Ronald Arnold v. Sam's Club , 662 F. App'x 506 ( 2016 )

FILED
NOT FOR PUBLICATION OCT 06 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD S. ARNOLD, No. 14-35626
Plaintiff-Appellant, D.C. No. 4:12-cv-00028-RRB
v.
MEMORANDUM*
SAM’S CLUB, Store #6603,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
Ronald S. Arnold appeals pro se from the district court’s judgment following
a jury verdict for defendant Sam’s Club in his negligence action. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the
district court’s evidentiary rulings. McEuin v. Crown Equip. Corp., 328 F.3d 1028,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1032 (9th Cir. 2003). We affirm.
The district court did not abuse its discretion in excluding from evidence
various items that Arnold sought to admit because the evidence was either not
authenticated or irrelevant, or both. See Fed. R. Evid. 401, 901.
Moreover, the district court did not abuse its discretion in excluding reports
of other slip-and-fall incidents at Sam’s Club because the reports were not
authenticated, see Fed. R. Evid. 901, and Arnold failed to establish that all of the
incidents occurred under substantially similar circumstances, see Daniel v.
Coleman Co. Inc., 599 F.3d 1045, 1048 (9th Cir. 2010) (stating that a “showing of
substantial similarity is required when a plaintiff attempts to introduce evidence of
other accidents as direct proof of negligence” (citation and internal quotation
marks omitted)).
The district court did not abuse its discretion by participating in the
questioning of Gene Bloom in order to clarify Arnold’s questions and to prevent
the undue repetition of testimony. See Swinton v. Potomac Corp., 270 F.3d 794,
808 (9th Cir. 2001) (district court has “wide discretion to participate in the
questioning of witnesses” and “[i]t is entirely proper for [the district court] to
participate in the examination of witnesses for the purpose of clarifying the
evidence, . . . controlling the orderly presentation of the evidence, and preventing
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undue repetition of testimony” (citation and internal quotation marks omitted)).
To the extent that Arnold contends that the district court erred in denying his
motion to compel Sam’s Club to produce an Alaska employee manual, the district
court did not abuse its discretion because Sam’s Club represented that it had
produced all of its written maintenance policies and procedures. See Hallett v.
Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (setting forth standard of review).
The district court did not abuse its discretion by admitting into evidence the
customer incident report signed by Arnold because Arnold stated that he did not
object to its admission. See McEuin, 328 F.3d at 1032 (setting forth standard of
review); United States v. Gwaltney, 790 F.2d 1378, 1386 (9th Cir. 1986) (a party
who has stipulated to the admission of evidence cannot later complain about its
admissibility).
The district court did not abuse its discretion by informing prospective jurors
during voir dire that Arnold is African American and asking whether they could be
fair to him. See Paine v. City of Lompoc, 160 F.3d 562, 564 (9th Cir. 1998) (“A
district judge has broad discretion in how to conduct the voir dire, and we review
only for abuse of discretion.”); id. (“[V]oir dire ought to be adequate to assure an
impartial jury[.]”).
The district court’s supplemental instructions to the jury in response to its
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questions were not plainly erroneous because the instructions correctly stated the
applicable legal standards. See C.B. v. City of Sonora, 769 F.3d 1005, 1016-18
(9th Cir. 2014) (en banc) (in civil cases, where party fails to object to jury
instructions, court reviews for plain error: “whether (1) there was an error; (2) the
error was obvious; and (3) the error affected substantial rights”).
We reject as unsupported by the record Arnold’s contention that the district
court erroneously “removed” punitive damages from the case because Arnold
sought compensatory damages only.
We do not consider issues not specifically and distinctly raised and argued in
the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Arnold’s July 27, 2015 request for an extension of time to file the reply brief
is granted. The Clerk shall file the reply brief received on September 30, 2015.
All other pending requests and motions are denied.
AFFIRMED.
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