                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 25 2012

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




                            FOR THE NINTH CIRCUIT



ELLEN J. O’PHELAN,                               No. 11-16541

              Plaintiff - Appellee,              D.C. No. 1:09-cv-00236-ACK-
                                                 KSC
  v.

GERARD DAMIAN LEE LOY,                           MEMORANDUM *

              Defendant - Appellant,

BENTON BOLOS and COUNTY OF
HAWAII,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Hawaii
                   Alan C. Kay, Senior District Judge, Presiding

                           Submitted October 17, 2012 **
                                Honolulu, Hawaii

Before: REINHARDT, THOMAS, and PAEZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Gerard Lee Loy appeals the district court’s order denying his motion for

judgment as a matter of law, denying his Fed. R. Civ. P. 59(e) motion to amend the

judgment, and granting O’Phelan’s motion for judgment as a matter of law, thereby

awarding O’Phelan $1.00 in nominal damages. We affirm.

      1. The district court properly found that there was substantial evidence to

support the jury’s findings that Lee Loy had invaded O’Phelan’s privacy.

Reviewing de novo the denial of a motion for judgment as a matter of law, we will

uphold a verdict if it is supported by “substantial evidence.” First Nat. Mortg. Co.

v. Fed. Realty Inv. Trust, 631 F.3d 1058, 1067 (9th Cir. 2011).

      The evidence presented to the jury included statements that Lee Loy made in

a related state court matter, in which he stated that “I got,” “I saw,” “I see,” “I’m

looking at,” “I do have now”; “[t]he police report which now includes the medical

– some [of O’Phelan’s] medical records.” The jury could have properly relied on

this evidence, along with other relevant evidence presented at trial in concluding

that Lee Loy had invaded O’Phelan’s privacy. While Lee Loy presented evidence

at trial to explain his inculpatory statements, the jury was not required to credit that

evidence.




                                      Page 2 of 5
      2. The district judge properly applied Hawaii tort law to the jury’s findings

on the Special Verdict form and entered judgment in favor of O’Phelan. The

Special Verdict “comprise[d] only factual findings,” Zhang v. Am. Gem Seafoods,

Inc., 339 F.3d 1020, 1031 (9th Cir. 2003), and Hawaii tort law has adopted the

Restatement (Second) of Torts definition of invasion of privacy, which does not

require a plaintiff to prove actual damages in order to prevail in the subcategory of

“intrusion upon seclusion” at issue here. See Shahata v. W Steak Waikiki, LLC,

721 F. Supp. 2d 968, 986 (D. Haw. 2010), aff’d, 2012 WL 3634578 (9th Cir. Aug.

24, 2012); Restatement (Second) Torts § 652B (1977). Thus, although the jury

found that Lee Loy’s improper intrusion of O’Phelan’s privacy did not “cause[]

[O’Phelan] to sustain injury, damage, loss or harm,” the district court correctly

determined that O’Phelan was entitled to judgment.

      3. Relatedly, the district court properly denied Lee Loy’s Fed. R. Civ. P.

59(e) motion to amend the judgment. “The denial of a motion under Rule 59(e) to

alter or amend the judgment is reviewed for abuse of discretion.” Ta Chong Bank

Ltd. v. Hitachi High Technologies Am., Inc., 610 F.3d 1063, 1066 (9th Cir. 2010).

Reconsideration of a judgment after its entry is “an extraordinary remedy.” Kona

Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). The district




                                     Page 3 of 5
court “enjoys considerable discretion in granting or denying” a Rule 59(e) motion.

McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir. 1999).

      The district court properly denied Lee Loy’s motion to amend the judgment

for the same reasons that it denied Lee Loy’s motion for judgment as a matter of

law. Accordingly, the district court did not abuse its discretion when it denied Lee

Loy’s Rule 59(e) motion.

      4. The district court properly granted O’Phelan’s motion for judgment as a

matter of law, awarding O’Phelan $1.00 in nominal damages. “Judgment as a

matter of law is appropriate when the evidence presented at trial permits only one

reasonable conclusion.” Mangum v. Action Collection Serv., Inc., 575 F.3d 935,

938-39 (9th Cir. 2009) (internal quotations and citation omitted).

      Although O’Phelan did not move for judgment as a matter of law prior to the

jury’s verdict, the district court properly applied the narrow “plain error”

exception. As a general matter, we “strictly adhere to the requirements of [Fed. R.

Civ. P.] 50(b), which prohibit a party from moving for judgment as a matter of law

after the jury’s verdict unless that motion was first presented at the close of

evidence.” Image Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195,

1212 (9th Cir. 1997). The only exception to this rule is the plain error doctrine.

Cabrales v. County of Los Angeles, 864 F.2d 1454, 1459 (9th Cir. 1988) cert.


                                     Page 4 of 5
granted, judgment vacated, 490 U.S. 1087 (1989) and opinion reinstated, 886 F.2d

235 (9th Cir. 1989). “Only where there is such plain error apparent on the face of

the record that failure to review would result in a manifest miscarriage of justice”

should such a motion, raised for the first time after judgment, be granted. Id.

      Here, we agree with the district court’s reasoning that because the jury found

for O’Phelan on her invasion of privacy claim, but also found that O’Phelan failed

to prove compensatory damages, O’Phelan was entitled to nominal damages of

$1.00 as a matter of law. Failure to award such damages constituted plain error

and the district court properly corrected the error by awarding O’Phelan nominal

damages.

      AFFIRMED.




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