*1 876' VENTURA, also known as James
Jesse Janos, Plaintiff-Appellee
G.
Taya KYLE, as Executor of the Estate Kyle, Defendant-
of Chris
Appellant. Organizations; Companies and
33 Media Scholars; First Amendment Center, Amici More Law
Thomas Appellant.
Behalf of
No. 14-3876 Appeals, Court of
United States
Eighth Circuit. 20, 2015
Submitted: October 13, 2016
Filed: June En
Rehearing Rehearing Banc Aug.
Denied 2016. *2 (SEAL) team.1 He authored book
Land Sniper: Autobiography American Military Sniper in the Most Lethal U.S. History (American Sniper). book, In the “celebrity” re- punching described *3 making to as “Scruff Face” who was ferred at a remarks about the SEALs offensive following the funeral of a SEAL gathering in combat. In interviews about the killed book, Face” Kyle revealed “Scruff was Janos, known as Jesse Ven- James better Ventura, tura. who was at the bar but occurred, in fight Kyle denied a sued this diversity action2 under Minnesota law for defamation, unjust and misappropriation, enrichment, Kyle fabricated the alleging in incident. The found favor Ventu- claim, awarding ra on the defamation $500,000 in found in damages, and claim. misappropriation favor on the Serv- advisory equitable in its role as to the ing Levine, DC, Washington, argued, claim, Lee recom- Webber, Borger, Charles F. Philip John approximately mended an award of $1.35 MN, Walker, on Minneapolis, Mary A. million, adopted. which the district court brief, appellant. Kyle court’s denial of appeals the district , motion for as a matter of law Olsen, his Bradley argued, David David Anderson, Olsen, jurisdiction Bradley Having pursu- J. John or a new trial. Court Bisanz, Jr., Benjamin Ham- J. § Norbert to reverse and ant 28 U.S.C. we MN, brief, ap- borg, Minneapolis, remand, part. in pelle. 1. BACKGROUND York, NY, Abrams, Leonard
Floyd New Mersino, Niehoff, Rich- M. Erin Elizabeth alleged underlying altercation this Arbor, MI, Ann Paul Ma- Thompson, ard McP’s, action occurred at a bar Corona- Detroit, MI, Mersino, Buckley, Susan thew do, California, Kyle and some where Mikhail, York, NY, amicus Merriam New gathered friends were October 2006 af- appellant. on behalf of ter the funeral of a fellow SEAL. Accord- ing Kyle, RILEY, Judge, SMITH Before Chief his mouth running Scruff started about SHEPHERD, Judges. Circuit everything anything he the war and RILEY, Judge. Chief Bush could connect it. President was there an asshole. We were over death, Kyle Chris was a sni- Before his Sea, Navy [Iraq] up Air and because Bush wanted to show per for a United States 1332(a)(1). § Taya 28 U.S.C. Kyle killed in 2013 and his wife 2. See 1. estate, Kyle, his was substituted executor We continue to refer to the as the defendant. "Kyle.” defendant in this case as doing wrong his father. We were on Ventura’s claims of misappropriation thing, killing men and women and chil- enrichment, unjust emphasizing he murdering.... dren and “provided had the Court with case after Scruff he said hates America. case, all rejecting types these of ... claims expressive the context of works.” The Kyle approached Scruff and him asked district court denied the few,” “cool it.” “You motion. deserve to lose a “calm,” replied. Kyle Scruff but Scruff At discovery, the close of Kyle moved swung Kyle at him. him “laid out. Tables for summary judgment on all claims. The happened. flew. Stuff Scruff Face ended district court concluded was not enti- up [Kyle] on the floor. left.” summary tled to judgment on Ventura’s 4, 2012, January day On after his defamation claim because “Ventura has released, Kyle book was was interviewed *4 proffered sufficient evidence upon which a program on a radio pro- and the television Kyle’s could conclude that statements gram O’Reilly “The promote Factor” to materially [in wére book] false.” The interview, During the book. the radio one district court noted conflicting there were of the said a hosts there was caller on the eyewitness accounts of alleged inci- line saying Kyle who was “in a was bar dent, photos of and Ventura from the fol- [Ventura],” fight with Jesse political a lowing day showed injuries. no visible The commentator formerly who served district court rejected also Kyle’s re- Governor of Navy Minnesota and hearsed motion as to misappropriation special true, forces. asked if When this was claims. Kyle confirmed it During was. the televi- day, sion interview later that host Bill The case was tried in summer O’Reilly Kyle, say you asked “[Y]ou eight years almost after alleged alter- knocked Jesse to the Ventura floor with a cation. Ventura testified he had a normal Now, punch. you name, don’t mention his evening without physical verbal or al- everybody but knows who that is.... tercation. Three who were with him people happened?” Kyle again [T]hat confirmed evening they that also testified witnessed interviews, he “knocked him down.” In the However, no people these altercation. were Kyle similarly described the events not in vicinity Ventura’s immediate for the book, way he did in the adding that after evening, entire and one testified was he Ventura, punched he “I took off running, hearing. hard of because the cops already were outside.... [C]ops they were watching, saw the whole Ventura also Kyle introduced evidence thing happen.” told story. different versions of the For book,
