Unpublished Disposition, 922 F.2d 845 (9th Cir. 1991)

MEMORANDUM^* 

Appellant Arnold A. Gaub appeals the district court's order denying his motion for a new trial, or, in the alternative, "a new trial of the particular issue of damages suffered by Quantum." Appellant's Motion for New Trial, Appellant's Excerpts of Record ("AER") 135; see District Court Order Denying New Trial, AER 177. Appellant also appeals the district court's order denying him prevailing party status. See District Court Order Re: Motion to Determine Prevailing Party, AER 179. We affirm the district court's orders.¹ 

We review for abuse of discretion a district court's denial of a motion for a new trial. Glanzman v. Uniroyal, Inc., 892 F.2d 58, 59 (9th Cir. 1989). Appellant urged upon the district court two bases upon which it should grant a new trial. First, he argued that the jury awarded him zero damages despite "overwhelming evidence as to the actual damages suffered by Quantum." See Appellant's Motion for New Trial, AER 105. Second, he argued that the jury was presented with prejudicial and irrelevant evidence. See id.

We hold that the trial court did not abuse its discretion in refusing to order a new trial based on the jury award of zero damages. As appellee notes, appellant points to almost no evidence regarding the fact of damage and causation. See Appellee's Brief at 13. The closest appellant comes to addressing these crucial issues²  is his argument that analysis of both parties' business records indicated that approximately 50% of appellee's sales of the allegedly copied units were made to Quantum's customers, and his statement that Quantum's "long presence in the market as well as the verifiable quality of the product distributed by Quantum, dictate [d] that Quantum could and would have made each of these sales made by [appellee]." Appellant's Brief at 19-20. Given the paucity of evidence on these crucial issues, we hold it was within the district court's discretion to deny appellant's request for a new trial on this basis.³ 

Second, appellant argued in his motion for a new trial that the district court erred in allowing evidence concerning appellant's patent claim to be heard by the jury, arguing that this evidence was, among other things, prejudicial, irrelevant and confusing. In its order denying appellant's motion for a new trial, the district court explicitly held that this evidence did not prejudice or confuse the jury. See District Court Order Denying New Trial, AER 178.

The district court did not abuse its discretion in denying the motion for a new trial based on the admission of the allegedly prejudicial evidence. Indeed, appellant gives no persuasive reason why the evidence prejudiced his chance for a fair trial. Appellant merely argues that the subject of the testimony was "a highly technical and confusing area of the law," whose admission resulted in "an undue diversion of the attention and focus of the jury to issues which were ultimately irrelevant to the claims to be decided by the jury." Appellant's Brief at 28. As described by appellant, the challenged evidence might perhaps cast appellant in an unfavorable light. However, the potential prejudice does not rise to a level sufficient to require the district court to exercise its discretion to grant a new trial.

In response to appellant's argument that the evidence was irrelevant, we need only point to Moran v. H.W.S. Lumber Co., 538 F.2d 238 (9th Cir. 1976), where we held that "the admission or exclusion of evidence on grounds of relevancy is in the federal courts a matter for the trial court's judgment, and is not a ground for reversal unless such action is inconsistent with substantial justice." Id. at 243. Appellant's argument does not convince us that the admission of this evidence was inconsistent with substantial justice. The district court's denial of a new trial on this basis was therefore not an abuse of discretion.

Finally, appellant argues that the district court abused its discretion in failing to designate him as the overall prevailing party in the suit for purposes of cost allocation. See Order Re: Motion to Determine Prevailing Party and Motion for Allowance of Attorney's Fees, AER at 179-180. We review for abuse of discretion the district court's award of costs. Airflex Corp. v. Underwriters Laboratories, 914 F.2d 175, 176 (9th Cir. 1990) (per curiam).

We hold that the district court did not abuse its discretion in refusing to award costs to appellant. The roughly equal outcome of the suit, in which the jury found in favor of appellee on its original complaint, and in favor of appellant on his counterclaim, and awarded zero damages to each party, militates against a finding that the district court abused its discretion in refusing to shift all costs onto one of the parties. Even if appellant had been the prevailing party, the district court would still have the discretion to allocate costs based on other factors. See 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, p 54.70, at 54-329 (1990) (" [S]ince, apart from an express provision in a statute or rule, the allowance of costs to the prevailing party is not an inexorable principle and the court in its discretion can direct otherwise, when the court exercises its discretion the identification of the prevailing party may become so unimportant as to be almost immaterial.") (footnotes omitted). In this case, we hold that the jury's verdicts on liability and damages were clearly sufficient for us to hold that the district court did not abuse its discretion in refusing to designate appellant as the prevailing party and shift all costs onto appellee.

AFFIRMED.