United States District Court, D. Nevada
ORDERGRANTINGMOTIONFOR NEW TRIAL (ECF NO.
P. GORDON UNITED STATES DISTRICT JUDGE
Bellagio, LLC filed a motion for judgment as a matter of law
or, alternatively, for a new trial. ECF No. 214. Because the
verdict is based on a false piece of critical evidence, I
will vacate the jury's verdict and order that a new trial
trial, plaintiff Andi Kraja testified that he took two
photographs of the “Fat Andy” sign at issue in
this case. He testified that took the first photograph
(admitted as trial exhibit 1) in June 2014 and that he took
the second photograph (admitted as trial exhibit 2) in August
2014. After the trial, Bellagio's new counsel had an
expert analyze the metadata for the two photographs. The
expert concluded that the June 2014 photograph (exhibit 1)
was actually taken in August 2014, three minutes before the
August photograph that was admitted as exhibit 2. ECF Nos.
214-4, 214-5. Kraja's expert does not dispute that
conclusion. ECF No. 237 at 23. Thus, Kraja testified falsely
about the date he took the photograph that is trial exhibit
trial judge [has] the right, and indeed the duty, . . . to
set aside the verdict of the jury . . . where, in his
conscientious opinion, the verdict . . . is based upon
evidence which is false, or to prevent, in the sound
discretion of the trial judge, a miscarriage of
justice.” Moist Cold Refrigerator Co. v.
Lou Johnson Co., 249 F.2d 246, 256 (9th Cir. 1957).
False testimony does not have to rise to the level of perjury
to justify a new trial. “The trial court may grant a
new trial only if the verdict is contrary to the clear weight
of the evidence, is based upon false or perjurious evidence,
or to prevent a miscarriage of justice.” Passantino
v. Johnson & Johnson Consumer Prod., Inc., 212 F.3d
493, 510 (9th Cir. 2000).
false evidence should be the basis of a new trial. Witnesses
may misremember facts and testify falsely without intending
to do so. And the false evidence may not be important in the
overall scheme of the trial. I am loathe to overturn a
jury's verdict. But where, as here, the false testimony
was about a critical piece of evidence, and Kraja relied
heavily on that evidence to prove both liability and damages,
I must seriously consider granting a new trial.
that the alleged June photograph was actually taken in August
is more than just impeachment evidence. During opening and
closing, Kraja's counsel repeatedly called the
photographs the “silent witnesses” that
contradicted the testimony of the Bellagio's witnesses,
even suggesting they were the “most important
witness.” See ECF No. 209 at
130:10-25; ECF No. 210 at 168:22-25 and
180:12-19. The photographs were offered as
unrebuttable proof that the Fat Andy sign had been displayed
in the same location from June through September. Kraja's
counsel suggested in closing that the Bellagio's
witnesses lied because the photographs and videos do not lie.
ECF No. 210 at 180:20-25. That is very different from having
photographs only allegedly demonstrating that it was
displayed from August to September. The alleged June
photograph contradicted the testimony of several Bellagio
witnesses who said they looked around the restaurant, even in
June and July, and did not see a sign. If the jurors believed
the photograph was taken in June, they easily could have
believed the Bellagio knowingly presented three witnesses who
lied on the stand, significantly harming Bellagio's case.
That also may have factored into the jury's calculation
of damages. The critical nature of the alleged June
photograph cannot be ignored.
fails to explain why it did not investigate the metadata and
discover this issue before trial. Kraja argues the motion
should be denied for that reason. But the Ninth Circuit has
held that “even assuming that [the defendant] was not
diligent in uncovering the fraud, the district court was
still empowered to set aside the verdict, as the court itself
was a victim of the fraud.” Pumphrey v.
K.W. Thompson Tool Co., 62 F.3d 1128, 1133 (9th Cir.
1995) (citing Hazel- Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 246 (1944). Given the
importance at trial of the false evidence, a new trial is
Kraja presented the false evidence, Bellagio is not entirely
without blame. Had Bellagio timely discovered this issue-and
there is no reason it could not and should not have done so
during the discovery period-a second trial would not be
necessary. It is difficult to understand why Bellagio did not
pursue this during discovery, given that each side's
story about the photograph was directly contradictory.
Because Bellagio could have avoided this problem, fairness
dictates that Bellagio reimburse Kraja for the fees and costs
incurred in connection with the first trial. Counsel shall
confer about those fees and costs. If they cannot reach an
agreement on an amount, Kraja will submit an application for
fees and costs.
THEREFORE ORDER that the Bellagio's motion for judgment
or new trial (ECF No. 214) is GRANTED IN
PART. The motion for judgment as a matter of law is
denied without prejudice as moot. I grant the alternative
relief of a new trial. The verdict entered after the April
1-3, 2019 trial (ECF Nos. 199, 202) is vacated.
FURTHER ORDER the parties to file a proposed Pretrial Order
by February 5, 2020.
FURTHER ORDER the parties to confer about the fees and costs
Kraja incurred in connection with the first trial. If the
parties cannot reach an agreement on an amount for Bellagio
to reimburse, Kraja will submit an application for fees and
costs, with supporting documentation, by February 5, 2020.
Bellagio will have 21 days to file an opposition, and Kraja
may file a reply 14 days thereafter.
 “And I think that once
you've heard all of the evidence in this case, and
particularly the most important witness in this case, which
is a silent witness, Mr. Kraja, he took some photographs, but
he also took video, two videos, one on August 14th, 2014,
that shows the general area where the sign was and how it was
behind the Plexiglass. He took another video again on
September 19th, which is a little over a month later. He had
taken a photograph of it -- the first photograph that he took
was back in June. He took that and showed it to his friends
to say, look what they're -- look what they're doing
to me here, and he also, when he met with Human Resources,
his testimony is that he showed it to Human Resources. The
Human Resources person will probably dispute that, and
you're going to have to really use your eyes and follow