Kyle’s example, in the publicity Kyle alleged editor described the re- Ventura sulting Kyle’s from radio interview as took swing, the first but he did not men- email, “priceless” in an Kyle’s publicist tion Kyle that his interviews. mentioned agreed publicity response “HOT, was interviews, book, in the but not the that hot, hot!” The book was all accounts a police saw the whole incident. Ventura 2014, Kyle’s success. In editor testified 1.5 produced a police letter from the Coronado copies million had been sold. department stating police there no mentioning Kyle’s record or Ventura’s interviews, Kyle After the Ventura sued photos name. Ventura introduced of him- defamation, misappropriation, and un- graduation day self at a event the after the just grounds Kyle enrichment on the alleged inju- fabricated the incident that no obvious entire interaction with Ven- show Kyle summary ries, tura. moved for despite Kyle having “rumor written book,” the success of the Rosen- gradua- pact on up at the it he showed has BUD/S insignificant replied very it was “a eye.” blum tion with black suc- impact did not the book’s part” and Kyle’s video- part of watched editor,' Hubbard, testi- Kyle’s cess. Peter version recounting his deposition recorded story not rele- the “Scruff Face” fied Kyle present- evening’s also of the events. to enter into a book vant to his decision bar who were at the ed witnesses several he Kyle. with Hubbard indicated contract they either evening, who testified that sub- suggested incorporating never com- alleged make the heard Ventura HarperCollins’s marketing chapter into ments, type physical some witnessed for the book. He characterized campaign altercation, or All of witnesses both. having Ventura” as or friends the “mention Jesse current or former SEALs were effect on the family “negligible” of SEALs. success book. they At witnesses testified least seven remarks, and
overheard some Ventura’s impeach the sought accounts of what generally similar offered by questioning witnesses HarperCollins seven witnesses tes- said. At least Ventura HarperCollins’s in- them about (or an unidentified they saw tified coverage HarperCollins surance to show man, Kyle) for those who did know “a financial interest in the out- had direct Ventura; on the saw Ventura punch litigation” and the witnesses *5 come of th[e] getting up ground; off the ground or Kyle. in favor of See Fed. R. were biased “yelling.” a “commotion” or Witness heard (permitting questioning about Evid. and location of the timing estimates of the coverage insurance show witness’s not consistent. incident were bias). Kyle’s objected to this testi- counsel cross-examination, questioned on
When introduction, but the mony prior to its made previously he had Ventura agreed court it. See Fed. R. Evid. district allowed as, comments such “More controversial admissible (providing otherwise Army run seeing and more we’re probative “if may evidence be excluded its accompany- extremists and an Christianist by a dan- substantially outweighed value is ing of what can be described as cadre ger prejudice”). of ... unfair neo-Nazis.” Rosenblum, asked Ventura’s counsel HarperCollins, Two witnesses from you legal that the fees for aware “[A]re Sniper’s publisher, American also testified attorneys being paid ... the estate’s are Rosenblum, Sharyn HarperCol- at trial. company HarperCol- insurance for the book, Kyle’s for testified publicist lins’s you Harper- lins?” and “Are aware the general process preparing the of about in has a direct financial interest Collins and said she did not publication book for they litigation the outcome of this because Face” was when she know who “Scruff providing are the insurance?” Rosenblum book, and did manuscript read the HarperCollins’s in- knowledge denied not ask. testified she did not see She counsel asked policy. surance as relevant subchapter “Scruff Face” any if knew about Hubbard he campaign for the book but publicity her Kyle’s Harper- in contract with provisions to focus on “the themes of the she wanted Kyle’s not. counsel Collins. He said he did war, service, military country, love of [and] inquiries. after both moved for a mistrial country.” patriotism to servé one’s She denied both motions. The district court name “surprise[d]” wás when Ventura’s Then, during closing arguments, Ventu- Kyle’s interview. asked up came When opined: im- story ra’s ha[d] whether “the Ventura Sharyn that she 8-2 on day Rosenblum testified verdict the fifth full of delibera- company’s not know her jury did insurer is tions. The found for Ventura on the claim, you on the hook that Jesse Ven- defamation advisory made an rec- if find tura was Both her and Peter ommendation in Ventura’s favor on the defamed. claim, they Hubbard also testified that do not and found for know that company’s Kyle their insurer was on the misappropriation claim. The paying $500,000 for the jury damages defense of this lawsuit. awarded for def- disinterested, they But are not the unbi- amation and damages ap- recommended they put ased witnesses were in front of proximately million unjust enrich- $1.35 you you to believe. It’s hard to be- ment. The district court adopted jury’s they lieve that didn’t know unjust-enrich- about the recommendations as to the policy right because it’s ment claim and accompanying damages Kyle’s publishing Paragraph contract. award.
