Mullen v. United States

MEMORANDUM ^**

Steve Mullen appeals pro se from the district court’s judgment in favor of the United States after a bench trial in Mullen’s Federal Tort Claims Act action alleging intentional infliction of emotional distress (“IIED”) in connection with the government’s investigation of Mullen’s business. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s conclusions of law, and review its findings of fact for clear error. Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 843 (9th Cir.2004). We review for abuse of discretion the district court’s evidentiary rulings. McEuin v. Crown Equipment Corp., 328 F.3d 1028, 1032 (9th Cir.2003). We affirm.

The district court’s conclusion that Mullen failed to establish all the elements of a prima facie claim of IIED is not based on clearly erroneous findings of fact. See Wilkins v. Nat’l Broadcasting Co., 71 Cal.App.4th 1066, 1087, 84 Cal.Rptr.2d 329 (1999) (outlining elements of IIED claim under California law).

The district court did not abuse its discretion in considering audiotapes submitted by the defense that were properly authenticated and therefore admissible. See Fed.R.Evid. 901(b)(5). The defense did not violate its disclosure obligations under Fed.R.Civ.P. 26 where the tapes were offered “solely for impeachment.” Fed.R.Civ.P. 26(a)(1)(B).

We reject Mullen’s attempts to re-litigate issues resolved by a previous panel of this court, such as probable cause, because Mullen does not point to new evidence indicating that our earlier decisions were clearly erroneous. See Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833 (9th Cir.1982) (explaining “law of the case” doctrine).

We do not consider the district court’s denial of Mullen’s Fed.R.Civ.P. 60(b) motion because Mullen did not separately appeal it. See TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc., 915 F.2d 1351, 1354 (9th Cir.1990).

Mullen’s remaining contentions lack merit.

We grant Mullen’s motion to file a late reply brief. The Clerk shall file the reply brief received on May 14, 2007. We deny all other pending motions.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.