Unpublished Disposition, 931 F.2d 60 (9th Cir. 1989)

MEMORANDUM^** 

Defendant-appellant Wolfgang Morandell appeals the district court's denial of his Rule 59 and Rule 60(b) motions for a new trial. He contends that a letter from the plaintiff to a third party, discovered after judgment was entered, requires that he be granted relief from the district court judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Paulaner-Salvator-Thomasbrau AG ("Paulaner") brought a diversity action in federal district court against Wolfgang Morandell Distributing, Inc. and Wolfgang Morandell for breach of contract, money owed on an account stated and punitive damages. The suit arose out of a verbal agreement for importation of Paulaner's beer by Wolfgang Morandell. From 1983 to 1987, Wolfgang Morandell and his business, Morandell Wine Import, had the exclusive license to import Paulaner keg beer into California.

After a bench trial, the court ruled for Paulaner on only the breach of contract claim against Wolfgang Morandell, the individual ("Morandell"). It refused to find that there was money owed on an account stated or that punitive damages were justified.¹  The district court found that part of the import licensing arrangement between Paulaner and Morandell included an agreement that Morandell return to Paulaner the imported beer kegs once they had been emptied. While the court did not find that there was an express agreement regarding money liability if a keg was not returned, it concluded that Morandell breached its contract with Paulaner by not returning all empty kegs. It then determined that Paulaner had suffered damages equal to the 1987 market value of the unreturned kegs.

Paulaner and Morandell disputed exactly how many kegs were never returned. Paulaner presented the court with a letter sent to Morandell dated May 15, 1987, after their business relationship had ended, stating that 695 kegs had not been returned. To substantiate this number, Paulaner provided the court with business records showing how many kegs were sent out to Morandell and how many were returned. Morandell contended that the numbers presented by Paulaner were inaccurate. However, he presented no documentary evidence of his own to contradict the number given by Paulaner. The district court found Morandell liable to Paulaner for $43,885.94, the market value of 695 kegs in 1987.

After judgment was entered, Morandell filed a motion for relief from judgment under Rule 60(b) and for a new trial under Rule 59 based on newly discovered evidence. The evidence consists of a letter dated October 1, 1987, from Paulaner to Raden & Sons Wine Merchants, another distributor. The letter states, in relevant part:

As we have difficulties with the control of our keg accounts, we will in future only credit to your keg account the number of kegs you ordered with us.

In case you sent kegs to one of our other importers in the USA, we can only credit your account if we get a written confirmation from both partners. The price for each keg that has not been sent back will be 110,--DM.

Morandell contends that this letter is evidence of the inaccuracy of Paulaner's accounting system for returned kegs. In addition, he asserts that Paulaner violated the district court's discovery order by failing to provide him with a copy of this letter before trial.

The district court denied the Rule 59 motion because it was untimely. It then refused to grant the Rule 60(b) motion on the grounds that the evidence presented did not fall into the category of newly discovered evidence, nor did it prove fraud on the court by the plaintiff. Morandell timely appeals.

DISCUSSION

A district court's decision concerning a motion for a new trial pursuant to Fed. R. Civ. P. 59 is reviewed for an abuse of discretion. Hard v. Burlington N. Railroad, 812 F.2d 482, 483 (9th Cir. 1987). A decision regarding a motion to vacate pursuant to Fed. R. Civ. P. 60(b) is reviewable for a clear showing of abuse of discretion. Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989).

Rule 59(b) requires that a motion for a new trial brought under Rule 59 must "be served not later than 10 days after the entry of the judgment." Fed. R. Civ. P. 59(b). The district court judgment here was entered on November 14, 1989. The motion for new trial under Rule 59 was received by the district court December 14, 1989. The motion was dated by Morandell on December 5, 1989. The district court rightly denied the motion as untimely. Morandell offers no argument to contest the district court's finding that his motion was untimely or any good cause for his delay. Claims which are not briefed by appellant are presumed abandoned. Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988).

We find that the district court did not abuse its discretion when it denied Morandell's Rule 59 motion for untimeliness.

Rule 60(b) (2) provides that a court may grant a party relief from a judgment based on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Fed. R. Civ. P. 60(b) (2) (1990). The test for newly discovered evidence requires that the moving party show that the evidence: (1) existed at the time of trial, (2) could not have been discovered through due diligence, and (3) was so important that it would have likely changed the outcome of the case. Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987). The district court here determined that the letter produced by Morandell was in existence at the time of trial, but could have been discovered through due diligence on Morandell's part. The crucial element in the district court's view was that the letter was in Morandell's possession during the entire trial period.

The district court did not abuse its discretion in denying Morandell's 60(b) (2) motion. As the court pointed out, Morandell did not meet his burden of showing that due diligence on his part would not have produced the letter in time for trial. He asserts that the letter was one of 8,000 documents which had been produced in another related court action. Morandell has not explained to either the district or appellate court when the related court action occurred or when he gained possession of the letter. Absent any further explanation, the district court correctly found that due diligence by Morandell would have produced the letter in time for trial.

Although not addressed by the district court, Morandell's 60(b) (2) motion also fails the third part of the test. It is unlikely that the letter would have changed the outcome of the trial. The letter is dated over a year after Paulaner sent its last shipment of kegs to Morandell. The letter does not, as Morandell asserts, directly refute Paulaner's testimony regarding its accounting records of kegs which were unreturned by Morandell. Morandell claims that the letter is an admission by Paulaner. However, given the lack of evidence presented by Morandell at trial regarding the number of kegs unreturned, the letter would likely have no effect on the trial's disposition.

To receive a new trial under Rule 60(b) (3), "the moving party must establish that a judgment was obtained by fraud, misrepresentation, or misconduct, and that the conduct complained of prevented moving party from fully and fairly presenting the case." In re M/V Peacock, 809 F.2d 1403, 1404-05 (9th Cir. 1987). The moving party must establish the fraudulent acts by clear and convincing evidence. Jones v. Aero/Chem Corp., 921 F.2d 875, 878-79 (9th Cir. 1990). Under Rule 60(b) (3), the moving party must show that the other party's misrepresentation prevented it from presenting its case. Id. at 1405. " 'Although when the case involved the withholding of information called for by discovery, the party need not establish that the result in the case would be altered.' " Bunch v. United States, 680 F.2d 1271, 1283 (9th Cir. 1982) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978)).

Here Morandell contends that if Paulaner had complied with the district court's discovery order, the 1987 letter would have been produced and used at trial. On July 18, 1989, the district court issued an order to compel production by Paulaner of " [c]orrespondence between plaintiff Paulaner and its distributors in the United States pertaining to kegs imported by defendant Wolfgang Morandell." In denying Morandell's 60(b) (3) motion, the court found that the 1987 letter did not clearly fall within the discovery order. It noted that the letter does not specifically refer to Morandell and the reference to other importers does not necessarily include him because the letter was written over a year after his last activity as an importer. Finally, it held that Morandell had not shown by clear and convincing evidence that Paulaner's withholding of the letter constituted misconduct or fraud.

Morandell does not offer anything new in this appeal. We do not find that the district court abused its discretion in denying his 60(b) (3) motion.

CONCLUSION

The district court's denial of Morandell's Rule 59 motion for a new trial based on untimeliness is affirmed. In addition, Morandell has failed to meet his burdens for either a Rule 60(b) (2) or 60(b) (3) motion. The district court correctly denied those motions.

AFFIRMED.