6.B.3. of Exhibit Chris is an Among assigned other errors we need additional insured un- for defamation reach, Kyle not judgment moved for as a publisher’s policy. der the trial, matter of law or a contending new object counsel did front of the incorrectly instructed about jury, again but moved for a mistrial due to falsity defamation, element of the actu- the insurance references once the requirement applicable al-malice in public cases, excused. The district court again figure denied defamation and the applicable the motion. counsel did not ask for a burdens of proof.3 Kyle argued unjust- instruction curative and the district court enrichment violated Minnesota give did not one. law and the First Amendment and Ventu- ra prove did not the amount he was en- jury struggled to reach a verdict. At Finally, sought riched. he trial new noon on full day the fourth of delibera- grounds jury’s that the “awards were tions, jury reported they could not *6 by tainted prejudicial the admission of tes- reach a unanimous decision. The district timony argument regarding [Kyle’s] and court jury instructed the to continue delib- insurance.” The district court denied erating, yet they could not reach a verdict Kyle’s Kyle appeals. motion. day. that morning The next the parties decision, permitting consented to a 9-1 but We vacate the defamation and jury ultimately to no avail. The claim damages reached award and remand that for Face) jury ‘story’ 3. The instruction on the defa- sub-chapter elements of Out Scruff is the (‘he America,' mation described the basis for the defamation or the 'we[’]re 3 lines? hates claim as follows: "Plaintiff Jesse Ventura killing &men women and children and mur- Kyle few').” claims that Chris defamed him assert- dering,’ Kyle's 'deserve to lose a Over " Sniper, ing in American as well as on televi- objection, responded, the district court 'The radio, sion and Mr. that Ventura said ‘he story,' [the instructions] as used in refers to America,’ killing hates the SEALs 'were men Kyle the statements Mr. made about Mr. Ven- murdering,’ and women and children and and Punching tura in the Out Scruff Face sub- ” jury the SEALs ‘deserve to lose a few.’ The radio, chapter and on television and which was then instructed that Ventura was re- your the three in include statements identified quired prove "story” "defamatory” was question. You are instructed to each consider "materially Kyle "published and false” and story Kyle ... element as whole.” false, story knowing believing it was it argues contradictory these instructions were false, having or serious doubts about its and leave unclear the basis for the defamation truth.” assigned judgment, but we do not reach this deliberations, asked, During jury we “when error because conclude a new trial is referring story (Punching grounds. to Mr. Ventura’s warranted other may have been inevit- unjust- reverse the mandated insurance further a new trial. We able, vacate the ac- judgment, prejudicial and it was error for counsel enrichment damages award.4 companying inject the trial the idea City for the into which would that Kiewit had insurance II. DISCUSSION any damages the defendant would be cover argument obliged pay.”). Counsel’s A. Defamation Claim improper prejudicial, have been and would may grant a new The district court jury already if was aware of an even jury issues “after a trial on all or some policy. pre- id. The record See trial, for which a new trial any for reason to this contained no evidence sented in at granted an action has heretofore been covering establishing policy an insurance court; nonju- ... after a in law federal ar- Kyle, which makes Ventura’s counsel’s trial, a rehear ry any reason for which prejudicial. gument improper more and in granted been a suit ing has heretofore court.” Fed. R. Civ. P. equity in in federal next consider the insurance testimo- We (B). 59(a)(1)(A), review the district We HarperCollins employ- from the ny elicited “for a ‘clear of a new trial court’s denial trial, ees. At Ventura’s counsel asked ” Behlmann v. Centu abuse discretion.’ she aware Rosenblum whether ry Co., (8th Cir. Sur. by the attorneys “being paid were insur- Burris v. Gulf Underwriters (quoting company HarperCollins” and ance Co., 2015)). F.3d Ins. a direct financial inter- “HarperCollins has entitled to a new trial Kyle argues he is litigation be- est the outcome this clearly the district court abused because they providing cause are insurance.” by permitting Ventura to ask its discretion Ventura’s counsel asked Hubbard whether put prejudicial information questions provision “aware of he was to invoke insur and before Kyle]” [HarperCollins’s] contract [with argument. closing ance in inquired “you obtain insurance cover- Initially, reject we .Ventura’s asser may get age the case when an author any objection to the in tion waived defamation, correct?” sued for libel or testimony argument because surance questions assumed facts never in These object to the admission of his he did not policy purchased evidence—an states, “Au which publishing agreement, Kyle, by HarperCollins covered thor named as an additional insured will be Kyle’s attorneys paid were the insurer. *7 any policy of insurance under the terms any Both witnesses denied awareness of may carry which covers the Publisher objected policy. Kyle’s insurance counsel to added). In the (Emphasis cost of claims.” questioning this before Ventura’s counsel’s jury analyzed lengthy pub the event the cross-examination, object to at the tried and learned lishing print contract’s fine time, for a mistrial after each and moved insurance, Kyle may have had this evi permit- testified. The district court witness not permit dence alone would cross-examination, by ted this which Ven- argue to that an insur ostensibly to sought tura’s counsel show Kyle actually policy including ance existed HarperCollins the witnesses were biased See, e.g., is on the hook.” and the “insurer City Kyle HarperCollins in favor of because Peter Kiewit Sons’ of Cleveland v. 1980) (6th by Co., were covered the same insur- 624 F.2d 758 Cir. (“[WJhile contractually- policy. ance mention of the assign- Kyle's other ments of error. 