                                                                                FILED
                             NOT FOR PUBLICATION                                 FEB 10 2012

                                                                             MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



POM WONDERFUL LLC, a Delaware                       No. 10-56791
limited liability company,
                                                    D.C. No. 2:09-cv-00567-AHM-
               Plaintiff - Appellant,               AGR

   v.
                                                    MEMORANDUM *
WELCH FOODS, INC., a Michigan
corporation,

               Defendant - Appellee.



                     Appeal from the United States District Court
                         for the Central District of California
                      A. Howard Matz, District Judge, Presiding

                             Submitted February 8, 2012 **
                                Pasadena, California

Before: D.W. NELSON, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.

        Pom Wonderful LLC contends that the district court erred by submitting to

the jury, at the end of the first phase of the bifurcated trial, the fact-of-injury


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
element of Pom’s Lanham Act claim. We disagree. The decision to submit that

issue to the jury accorded with the pretrial order bifurcating the trial and was not an

abuse of discretion.

          Pom also contends that the district court abused its discretion in denying its

motion to reopen the trial to submit further evidence on injury. Again, we

disagree. The record supports the district court’s decision to deny Pom’s request.

See Berns v. Pan Am. World Airways, Inc., 667 F.2d 826, 829 (9th Cir. 1982). The

record likewise supports the district court’s decision not to grant Pom a partial new

trial.1

          AFFIRMED.




          1
            On May 9, 2011, the parties filed a Joint Stipulation Concerning
Video Deposition Clips Played at Trial. We construe this submission as a joint
motion to supplement the record. So construed, the motion is GRANTED.

                                              2
