Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 277 (9th Cir. 1991)

James H. WILLIAMS, Plaintiff-Appellant,v.VISA USA, INC., Defendant,andAmfac Hotels & Resorts, Inc., Defendant-Appellee.

No. 88-6755.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


MEMORANDUM** 

James H. Williams appeals the district court's denial of his motion for a new trial following a jury verdict in favor of defendant, Amfac Hotels & Resorts, Inc. ("Amfac"), in Williams' action for assault and battery. Williams contends that the district court erred by denying him a new trial because Amfac's attorney's improper comments during closing argument were so prejudicial that they affected the jury's verdict. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review the district court's denial of a motion for new trial for abuse of discretion. Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir. 1990).

"To warrant reversal on grounds of attorney misconduct, the 'flavor of misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and prejudice in reaching its verdict.' " Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283, 1286 (9th Cir. 1984) (quoting Standard Oil of Cal. v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)). "A new trial is warranted only if counsel's misconduct affected the verdict." Mateyko, 924 F.2d at 828 (citing Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir. 1985)). The district court is in a far better position than this court to gauge the prejudicial effect of improper comments. Kehr, 736 F.2d at 1286.

Here, the offending remarks were made only during closing argument and there is no indication that they "permeated" the entire trial. See id. Thus, because there is no evidence that the remarks were so prejudicial that they affected the verdict, the district court did not abuse its discretion by denying Williams' motion for a new trial. See Mateyko, 924 F.2d at 828; Chalmers, 762 F.2d at 761; Kehr, 736 F.2d at 1286.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Appellee's request for oral argument 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