4. We need not decide dentists, Rule 411 of the Federal Rules of Evi- expert “the witness had co- trust,” prohibits payments dence the introduction of insur- founded the of claims prove ance evidence to “could result in in person premiums whether a a rise members,” wrongfully permits charged acted it to all but for other and “all mem bers purposes, required such as a would be to absorb a proving witness’s bias. share” any judgment example, permitted exceeding- For we have the amount in the use of trust); (“The the cf. Fed. R. Evid. evidence of insurance to show bias a where may court exclude relevant evidence if employed by defense its witness de- See, e.g., probative substantially value is outweighed company. fendant’s insurance v, Chleborad, danger a of ... unfair prejudice.”). Charter curiam); (per see also 23 Here, there is no evidence Rosen- Wright Charles Alan & Kenneth Gra-W. blum any and Hubbard had economic tie ham, Jr., Federal Practice and Procedure or “substantial connection” to HarperCol- (1st 1980) (“The § 5367 ed. paradigm case lins’s insurance They carrier. were not cur for use of evidence of insurance to show rently formerly or employed by the insur in bias is the cross-examination of a claims company, ance seeking employment with doctor.”). adjuster company or insurance company, paid for their tes timony by the insurance may company, Other “economic or hold tie[s]” “influence ers of stock in the insurance company. the witness to favor the See compa- supra Graham, Wright § & ny,” including “ownership of 5367. There stock was no risk Rosenblum company, promise or a and Hubbard employment, or might personally contribute to promise pay directly pay a the witness supra any judgment ment of testimony.” Graham, favor of Wright his & Ventura. (footnotes omitted). § Ventura even failed to a judgment show his adversely favor could affect Rosen- majority jurisdictions A addressing blum’s and employment Hubbard’s with applied this issue have a “substantial HarperCollins. analysis connection” in order to balance the probative potential preju- value and As a evidentiary matter of basic founda- dice .... The substantial connection tion, Ventura never established direct analysis looks to whether a witness has evidence or reasonable inference that degree “a sufficient of connection with Rosenblum and Hubbard even knew about liability justify insurance carrier to coverage possible insur- allowing-proof of this as a relationship ance payment. Rosenblum and Hubbard means of attacking credibility personal knowledge had no topic rejected witness.” These courts have qualified testify and were not on the “commonality (“A mere ap- subject. of insurance” See Fed. R. Evid. 602 witness proach, holding may testify the likelihood of to a matter if evidence is bias is so attenuated that the risk of introduced sufficient support finding prejudice substantially outweighs personal that the witness has knowledge of probative prove personal value. the matter. Evidence to *8 knowledge may consist of the witness’s Shainholtz, (Colo. 422, Bonser v. 3 P.3d 425 testimony.”). own 2000) Bryant, (quoting Otwell v. 497 So.2d (Ala. 1986)) 111, 114 (finding a “substantial argued counsel in closing, Ventura’s “It’s expert connection” between an witness and hard that to believe and Hub- [Rosenblum the defendant’s company insurance where didn’t know poli- bard] about insurance expert defendant and the witness cy right Kyle’s were because it’s publishing both members of a small insurance trust contract.” The one-line mention of insur-
884 not suggests Kyle’s counsel did lengthy small-print in the Ventura
anee contained closing.” are “timely object[] during We acknowledges HarperCol- merely contract motion for a not convinced counsel’s carry” (Emphasis insurance. “may lins as excused mistrial as soon was added). contract does not publishing Lange necessarily untimely. was See actually HarperCollins purchased establish Schultz, (8th 1980) 122, Cir. insurance, much that Rosenblum and less (“ objec must either make an ‘[CJounsel knew it. Hubbard about . .. for a at the time tion or move mistrial It to envision how Rosenblum is difficult misconduct, in alleged or where it and Hubbard could have been biased closing a' counsel ... argument, volves by policy influenced insurance even objection, make his take his ex should[] they if they were unaware. Even which or ask for remedial action at the ception, policy, had been aware of a “connec- thereof and before the case is sub close carrier they tion” had to the insurance was ” jury.’ (quoting Thomson v. mitted a risk of far too remote to create bias Boles, F.2d 495-96 outweigh the strong enough to substantial (“[N]o exception closing] remarks [the pointed counsel’s prejudice Ventura’s during either was taken the defendant unproven references to in- repeated and argument (emphasis or at its close.” Fed. Evid. 408. surance.5 See R. added)))). However, object Ventura did not consider coun We now Ventura’s at trial to the timeliness of motion during closing argument sel’s statement closing made and for mistrial after instruc HarperCollins’s “insurer is tions. The district court likewise did not Ventura was you hook Jesse question the motion’s timeliness and in if find “Kyle and is an in additional merits, gen ruled on the motion’s stead defamed” publisher’s sured under the topic admissibility eral on insurance raised defamation added). policy.” (Emphasis before, As of trial. during, and at the end already, insur argument noted what insurer? What timeliness now is itself Ventura’s untimely.7 policy?6 ance testimony Taya Kyle policy accurate —the 5.The district court also concluded claim, “opened [questions unjust the door to about insur- covers the defamation not testifying misappropriation, impact about the financial enrichment or and thus ance] Sniper risk, litigation proceeds of this and her use of the book’s from American are at "poor mouthing,” confusing Taya proceeds,” so-called Weiss she testified.” It also is how Suisse, "opened Kyle’s purported "poor-mouthing” La v. La Vie, Société D'Assurances Sur (S.D.N.Y. 2003). F.Supp.2d the door” to the cross-examination of other disagree. HarperCollins’s respectfully We witnesses about policy, particularly witnesses so disconnected Taya Kyle only testified on redirect exami- knowledge personal with no on the sub- proceeds nation about her use of the book's ject. Cf. Fed. R. Evid. 602. counsel after Ventura's had cross-examined proceeds her how much of the she had about review, unsupported, 6. From our these im- donated, insinuating insufficiently she was proper, prejudicial statements were not generous. Kyle's attempted to rebut argument, but were stra- heat of the moment by asking Taya Kyle this insinuation whether tegic and calculated. any impact upon you what "this lawsuit had proceeds have done with the from American Sniper?” pay you be able to 7. The dissent concludes the district court did “Would denying Kyle's for mistrial Plaintiff?” We also note the district court cor- not err in motion rectly rejected "poor-mouthing” retire- ar- because the motion made "after the before, day untimely.” gument only explaining in an ment of the Post at 890. order, "Taya Kyle's testimony open deny the motion did not The district court did untimely. untimely is her because it was What is the door to evidence of insurance because
885
(5th
1950)
deciding
35,
curiam)
grant
When
whether to
F.2d
36
(per
Cir.
