United States District Court, D. Nevada
HEATHER ATWELL, HEATHER ATWELL as Trustee of ATWELL FAMILY TRUST, HEATHER ATWELL as Administrator of the Estate of David Atwell, and RESORT PROPERTIES OF AMERICA, INC., Plaintiffs,
WESTGATE RESORTS, INC., WESTGATE RESORTS LTD, CENTRAL FLORIDA INVESTMENTS, INC., WESTGATE LAS VEGAS RESORT LLC, Defendants.
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.
the Court are Plaintiffs’ Motion for Judgment, ECF No.
144, and Defendants’ Motion for Judgment, ECF No. 145,
and Motion for New Trial, ECF No. 146.
removed this action to federal court on November 15, 2015.
ECF No. 1. Plaintiffs filed the Amended Complaint which
serves as the operative complaint in this action on November
18, 2016. ECF No. 49. Defendants filed a Motion for Summary
Judgment on April 21, 2017. ECF No. 60. Plaintiffs filed a
Motion for Partial Summary Judgment on the same day. ECF No.
64. A hearing on those motions was held on March 21, 2018.
ECF No. 81. Both motions were denied. ECF No. 82. A jury
trial was held on October 9-11, 2018 and October 15, 2018.
ECF Nos. 127, 128, 131, 132. The jury returned a verdict for
Plaintiffs Heather Atwell as Administrator of the Estate of
David Atwell and Resort Properties of America, Inc. (RPA)
against Defendants Westgate Las Vegas Resort, LLC and Central
Florida Investments, Inc. on both quantum meruit and fraud
claims. ECF No. 135. Both parties filed the instant
respective Motions for Judgment on November 5, 2018, and
Defendants also filed the instant Motion for New Trial on
that day. Both parties responded on November 26, 2018. ECF
Nos. 147-49. Both parties replied on December 10, 2018. ECF
Heather Atwell, Heather Atwell as Trustee of Atwell Family
Trust, Heather Atwell as Administrator of the Estate of David
Atwell, and Resort Properties of America, Inc. filed suit
against Westgate Resorts Inc., Westgate Resorts LTD., Central
Florida Investments, Inc., and Westgate Las Vegas Resort, LLC
on November 18, 2016. ECF No. 49. Plaintiffs alleged Westgate
contracted with Plaintiffs to provide real estate brokerage
services in Clark County and that Plaintiffs contacted owners
of several properties, including the Las Vegas Hotel (LVH),
but that Plaintiffs were denied a commission for their
efforts on the sale of the LVH. Id. at 5-10.
Plaintiffs further alleged that Defendants fraudulently
misrepresented an interest in buying another property, the
Riviera, in an effort to turn Plaintiffs’ attention
away from the LVH sale, and that Plaintiffs relied on that
misrepresentation. Id. at 16-17.
close of arguments at trial, the Court dismissed all claims
against all Defendants except Central Florida Investments,
Inc. and Westgate Las Vegas Resort, LLC. ECF No. 131.
Plaintiffs also stipulated to the dismissal of the claims of
Heather Atwell, individually. Id. Thus, the
remaining Plaintiffs were Heather Atwell both as
Administrator of the Estate of David Atwell and as Trustee of
the Atwell Family Trust, and RPA. The remaining two claims
asserted against Defendants Central Florida Investments, Inc.
and Westgate Las Vegas Resort, LLC were quantum meruit and
fraud. Id. The jury found in favor of both
Plaintiffs against both Defendants, and awarded $375, 000 to
each Plaintiff from each Defendant, for a total of $1.5
million on the quantum meruit claim. ECF No. 135. The jury
also found in favor of both Plaintiffs against both
Defendants for the fraud claim, and awarded $250, 000 to each
Plaintiff from each Defendant, for a total of $1 million.
Rule of Civil Procedure 58 governs entry of judgment.
Fed.R.Civ.P. 58. It states, inter alia, that
“[s]ubject to Rule 54(b) and unless the court orders
otherwise, the clerk must, without awaiting the court’s
direction, promptly prepare, sign, and enter the judgment
when: (A) the jury returns a general verdict . . . .”
Id. at 58(b). “A party may request that
judgment be set out in a separate document as required by
Rule 58(a).” Id. at 58(d).
Rules 50(b) and 59(a)
Rule of Civil Procedure 50(a) permits a party to move for
judgment as a matter of law “at any time before the
case is submitted to the jury” “[i]f a party has
been fully heard on an issue during a jury trial and the
court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that
issue.” Rule 50(b) allows a party to renew that motion
if not granted “no later than 28 days after the entry
of judgment” and include “an alternative or joint
request for a new trial under Rule 59 . . . . In ruling on
the renewed motion, the court may: (1) allow judgment on the
verdict, if the jury returned a verdict; (2) order a new
trial; or (3) direct the entry of judgment as a matter of
to Federal Rule of Civil Procedure 59(a), a new trial may be
granted in an action in which there has been a trial by jury
“for any reason for which a new trial has heretofore
been granted in an action at law in federal court.”
“The grant of a new trial is ‘confided almost
entirely to the exercise of discretion on the part of the
trial court.’” Murphy v. City of Long
Beach, 914 F.2d 183, 186 (9th Cir. 1990) (quoting
Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36
“Rule 59 does not specify the grounds on which a motion
for a new trial may be granted . . . . [courts] are thus
bound by those grounds that have been historically
recognized.” Zhang v. Am. Gem Seafoods, Inc.,
339 F.3d 1020, 1035 (9th Cir. 2003). Such historical grounds
include claims “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[.]” Montgomery Ward & Co. v.
Duncan, 311 U.S. 243, 251 (1940); see also
Passantino v. Johnson & Johnson Consumer Prods., 212
F.3d 493, 510 n.15 (9th Cir. 2000). “[E]rroneous jury
instructions, as well as the failure to give adequate
instructions, are also bases for a new trial.”
Murphy, 914 F.2d at 187.
trial court “is not limited to the grounds a party
asserts to justify a new trial, but may sua sponte raise its
own concerns about the . . . verdict. Ultimately, the
district court can grant a new trial under Rule 59 on any
ground necessary to prevent a miscarriage of justice.”
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