Openshaw v. Fedex Ground Package System, Inc.

dissenting:

In May 2009, John Openshaw and FedEx Ground Package System, Inc. (“FedEx”) signed an Operating Agreement whereby Openshaw agreed to deliver FedEx packages in the Palm Springs, California region. Just five months later, in October 2009, FedEx terminated the Operating Agreement with Openshaw. Subsequently, Openshaw brought an action against FedEx for breach of contract and for breach of the implied covenant of good faith and fair dealing. Before a jury, he presented evidence that — he argued— showed that FedEx breached the Operating Agreement by, among other things, unfairly criticizing his performance, not shifting packages to other deliverers in a process called “flexing,” not providing him a spare truck or a spare driver, not informing him of how many packages he had to deliver, not renting him functional scanning equipment, allowing a driver to be hired away from him without notice, inter *689 fering in his ability to hire a driver, and terminating his agreement without notice and with the intent to deprive him of the opportunity to sell his routes.

The jury returned what amounted to a split verdict. It was unable to reach a verdict on the breach of contract claim…

MEMORANDUM *

John Openshaw entered into an Operating Agreement (“Agreement”) with FedEx Ground Package System, Inc. (“FedEx”). After FedEx terminated the Agreement, Openshaw sued FedEx for breaching the Agreement and breaching the implied covenant of good faith and fair dealing. The claims went to a jury. The jury was unable to reach a verdict on the breach of contract claim. However, the jury awarded Openshaw damages on the claim of breach of implied covenant of good faith and fair dealing. FedEx now appeals the district court’s denial of FedEx’s Rule 50(b) motion for judgment notwithstanding the verdict, FedEx’s Rule 59 motion for remittitur or new trial on damages, and FedEx’s motion to exclude Openshaw’s expert from testifying about Openshaw’s damages. FedEx abandoned any argument that it was entitled to a full new trial because of legal error, and we will not manufacture such a claim here. On appeal, we review the district court’s denial of the Rule 50(b) motion de novo, Josephs v. Pacific Bell, 443 F.3d 1050, 1062 (9th *687 Cir.2006), and reverse and remand with instructions to enter judgment for FedEx.

Openshaw argued that FedEx breached the implied covenant of good faith…

FILED

NOT FOR PUBLICATION MAY 29 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ROBERT OPENSHAW, No. 12-56581

Plaintiff - Appellee, D.C. No. 8:10-cv-00689-CJC-SS

v.

MEMORANDUM*

FEDEX GROUND PACKAGE SYSTEM,

INC.,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Argued and Submitted March 7, 2014 Pasadena, California

Before: BYBEE, BEA, and IKUTA, Circuit Judges.

John Openshaw entered into an Operating Agreement (“Agreement”) with

FedEx Ground Package System, Inc. (“FedEx”). After FedEx terminated the

Agreement, Openshaw sued FedEx for breaching the Agreement and breaching the

implied covenant of good faith and fair dealing. The claims went to a jury. The

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. jury was unable to reach a verdict on the breach of contract claim. However, the

jury awarded Openshaw damages on the claim of breach of implied…