Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1062 (9th Cir. 1991)

Neil GOLDBERG aka Gandharva, Plaintiff-Appellant,andJan Thomas Goldberg aka Eternity and Mobita, Neil Goldbergand Jan Thomas Goldberg dba Twin Flame Music, Plaintiffs,v.Dolly PARTON, Jane Fonda, Tom Hayden, Dolly Parton dbaVelvet Apple Music, Fox Fanfare Music Inc., Warner-TamerlanePublishing Corp., IPC Films, Inc. Twentieth-Century Fox FilmCorp. Twentieth-Century Fox Records Corp., RCA Corp. andAmerican Broadcasting Co., Inc., Defendants-Appellees.

No. 86-5733.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 1991.Decided Jan. 31, 1991.

Before ALARCON, WILLIAM A. NORRIS and WIGGINS, Circuit Judges.


Plaintiff Neil Goldberg appeals from the judgment in favor of the defendants in a suit for copyright infringement.1  Goldberg asserts that a new trial is necessary to remedy prejudicial errors resulting from the district court's refusal to give certain proposed jury instructions. We affirm because Goldberg waived any claim of error in the instructions by failing to object in the district court.

Goldberg seeks reversal on the grounds that the trial court rejected their proposed jury instructions on the law relating to unconscious copying (plaintiff's proposed instruction No. 44), and proof of access through a showing of striking similarity (plaintiff's proposed instructions Nos. 49 and 50).

Rule 51 of the Federal Rules of Civil Procedure states:

No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.

Fed. R. Civ. P. 51 (emphasis added).

We have previously stated that the rationale for the rule is "to prevent unnecessary new trials caused by errors in instructions that the district court could have corrected if they had been brought to its attention at the proper time." Robinson v. Heilman, 563 F.2d 1304, 1306 (9th Cir. 1977) (citations omitted). The Rule specifies that the objecting party must state "distinctly the matter objected to and the grounds of the objection." Fed. R. Civ. P. 51. "The grounds must be stated with sufficient clarity that the trial judge may see what they are and follow them if well taken." 9 C. Wright & A. Miller, Federal Practice and Procedure, Civil Sec. 2554 at 643 (1971). "The court should not be required to piece together objections to the instructions from cases cited in trial briefs and discussions with counsel prior to the time the instructions are finally formulated." Id. Sec. 2553 at 638. " [I]f the court has failed to give requested instructions, an objection should be made and it should state grounds rather than merely object generally to the refusal to give any instructions that were not given." Id. Sec. 2554 at 646.

The record reflects that outside the presence of the jury the district court advised the parties as to which of the proposed jury instructions it intended to give. After the court read the lengthy list of approved and disapproved instructions by number, the court asked for "comments and objections." Goldberg's counsel, Steinhart, requested a recess to review the list.

MR. STEINHART: I think it would be productive, if it please the Court, if you could take a recess so I could review what you haven't given of mine and maybe picked up your giving of theirs which covers the subject.

For instance, you didn't give mine [instruction] on unconscious copy. [sic] I don't know whether they had one on unconscious copying, without reading the numbers and seeing what you were giving of theirs. I definitely would have an objection of going to the jury without an instruction that unconscious, unintentional copying by the alleged copier is just as actionable as conscious intentional.

THE COURT: Anything else?

MR. STEINHART: Could we have a brief recess so I can review it, then I'll be more efficient at what I'm going to say.



* * *

THE COURT: All right. We'll take a brief recess so that both sides will look at the lists then we'll complete the matter.

After a ten minute recess the parties returned and the court asked whether "there are any matters that we need to take up?" Id. Steinhart requested "five or ten more minutes to go through it. I'm not done going through all of it, frankly." The district court replied:

THE COURT: Well, you can make whatever objections you want. With regard to the one that you mentioned previously, that's one I'm giving.

The court informed counsel that he could utilize the lunch hour to review the instructions, with argument to commence upon the jury's return from lunch in an hour and a half. The following exchange then took place:

MR. STEINHART: Your honor, may I ask--with all due respect, I think that, depending on what the instructions are going to be--

THE COURT: I told you what the instructions are going to be.

