Rocky Dietz v. Hillary Bouldin , 610 F. App'x 637 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 24 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCKY DIETZ, No. 13-35377
Plaintiff - Appellant, D.C. No. 2:11-cv-00036-RWA
v.
MEMORANDUM*
HILLARY BOULDIN,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Richard W. Anderson, Magistrate Judge, Presiding
Argued and Submitted February 4, 2015
Seattle, Washington
Before: FISHER, BEA and MURGUIA, Circuit Judges.
Rocky Dietz appeals from a judgment awarding him $15,000 in damages for
injuries stemming from an auto collision.1 We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
We address Dietz’s argument that the district court erred by recalling the
jury after dismissal in an opinion filed concurrently with this memorandum
disposition.
1. Although Bouldin’s counsel violated the order in limine prohibiting
mention of Dietz’s past methadone use, given the limited nature of the breach, and
because the district court promptly issued a curative instruction, the district court
did not abuse its discretion when it concluded the violation of its order was not
prejudicial. See United States v. Randall, 162 F.3d 557, 559 (9th Cir. 1998).
Furthermore, the district court did not clearly err by concluding that Bouldin’s
closing summation did not violate the order in limine prohibiting argument that
Dietz was motivated by secondary gain. See Lasar v. Ford Motor Co., 399 F.3d
1101, 1115 (9th Cir. 2005). Therefore, the district court did not abuse its
discretion in denying Dietz’s motions for mistrial on either of these grounds. See
id.
2. Because Dietz’s motion for summary judgment was denied based on a
disputed issue of fact that was subsequently resolved at trial, we lack jurisdiction to
review the denial. See Banuelos v. Const. Laborers’ Trust Funds for S. Cal., 382
F.3d 897, 902 (9th Cir. 2004).
AFFIRMED.
2