pursuant to Rule 59 by invoking the Rule 59(e) power to order
a new trial sua sponte. See 11 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2803 (2d ed. 2012). We generally defer to the exercise of
that power, reviewing it only for abuse of discretion. See id.; Nolfi v. Ohio Ky. Oil
Corp., 675 F.3d 538, 552 (6th Cir. 2012). Although the district court did not purport to
exercise explicitly such power in this instance, the district court certainly suggested that
it would have been so inclined had Park West not made motion for this specific relief.
See Park West Galleries, 732 F. Supp. 2d at 749-51. Because of the pervasiveness of
the misconduct present in this case, I would not hesitate to affirm the exercise of the
district court’s discretion in this regard.

        Based on the foregoing, I conclude that we need not decide the question of
waiver because, regardless, the interests of justice require that we affirm the district
court’s grant of Park West’s motion for a new trial. Accordingly, I concur in the
judgment.