trial due to improper
(observing
a new
remarks
references to insurance were
(1)
counsel,
“continuously
we consider whether:
“the re
brought”
jury’s
at-
tention,
question
marks in
“were ... minor
which was a “gravely prejudicial
aberra
(2)
trial).
error”
passing’
necessitating
tions made in
the
a new
district
“ ‘specific
court took
curative action’
Second,
jury
did not receive a specif-
“
(3)
damage
‘the size of the
award ...
instruction,
ic curative
general
suggests]
that counsel’s comment had a
“arguments
reminder that
of counsel are
”
Primebank,
prejudicial effect.’ Gilster v.
Gilster,
not evidence.”
Finally, the risk 1993) Verschoor, 100, (“Collectively, ... Halladay [the errors] 112 381 F.2d Cir. v. (8th picture a skewed 1967), presented it was “utter such explained Cir. we just or ... a unreliable and must be a fair trial that the verdict is repugnant ly Co., aside.”); “the jury to hear that Malek v. Fed. Ins. 994 set verdict” for 1993) (2d 49, taken care of (reversing judg ... will be damages sued for F.2d 55 Cir. company.” ... We ob “[a]lthough each of the erro by an insurance ment because universally ..., almost standing has been evidentiary rulings served that “it neous of such evidence con receipt alone, may justify held that be insufficient to rever to re error sufficient prejudicial sal, say stitutes cannot the cumulative we Infinity Id.; harmless”). cf. Transit Cas. Co. v. quire reversal.” But see SEC v. effect is Co., 1011, rp. Co., (3d 387 F.2d Ins. 180, Transamerica 212 F.3d 196 Cir. G 1967) (“The (8th [the fact that Cir. 1013-14 (rejecting cumulative error doctrine and stood bear plaintiff] cases). was reinsured remand the defamation for civil We a fact that loss is only percent [its] five trial.8 claim for a new jury, impress obviously would Unjust-Enrichment B. Claim return a defendant’s lead it to
might well interjection of the [t]he verdict ... [and] judg- Kyle argues prejudicial er of reinsurance was issue ment is inconsistent with Minnesota law ror.”). prohibited by be the First and would comport if Amendment even it did with must con- precedent, of this we light In Kyle law. also asserts “Ventura Minnesota remarks, closing counsel’s clude Ventura’s Kyle presented competent no evidence improper with the cross- in combination Kyle unjustly agree enriched.” We about of two witnesses examination law, so enriched as a matter of Minnesota Kyle from coverage, prevented we do not consider constitutional The district court receiving a fair trial. court’s arguments or review the district denying its discretion a clearly abused See, e.g., Frymire-Brinati findings.9 factual trial. new agree district court’s complications that can arise We cannot with the We note the 8. public- improperly attempted general Kyle a verdict form is used in when conclusion that See, e.g., figure cases. Greenbelt defamation in his motion for "advance new theories” Bresler, 6, 11, Co-op. 398 U.S. Pub. Ass'n v. judgment as a matter of law because he wait- 1537, (1970); L.Ed.2d 6 West v. 90 S.Ct. 26 equitable argue ed until after the trial to Operations, Inc., Fed.Appx. 120 Media Gen. unjust enrichment are not remedies such 601, 602, (6th 2005) (unpublished) Cir. adequate legal available when remedies exist. cases). (collecting Co., 791 F.2d Fontenot v. Mesa Petroleum 1986). 1207, (5th Kyle raised this Cir. Kyle concluded forfeited 9. The district coiirt point brief. He also raised several in his trial unjust-enrichment judg- any challenge to the why unjust-enrich- arguments for judg- Kyle ment because filed motion a matter of law in ment claim failed as both the district court ment as a matter of law with summary judgment, his motions for his trial 50, Federal Rule of Civil Procedure under brief, reply trial brief. See Sherman v. and his jury, governs tried to a not Fed- which issues Fireworks, Inc., 715-16 Winco gov- which eral Rule of Civil Procedure 2008) (finding "lengthy footnote” tried without a or with erns actions plaintiff's opposition brief in that, advisory jury. district court stated to amend its answer was defendant’s motion Kyle's treat motion as a Rule even if it were to appeal”). On "sufficient to avoid waiver on motion, applies to factual Rule 52 case, Kyle in this we conclude has argu- the record findings, legal whereas raised preserved the issue. ments. *11 law, prevail Under Minnesota “to could not award additional damages for unjust enrichment, a claim of a claimant unjust enrichment if it found that [Ven- implied-in-law quasi- must establish an or “damages tura’s] award for defamation contract which the defendant received ... provide[d] him with an adequate unjustly benefit of value that enriched the remedy”.... [Ventura’s] defamation defendant in a illegal manner is or claim provided him with no means