Masha Maxim v. Dental Care Corp; Rodney Stewart; Scot Thompson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MASHA MAXIM,
Plaintiff-counter-defendant -
Appellee,
v.
DENTAL CARE CORP; RODNEY
STEWART; SCOT THOMPSON,
Defendants-counter-claimants
- Appellants.
No. 11-17412
D.C. No. 1:10-cv-00016
MEMORANDUM*
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Mark W. Bennett, District Judge, Presiding
Submitted October 8, 2013**
Honolulu, Hawaii
Before: KOZINSKI, Chief Judge, and FISHER and WATFORD, Circuit Judges.
Defendants appeal the judgment in favor of the plaintiff on her claims for
breach of contract and discharge in violation of public policy. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
OCT 18 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*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. See Fed. R. App. P. 34(a)(2).

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1. We review the defendants’ challenges to the jury instructions for plain
error because the defendants did not object to the instructions in the district court.
See Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1230 (9th Cir. 2011); Fed. R.
Civ. P. 51(c)(1), (d)(2). Although the defendants proposed jury instructions that
would have summarized their defenses and included substantial performance as an
element of Dr. Maxim’s breach of contract claim, they did nothing to place the
district court on notice that they objected to omission of those matters from the
court’s proposed instructions. See Hunter, 652 F.3d at 1230.
2. The district court did not plainly err by failing to give an instruction
summarizing the defendants’ proposed defenses to Dr. Maxim’s claims. Although
the defendants rely on Ninth Circuit Model Civil Jury Instruction 1.2, that
instruction covers only affirmative defenses. The defendants’ contention that Dr.
Maxim quit her job is not an affirmative defense but an attempt to prevent her from
proving her prima facie case. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080,
1088 (9th Cir. 2002) (“A defense which demonstrates that plaintiff has not met its
burden of proof is not an affirmative defense.”); see also Alaska Airlines v.
Oszman, 181 F.2d 353, 353 (9th Cir. 1950) (“It is of course true that the theories of
parties to a court action should be given the jury by way of instructions or charge .
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. . . But this does not mean that a party has the right to have the jury charged upon
every inference it thinks should be drawn from the evidence adduced.”).
3. The district court did not plainly err by declining to list Dr. Maxim’s
substantial performance as an element in the court’s breach of contract instruction.
Even assuming substantial performance is an element under CNMI law, as the
defendants contend, it is not plain error to omit it from jury instructions when, as
here, it has not been made an issue in the case. For example, Judicial Council of
California Civil Jury Instruction (CACI) 2420, upon which the defendants based
their proposed breach of contract instruction, states that this element “may be
deleted if substantial performance is not an issue.” We have found nothing in the
pretrial order or in the defendants’ communications with the district court that
advised the court that the defendants considered Dr. Maxim’s substantial
performance an issue in this case.
AFFIRMED.
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