                                                                          FILED
                           NOT FOR PUBLICATION                            OCT 18 2013

                                                                      MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


MASHA MAXIM,                                    No. 11-17412

             Plaintiff-counter-defendant -      D.C. No. 1:10-cv-00016
             Appellee,

       v.                                       MEMORANDUM*

DENTAL CARE CORP; RODNEY
STEWART; SCOT THOMPSON,

             Defendants-counter-claimants
             - Appellants.

                   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.


        *
        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).
      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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