to unlawful.” Caldas v. Affordable Granite & disgorgement obtain the [Kyle’s] of ill- Stone, Inc., (Minn. 826, 820 N.W.2d gotten gains-[Ventura’s] legal reme- 2012). agree with Kyle We that “Ventura dy was inadequate fully ameliorate cannot maintain a unjust claim for enrich [Kyle’s] conduct, wrongful and the defa- ment because he had no con pre-existing mation claim did not preclude the un- quasi-contractual tractual or relationship just-enrichment claim as a matter of (“We Kyle.” with See id. have limited the law. application unjust enrichment to claims (Fifth insertion in original). premised on implied quasi-contract an between the claimant and the party al This conclusion was erroneous. enriched.”). leged unjustly to be First, whether there is an adequate reme
Although dy law, Ventura is correct at question “[a] law is a not a factual quasi-contract imposed” will be “a where question jury. for the ServiceMaster St. benefit was unknowingly conferred or un Cloud, 544 N.W.2d at jury, 305. The not willingly,” reject we Ventura’s assertion distinction, aware of the legal/equitable that Ventura conferred a “benefit” on likely would have interpreted “adequate” by Ventura’s mere existence as a colorful to mean “enough money.” Even if the ade figure might who inspire people to make quacy of legal remedy proper were a Oz, Inc., up stories about him. Galante v. question for jury, we note the inconsis (Minn. 723, 379 N.W.2d 725-26 App. Ct. tency jury’s in the verdict. The jury deter 1986). unjust-enrichment claim $500,000 mined “fairly would and ade is not allowed Minnesota law. quately” compensate Ventura for
Furthermore, even if Ventura had defamation, then suggested but an award proven the other unjust elements of en of approximately million unjust $1.35 richment, equitable remedy would still enrichment, required which “ not be available because ‘there is an ade opposite—-that find the the defamation ” quate remedy at law public available’ inadequate remedy. award was an figures—money damages for defamation.10 Second, law, aas matter of ade Bame, 721 at (quoting F.3d Service- quate legal remedies were available. Nei Servs., Master of St. Cloud v. GAB Bus. ther the district court nor Ventura Inc., cited (Minn. 1996)). 302, 544 N.W.2d awarding profits case in a defamation The district court concluded Ventura’s le unjust-enrichment an theory, case under gal remedy was inadequate because: suggesting money damages or even are an damages available to on his [Ventura] inadequate remedy public-figure defa defamation claim were limited to those Silvercorp mation case. We find none. Cf. necessary remedy injury to his Mgmt. LLC, reputation.... Metals Inc. v. jury was Anthion No. expressly [T]he 150374/2011, advised—at [Kyle’s] 1231(A), behest—that it 36 Misc.3d WL 10. adequate legal remedy award cannot be was available. Cf. Unit- Bame, 1025, misappropriation based on Ventura's claim ed States v. 1031-32 because, 2013). although prevail, Ventura did (N.Y. III. Aug. CONCLUSION Sup. *12 Ct. at (“[T]he allega- factual (unreported) unjust-enrichment judg- reverse the We unjust Silvercorp’s enrich- supporting tions the defama- ment and vacate remand giving to those are identical ment claim for a new trial. tion merge claim [and to the defamation
rise
claim].”). In
one
into the defamation
SMITH,
concurring in
Judge,
Circuit
issue, a New
addressing the
*12
cases
few
dissenting in
part
part.
and
court observed:
York state trial
litiga-
field of much
Libel has been [a]
majority’s
I
in the
reversal
concur
coun-
England and this
tion in both
supra
See
unjust-enrichment
judgment.
that in none of
try.
significant
...
is
[I]t
However,
major-
with
disagree
Part II.B.
I
such as is
cases has an action
these
and remand the
ity’s decision to vacate
in
been
plaintiff
the
this case
brought
trial be-
judgment for a new
defamation
recognizes this
plaintiff
instituted. The
to insurance in trial
cause of references
undertaking to
are
fact and states: “We
supra
See
testimpny
closing argument.
and
facts never before
prove additional
Part II.A.
suit, namely, that the
in a
pleaded
libel
trial,
subject
eleven-day
In
the
of
an
money by
and received
defendant had
day
arose on the second
follow-
publication.” The
virtue of his libellous
testimony
Taya Kyle (“Taya”)—
of
ing the
bring
to
an action
attempts
of
absence
the
Kyle’s widow.
counsel asked
Ventura’s
one is evidence of
to the instant
similar
admissibility
...
of
court “to address
the
legal profession
the
recognition
the
applicable
that’s
here”
policy
the insurance
that such an action would
and the courts
Taya’s testimony
in
of
“that she’s had
light
the common law.
not lie under
with this
expenses
to
the
associated
pay
Co.,
274,
&
197 Misc.
Hart v. E.P. Dutton
money
the
gives
“that if she
litigation”;
(N.Y.
