David Long v. Fedex Ground Package System, I

MEMORANDUM

Appellant David Long raises five issues in this appeal following a jury verdict finding that Appellee FedEx Ground Package System, Inc. was not negligent. Because the parties are well acquainted with the facts and circumstances of this case, we repeat them only as necessary to illuminate this disposition. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

First, the district court properly exercised its authority to strike Long’s vicarious liability claim from the final pretrial order. See Polar Bear Prod., Inc. v. Timex Corp., 384 F.3d 700 , 704-05, 719 (9th Cir.2004) (affirming a “series of oral rulings” that “disposed of a number of Polar Bear’s claims,” including a claim for attorney’s fees, because “Polar Bear had not pleaded th[e claim for attorney’s fees] in either its original or amended complaint, and the inclusion of the claim in the pretrial order ‘lacked candor’ ”). The district court did not have an obligation to instruct the jury on a theory that was not before it. See McGonigle v. Combs, 968 F.2d 810, 822 (9th Cir.1992).

Second, Long argues that 23 U.S.C. § 127 and its implementing regulation, 23 C.F.R. § 658.23 , incorporate Montana…