IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

THE ORIGINAL TALK RADIO 

NETWORK, INC., an Oregon 

corporation, TALK RADIO 

NETWORK ENTERPRISES, LLC, 

an Oregon limited liability 

Company, TALK RADIO NETWORK 

ENTERTAINMENT, INC., an 

Oregon corporation, TALK 

RADIO NETWORK- FM, INC., a 

D~laware corporation, 

AMERICA'S RADIO NEWS 

NETWORK, a Nevada Corporation,) 

Plaintiffs and 

Counter-claim 

Defendants, 

v. 

JOSEPH M. ALIOTO, 

individually and doing 

bu~iness as the ALIOTO 

FIRM, 

FANNER, J. 

Defendant and 

Counter-claim 

Plaintiff. 

LAW 

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No. 1:13-cv-00759-PA 

ORDER 

This matter comes before me on Defendant's Motion for 

Judgment (#190) and Plaintiffs' Supplemental Motion for Judgment 

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Case 1:13-cv-00759-PA Document 207 Filed 10/07/14 Page 1 of 5
Notwithstanding the Verdict (#199). Both motions are DENIED. 

Background 

This matter was tried before a jury on July 1-2, 2014. The 

verdict form asked the jury four questions, which the jury 

answered as follows: 

I. Did Defendant promise, as part of his written and 

alleged oral contract with Plaintiffs, to vigorously 

prosecute Plaintiffs' case? 

The jury answered "Yes.u 

II. If you answered "Yesu to Question I, did Defendant 

vigorously prosecute Plaintiffs' case? 

The jury answered "No.u 

III. Did Defendant promise, as part of his written and 

alleged oral contract with Plaintiffs, to diligently 

finalize and file the complaint in Plaintiffs' case? 

The jury answered "Yes.u 

IV. Did Plaintiffs fail to perform as .required by 

contract? 

The jury answered "Yes.u 

After questioning the jury and hearing the arguments of the 

parties, I determined that the jury's inswers to Questions I, II, 

and III were inconsistent with their answer to Question IV. I 

denied-.both parties' oral motions for judgment. I declared a 

mistrial and set retrial for Novembe-r 17, 2014. 

Discussion 

I. Defendant's-Motion for Judgment 

Defendant advances three arguments in support of his motion: 

First, Defendant argues that the terms "vigorously prosecuteu and 

"diligently finalize and file the complaintu are barred-by the 

parol evidence rule. Second, Defendant argues that the term 

2 - ORDER 

Case 1:13-cv-00759-PA Document 207 Filed 10/07/14 Page 2 of 5
"vigorously prosecute" is required to be_in writing under the 

statute of frauds. Third, Defendant argues that any breach on 

his part is excused by Plaintiffs' breach of the contract. 

A. Parol Evidence Rule 

Defendant has previously raised this parol evide~ce rule 

argument ~n his Amended Motion for Summary Judgment (#118) and in 

his Reply in support of that_ motion (#132): Defendant also 

repeatedly raised this argument during trial. I ~ejected-this 

argument when I denied summary judgment on the breach of contract 

claim. I further rejected this argument at trial. I find no 

reason to revisit those rulings at this time. 

B. Statute of Frauds 

Defendant argues that the term "vigorously prosecute" is 

"nebulous and unclear," but that one formulation of the 

definition would have required him to see the underlying case 

through to trial. Defendant contends that, because Plaintiffs' 

replacement counsel took more than a year to conclude the case 

without a trial, the Statute of Frauds requires that a contract 

to "vigorously prosecute" be in writing. 

Oregon's formulation of the Statute of Frauds requires: 

(1) In the following cases the agreement is void unless 

it, or some note or memorandum thereof, expressing the 

consideration, is in writing and subscribed by the 

party to be charged, or by the lawfully authorized 

agent of the party; evidence, therefore, of the 

agreement shall not be received other than the writing, 

or secondary evidence of its contents in the cas~s 

prescribed by law: (a) An agreement that by its 

terms is not to be performed within a year from the 

making. 

ORS 41.580. 

There is nothing in the record t6 indicate that any 

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Case 1:13-cv-00759-PA Document 207 Filed 10/07/14 Page 3 of 5
agreement t6 "vigorously prosecute" Plaintiffs' case was "by its 

terms" not to be performed within a year from the making of the 

agreement. ORS 41.580 does not, therefore, require that an 

agreement to "vigorously pros~cute" be in writirig. 

C. Excusable Non-Performance 

Defendant argues that any requirement that Defendant perform 

under the agreement was conditioned upon the payment of his 

retainer and that Plaintiffs' failure to pay the full amount 

excuses Defendant's failure to perform. I rejected this argument 

at trial, noting that there was contrary evidence in the record. 

I find no reason to revisit this issue in light of the jury's 

verdict. 

II. Plaintiffs' Motion for Judgment 

Plaintiffs initially moved for judgment immediately after 

the jury returned their verdict. That motion was denied. 

Renewed motions for judgment after trial must be filed "no later 

than 28 days after the jury was discharged." Fed. R. Civ. P. 

SO(b). The jury was discharged in this case on July 2, 2Dl4. 

Plaintiffs filed their renewed motion for judgment on August 15, 

2014, then filed a corrected version on August 18, 2014. Both 

dates are well beyond the deadline established by Rule SO(b). 

Plaintiffs' motion is DENIED as untimely. 

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Conclusion 

Defendant's Motion for Judgment (#190) is DENIED. 

Plaintiffs' Supplemental Motion for Judgment Notwithstanding the 

Verdict is DENIED (#199). 

IT IS SO ORDERED. 

DATED this~ day of October, 2014. 

~llttY~ Owen M. Panner 

United States District Judge 

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