1949);
871,
Sup.
879
Ct.
93 N.Y.S.2d
able
away
charity,
to
that she wouldn’t be
Co.,
Lorain Journal
also Milkovich v.
see
gave
if she
pay
judgment;
and that
23,
2695,
1,
111 L.Ed.2d
497
110 S.Ct.
U.S.
money away,
may
she
able to
the
be
(1990)
is,
an ac
though it
(“[I]mperfect
1
litiga-
her children as a result of this
feed
damages
only hope
tion for
is the
that
argued
counsel
courts
tion.” Ventura’s
to a
gives
or redress the law
vindication
found that this
addressing this issue “have
falsely
reputation has been
dis
man whose
policy
is an instance where
added) (quoting Ro
(emphasis
honored.”
should,
fact,
to counteract
be admitted
Baer,
75, 93, 86 S.Ct.
senblatt v.
383 U.S.
testimony
clearly inaccurate.” Ven-
(1966) (Stewart, J.,
that is
669,
On the seventh the court insurance here.” The court overruled argument jury’s heard outside of the pres- Kyle’s objection counsel’s permitted concerning admissibility ence of insur- inquiry, although explained it that the again ance. argued Ventura’s inquiry would not “be lengthy or in detail.” Taya permitted “’plead should not be Thereafter, Ventura’s counsel asked poverty if an insurance company going is Rosenblum whether the witness was But pick up the tab.’” Ventura’s counsel “aware that legal fees for the estate’s policy conceded that the insurance covered attorneys ... being paid by are the insur- claim, only the misap- defamation not the ance company HarperCollins.” Rosen- propriation claims. blum answered no. Ventura’s counsel then order, In a written the district court de- asked whether Rosenblum was “aware nied motion to question Taya that HarperCollins has a direct financial regarding policy. the insurance The court interest litigation outcome this “Taya Kyle’s concluded that testimony did *13 they because are providing the insurance.” not open the door to evidence of insurance again Rosenblum During answered no. a testimony because her was accurate —the conference, sidebar Kyle’s counsel moved policy insurance covers the defama- for a mistrial based on the “introduction of claim, unjust tion misap- enrichment or the testimony.” insurance The district propriation, proceeds and thus from Amer- court denied the motion. risk, Sniper ican are at as she testified.” Undaunted, day, the next subsequently Ventura’s counsel asked acknowledged counsel the ruling Hubbard, court’s “you whether obtain insurance proof but made an offer of preserve to the coverage in the case when an author may appellate issue for review. Ventura’s coun- get sued for libel or defamation.” Hubbard proceeded attempt introduce, sel to as responded, “I don’t know about that.” part proof, of that offer of the insurance Kyle’s objected counsel based on rele- policy. matter,” “And to that related Ven- vance, and the court objec- overruled the tura’s permission counsel asked the court’s tion. inquired Ventura’s counsel then “inquire [pursuant to Rule as to 411] any whether the -witness was “aware of the existence of insurance” with Rosen- provisions [Kyle’s in publishing] Hubbard, HarperCollins blum and repre- contract.” Kyle’s again objected counsel sentatives, because of those witnesses’ relevance, based on and the court again purported “direct financial interests in this objection. overruled the an- Hubbard litigation” representatives of in- swered, “I’m not aware.” party. again sured The court rul- reserved trial, final day during closing On the ing on the issue. When the court raised arguments, briefly high- Ventura’s counsel day, Kyle’s the issue later in the counsel lighted11 ig- Rosenblum’s and Hubbard’s reiterated that the witnesses were “not provision Kyle’s norance of an in by any coverage affected all” at Thereafter, publishing contract. the court that “if HarperCollins and wit- th[ese] orally jury. gener- instructed the One of its defendants, were direct the intro- nesses] objec- al “[questions, instructions was that regarding duction of evidence insur- tions, statements, arguments of law- just ance would be as off limits as it is in against Kyle. yers It are not evidence the case.” The completely Mrs. would be inappropriate to delve into question “|j]ury retired at 11:59 a.m.” After dis- permitted closing argument approximately 11. The district court each side an sel’s covers closing arguments. pages transcript. hour for coun- Ventura's a matters, objection or ... move for mis- the make an routine couple a pensing with misconduct, anything alleged there was trial at the time of the whether court asked point, cover. At that closing argument, it else that needed it involves a or where for a mistrial based moved objection, make his counsel ... should[ ] references to insur- counsel’s on Ventura’s or ask for remedial exception, take his argument. The district closing ance his at the close thereof action before ” for mistrial. Court the motion court denied jury.’ 627 F.2d at submitted to the case is adjourned p.m. at 12:02 added) Thomson, (quoting (emphasis (“[N]o record, exception to [the I first conclude F.2d at 495-96 on the Based deny- not err district court did was taken defen- closing] that the remarks mo- mistrial. Kyle’s motion for ing argument or at its during either dant after the retirement tion for mistrial close.”)). untimely.