MR. STEINHART: Even if I have objections or explanations.

THE COURT: Your objections will be noted for the record.

MR. STEINHART: I see. Okay.

Immediately thereafter, defense counsel proposed an amendment to the instructions to which plaintiffs' counsel stated he had no objection. The district court replied:

THE COURT: Very well. We'll give this instruction as well. And if there are any other objections, as I say, you may note them for the record. And you may do so after argument or, if you feel that in any way affects your argument, you may do so before; otherwise, you may note it for the record either before or at the time after the argument or giving of the instructions themselves.

The parties returned to the courtroom approximately an hour and forty minutes later and discussion continued outside the presence of the jury. The court again inquired whether "there any matters we need to take up prior to the arguments?" After asking a question about the special verdict form, plaintiffs' counsel stated " [t]he only point on the jury instructions I'll bring up, I invite the Court's attention to defendants' No. 19." Plaintiffs' counsel recommended a change to that instruction which the defense consented to. The court stated:

THE COURT: All right. I'll make that change.

MR. STEINHART: Thank you, sir.

Other than that, after reading all the instructions, I think that I understand how you see the law applies to the facts in this case, and I think I can ably argue it.

THE COURT: All right.

After argument and the reading of the instructions to the jury, the district court called counsel to the sidebar.

THE COURT: All right. Are there any comments or objections regarding the instructions? Mr Steinhart?



THE COURT: All right.

It thus appears on the record that the district court solicited the Goldbergs to make any objections they had to the jury instructions at least six times. The only statement on the record concerning the Goldbergs' proposed instruction on unconscious or unintentional copying (plaintiff's proposed instruction No. 44), was a conditional statement that plaintiffs would object if the instruction or one like it was not on the list of instructions to be given. No grounds for the objection were stated. No objections or references were made to the court's rulings on the instructions dealing with striking similarity (plaintiff's proposed instructions Nos. 49 and 50).

Thus, the district court was not only advised that Goldberg believed the court's instructions were inadequate or erroneous, the court was not presented with the arguments if any, that support the giving of an unconscious copying instruction based on the evidence presented in this case. Accordingly, the court was not given the opportunity to correct any alleged error. Pursuant to Rule 51, the failure to state distinctly the grounds for the objections bars the consideration of the merits of the arguments now asserted on appeal.

We have recognized one exception to the requirement of strict compliance with Rule 51. That exception is when it is obvious that in the process of settling the jury instructions the court was made fully aware of the objections of the party and the reasons therefor and further objections would be unavailing. In that limited circumstance, we have not required the pointless formality of a specific objection.

United States ex rel. Redd v. Callahan, 884 F.2d 1180, 1184 (9th Cir. 1989) (emphasis added), cert. denied, 110 S. Ct. 1167 (1990). Goldberg asserts that he fits within this exception.

Goldberg argues that " [t]his case presents a classic question, one which must be dealt with by every trial lawyer. That is: at what point does trial counsel cease incurring the displeasure of the trial judge by making objections which he knows will be overruled?" Appellant's Reply Brief at 3. This contention is not supported by the record. No showing was made that the court was displeased with counsel for making objections. To the contrary, the court gave counsel repeated opportunities to make a record of any objections he had to the instructions it had approved.

Goldberg has not established "that the court was made fully aware of the objections ... and the reasons therefor" or that a properly raised objection would have "been a pointless formality." No reasons were articulated by counsel to support a proposed instruction on unconscious copying. Furthermore, the record reflects that suggested changes to the instructions were adopted by the court.

Because Goldberg failed to object to the district court's ruling on the proposed jury instructions as required by Rule 51 of the Federal Rules of Civil Procedure, the judgment is AFFIRMED. The request for sanctions against Goldberg and his counsel is DENIED.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


While appellant's opening brief identifies Neil and Jan Goldberg and Twin Flame Music as appellants, the Notice of Appeal filed on March 21, 1986 named only Neil Goldberg as an appellant, and was signed soley by Neil Goldberg "In Propria Persona."