International House of Pancakes, Inc. v. Twin City Fire Insurance

*687 MEMORANDUM **

Following entry of judgment after trial, IHOP appeals several aspects of the district court’s jury instructions and the district court’s refusal to include a question on the special verdict form requiring a determination on IHOP’s breach of contract claim. Twin City claims that IHOP waived its right to appeal both the jury instructions and the special verdict form, and we agree.

I. Jury Instructions

Federal Rule of Civil Procedure 51 provides that:

[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.

Fed.R.Civ.P. 51. This circuit’s strict interpretation of Rule 51 precludes review of jury instructions unless a proper objection was made in the district court. See McGonigle v. Combs, 968 F.2d 810, 828 (9th Cir.1992). The court recognizes only a limited exception to Rule 51 for “futile formal objection[s].” Glover v. BIC Corp., 6 F.3d 1318, 1326 (9th Cir.1993). IHOP argues that the district court…