*District Judge of the Southern District of Texas, sitting by

designation.

 

**Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-41144

STATE FARM FIRE AND CASUALTY COMPANY,

Plaintiff-Counter Defendant-Appellee,

VERSUS

CLIFFORD WOODS,

Defendant-Counter Claimant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas, Beaumont Division

(1:95-CV-260)

September 19, 1997

Before DeMOSS, DENNIS, Circuit Judges, and ROSENTHAL, District

Judges.*

PER CURIAM:**

Appellee State Farm Fire and Casualty Company (“State Farm”)

issued a binder providing fire insurance for appellant Woods’s home

on November 30, 1994. On December 29, 1994, Woods’s home and
nearby office building were totally destroyed by a fire determined

to be of incendiary origin. Woods filed a claim with State Farm.

After investigation, State Farm concluded Woods had caused this

destruction to occur. State Farm filed suit in federal district

court pursuant to 28 U.S.C. § 2201 seeking a declaratory judgment

that State Farm had no liability for Woods insurance claim. Woods

filed a counterclaim seeking to recover policy benefits and

attorneys’ fees. Woods also alleged State Farm had breached its

duty of good faith and fair dealing.

Before trial, Woods filed a motion seeking to have the parties

realigned. The district court denied this motion. The case was

tried before a jury which returned a verdict in favor of State Farm

finding Woods had burned or caused to be burned the insured

property. After judgment was entered, Woods filed a motion for a

new trial alleging the jury was improperly exposed to exhibits

containing prejudicial evidence. The evidence in question

consisted of approximately six pages of Woods’s examination under

oath. These pages contained testimony referring to a polygraph

test taken by Woods and a prior fire insurance claim filed by the

Woods’s son. The district court had ordered in response to Woods’s

motion in limine that no reference was to be made to these subject

matters. 

On appeal, Woods argues the district court erred in denying

his motion to realign the parties and in refusing to grant a new

trial because of the jury’s exposure to evidence previously ordered
excluded.

Proper alignment of parties lies within the discretion of the

court. Lloyd v. Pendleton Land & Exploration, Inc., 22 F.3d 623,

625 (5th Cir. 1994), Anheuser-Busch, Inc. v. John Labatt Ltd., 89

F.3d 1339, 1344 (8th Cir. 1996), cert. denied sub nom John Labatt

Ltd. v. Anheuser-Busch, Inc., 117 S.Ct. 944 (1997). We find no

abuse occurred.

A denial of a new trial is also reviewed for an abuse of

discretion. Bailey v. Daniel, 967 F.2d 178, 179-80 (5th Cir. 1992).

The standard is somewhat narrower when a new trial is denied than

when one is granted. Id. For the following reasons, we conclude no

abuse of discretion occurred. First, Woods did not object at trial

when the unexpunged examination under oath was introduced into

evidence. Furthermore, it appears State Farm’s failure to remove

the testimony in question from the examination under oath was not

intentional or in bad faith. Finally, any error resulting from the

jury’s exposure to this evidence appears harmless as the

overwhelming weight of the evidence supports the jury’s verdict.

United States v. Olano, 507 U.S. 725, 734 (1993), Longoria v.

Wilson, 730 F.2d 300, 305 (5th Cir. 1984).

For these reasons, the judgment of the district court is

AFFIRMED.