jury was Kyle’s counsel record shows that of a motion reviewing the denial “When make his motion for mistrial “be- failed to 59(a), Fed. R. Civ. P. trial under for new jury.” to the fore the case submitted [was] district deference to the give great we Here, clearly record at 127. See id. not reverse ruling and will court’s gave that the court oral instructions shows abuse of discretion.” absence of clear that, charge, after that Davis, 1138-39 Brown v. Thus, the “D’]ury retired at 11:59 a.m.” 2016) (citation omitted). willWe jury” already “submitted to the case was denial of a mo- the district court’s reverse *14 moved at 11:59 a.m. before “only prevent to mis- tion for new trial improper closing based on for a mistrial Behlmann, justice.” 794 F.3d carriage of reason, I For that conclude argument. omitted). citation (quotation at 963 objection Lange, made. timely no was See Likewise, trial not disturb a we “will at 127.12 627 F.2d a motion for mistrial ab- court’s denial of Second, majority the agree I do with of discre- showing of abuse sent a clear permitting erred in that the district court 606, Shauers, 721 F.3d Warger tion.” v. questions Harper- to counsel’s (8th 2013) (quotation and citation 609 Cir. regarding insurance Collins’s witnesses omitted). Here, denial the district court’s 411. contains no under Rule The record of motion was not abuse of the mistrial that “Rosenblum and Hubbard evidence discretion. con- any had economic tie or ’substantial majority are “[w]e concludes carri- HarperCollins’s nection’ for a Kyle’s counsel’s motion not convinced never established di- er” and “Ventura the was excused mistrial as soon as or inference that rect evidence reasonable (em- Part II.A untimely.” supra See and Hubbard even knew about Rosenblum added) at (citing Lange, 627 F.2d phasis 495-96)). coverage possible Thomson, 123 F.2d at (citing 127 II.A. But the payment.” supra See Part that “’counsel must either Lange provides 1425939, (11th 10100, at *3 Cir. object Kyle's 2016 WL Although did not Ventura 12. 12, untimeliness, 2016) ("Because Apr. the district court motion for mistrial based order, apparent summary not it is may court's denial of issued [the "we affirm district any sup face of the order that the motion reason from the mistrial] the motion for for record, untimely. may af- We nevertheless ported by different from denied as the even if any court’s decision for rea- given by Rob firm the district the reasons the district court.” record, 988, Becker, (8th supported by even if not relied Cir. son the 992 bins v. 794 F.3d (citation omitted); upon by district court.” omit- (quotation and citation see Airlines, Inc., ted)). Emery No. 15- also v. Am.
891 district error does not court’s Taya automatical- was on notice that would be ly necessary. render a new trial “Rule 411 responsible paying part at least does deal with the standard rever- against Kyle. Third, rendered sal,” which is an abuse of discretion. 23 the issue of insurance permeate did not Wright Graham, Charles A. & Kenneth W. trial; instead, the entire in addition to the Jr., Federal Practice and Procedure: Evi- n questions four HarperCollins asked of the (1980) alia, § dence (citing, 5369 inter witnesses, other in- references to Co., Church Ins. v. Trippe Mfg. Co. 250 surance were the two statements in Ven- (2d 2007) (abuse Fed.Appx. 422 Cir. tura’s hour-long counsel’s closing argu-. discretion); King Harrington, v. Fourth, $500,000 ment. in damages on 2006) (abuse 531, of discre- claim defamation is not an excessive tion)). fact, In “some courts found have verdict; as majority concedes, even the minor violations of Rule 411 to be ‘harm- the verdict probably “is not beyond the ” less Id. (citing Nguyen Myers, error.’ rationality.” bounds of supra See Part (Tex. 2013)). Ct. App. S.W.3d (quotations omitted). II.A. and citations interpretation given This is sup- some port a former member of Adviso- reasons, For these I conclude that the ry argued Committee who has that re- district court did not abuse its discretion versals for violations of Rule be denying Kyle a new trial on the defama- limited “to those instances gross tion claim.13 mi[s]conduct which counsel has made a deliberate and apparently successful
attempt prejudice jury.” other In
words, required only reversal is when injection of insurance has resulted
an excessive verdict. (footnotes omitted).
Id. record,
After reviewing the I conclude *15 allowing error in coun- inquire was, sel about at INGRASSIA, Thomas J. most, non-prejudicial. First, harmless and Plaintiff-Appellee Ventura’s counsel asked total of four questions about insurance to two wit- nesses any knowledge who disclaimed SCHAFER, Director, Keith Missouri De subject during about the the course of an partment Health, of Mental In His Second, eleven-day inquiry trial. about Capacity; Vincenz, Official Felix Taya insurance came first testified after Operating Officer, Chief Division responsible that she would be paying Comprehensive Psychiatric Services, judgment least misap- as to the —at Department propriation Missouri of Mental Thus, Health, prevail. Capacity; Ventura to In claims—were His Official Julie majority 13. Because vacates instruct the prove and remands that Ventura had to falsity by for new based convincing defamation trial material clear evi- on the to insurance in references trial testimo- dence and Ventura failed to establish actual remand, ny closing argument, majority likely does malice. On will these issues be caution, arguments again. not address additional raised Out of an abundance of Kyle is advisory opinion entitled to new trial on defama- I decline to issue an questions. tion claim because the district failed to merits of court these