FILED
NOT FOR PUBLICATION JUL 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARTIN OGDEN, No. 11-16289
Plaintiff - Appellant, D.C. No. 2:08-cv-02180-DGC
v.
MEMORANDUM *
CDI CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted July 17, 2012 **
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Martin Ogden appeals pro se from the district court’s partial summary
judgment, and the jury’s verdict, in his action alleging violations of the Fair Labor
Standards Act and Arizona state law. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument, and therefore, denies defendant’s request for oral argument.
See Fed. R. App. P. 34(a)(2).
§ 1291 to review only the district court’s April 22, 2011 order denying Ogden’s
“motion for relief from order.” See Fed. R. App. P. 4(a)(1)(A) and 4(a)(4). We
review for an abuse of discretion, Cal. Dep’t of Soc. Servs. v. Leavitt, 523 F.3d
1025, 1031 (9th Cir. 2008), and we affirm.
The district court did not abuse its discretion in denying Ogden’s motion for
relief from its order denying his request for a new trial because Ogden failed to
establish valid grounds justifying such relief. See Fed. R. Civ. P. 60(b)(6); Lal v.
California, 610 F.3d 518, 524 (9th Cir. 2010) (equitable relief from judgment
under Rule 60(b)(6) is given only sparingly to prevent manifest injustice). First,
Ogden failed to establish that the jury instructions regarding defendant’s burden of
proof on its affirmative defense were erroneous. See Dickenson v. United States,
353 F.2d 389, 392 (9th Cir. 1965) (employer is required to establish its affirmative
defense to a claim under the Fair Labor Standards Act by a preponderance of the
evidence). Second, Ogden failed to establish that the jury’s deliberations were
tainted by extraneous prejudicial information, improper outside influence, or a
mistake concerning the verdict form. See Fed. R. Evid. 606(b).
We do not consider issues either raised for the first time on appeal, see Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999), or beyond the scope of this appeal.
Ogden’s motion to file a supplemental brief is denied.
2 11-16289
Defendant’s request for attorneys’ fees and costs is denied without prejudice
to allow submission of an appropriate, noticed motion for attorneys’ fees and a bill
of costs. See Fed. R. App. P. 38 and 39(d).
AFFIRMED.
3 11-16289