NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN COBB, No. 16-56300
Plaintiff-Appellant, D.C. No. 3:13-cv-01353-BEN-JMA
v.
MEMORANDUM*
RAMIRO RODRIGUEZ, ID 5857; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted September 24, 2018**
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
John Cobb appeals pro se from the district court’s judgment following a jury
trial in his 42 U.S.C. § 1983 action alleging federal and state law claims arising
from his arrest. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion by denying Cobb’s motion for
*
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). Cobb’s request for oral
argument, set forth in his opening and reply briefs, is denied.
a new trial because Cobb failed to set forth any basis for relief. See Molski v. M.J.
Cable, Inc., 481 F.3d 724, 728-29 (9th Cir. 2007) (grounds for a new trial under
Fed. R. Civ. P. 59(a)).
The district court did not err by denying Cobb’s motion for a new trial based
on its evidentiary rulings, all of which were within the court’s discretion. See
Wagner v. County of Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013) (setting forth
standard of review).
The district court’s finding that there was sufficient evidence to support the
jury’s verdict was correct. See Harper v. City of Los Angeles, 533 F.3d 1010, 1021
(9th Cir. 2008) (“A jury’s verdict must be upheld if it is supported by substantial
evidence, which is evidence adequate to support the jury’s conclusion, even if it is
also possible to draw a contrary conclusion.” (citation omitted)).
The district court did not abuse its discretion by overruling Cobb’s
objections to the defense expert’s testimony regarding defendants’ probable cause
and reasonable suspicion. See Fed. R. Evid. 704 (“An opinion is not objectionable
just because it embraces an ultimate issue”). Moreover, even assuming an error,
Cobb failed to demonstrate that any such ruling substantially prejudiced him. See
Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995) (“A new trial
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is only warranted when an erroneous evidentiary ruling substantially prejudiced a
party.” (citation and internal quotation marks omitted)).
Contrary to Cobb’s contention, it was not plainly or obviously erroneous for
the district court to permit defense counsel to refer, during closing arguments, to
the defense expert’s testimony regarding the existence of reasonable suspicion to
detain Cobb. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1193 (9th
Cir. 2002) (noting the “high threshold” applied to claims of improper closing
arguments in civil cases raised for the first time after trial).
The district court did not abuse its discretion by granting defendants’ motion
to quash Cobb’s subpoenas served after discovery had closed because Cobb failed
to show he was prejudiced by this order. See Laub v. U.S. Dep’t of Interior, 342
F.3d 1080, 1084, 1093 (9th Cir. 2003) (setting forth standard of review and
explaining that “a decision to deny discovery will not be disturbed except upon the
clearest showing that the denial of discovery results in actual and substantial
prejudice to the complaining litigant” (citation and internal quotation marks
omitted)).
Because Cobb’s claims concerning reasonable suspicion to detain, probable
cause to arrest, and the search before and after his arrest proceeded to a jury trial,
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we do not review the district court’s denial of summary judgment on these claims.
See Gen. Signal Corp. v. MCI Telecomms. Corp., 66 F.3d 1500, 1506 (9th
Cir. 1995).
The district court properly dismissed Cobb’s retaliation claim and his state
law claims under the Bane Act and the Unruh Civil Rights Act because Cobb
failed to allege facts sufficient to state a plausible claim. See O’Brien v. Welty, 818
F.3d 920, 932 (9th Cir. 2016) (elements of a First Amendment retaliation claim);
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (setting forth standard of
review, and noting that although pro se pleadings are to be liberally construed, a
plaintiff must still present factual allegations sufficient to state a plausible claim
for relief); Doe v. State, 214 Cal. Rptr. 3d 391, 399-400 (Ct. App. 2017) (elements
of a cause of action under the California Bane Act); Harris v. Capital Growth
Investors XIV, 805 P.2d 873, 878 (Cal. 1991) (elements of claim under the Unruh
Civil Rights Act), superseded by statute as recognized in Munson v. Del Taco,
Inc., 208 P.3d 623, 625 (Cal. 2009).
The district court did not abuse its discretion by denying Cobb’s motion for
entry of default judgment because the record does not show that defendants were in
default. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (setting forth the
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standard of review).
The district court did not abuse its discretion by denying Cobb’s motion for
leave to amend the complaint filed after the deadline set in the scheduling order
because of Cobb’s “undue delay” in raising the claim and the “prejudice to the
opposing party” that late amendment would cause. Johnson v. Buckley, 356 F.3d
1067, 1077 (9th Cir. 2004) (setting forth standard of review); see also Coleman v.
Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000) (noting that a plaintiff must
show “good cause” to amend a complaint after the deadline set forth in a
scheduling order has expired).
We do not consider Cobb’s arguments that were 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).
AFFIRMED.
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