                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-1959



RAOUL D. LEE,

                                            Plaintiff - Appellant,

          versus


LOCKHEED    MARTIN      OPERATIONS    SUPPORT,
INCORPORATED,

                                             Defendant - Appellee,

          and


LOCKHEED MARTIN CORPORATION; LOCKHEED MARTIN
TECHNICAL SERVICES, INCORPORATED,

                                                       Defendants.


                            No. 05-1976



RAOUL D. LEE,

                                             Plaintiff - Appellee,

          versus


LOCKHEED    MARTIN      OPERATIONS    SUPPORT,
INCORPORATED,

                                            Defendant - Appellant,

          and
LOCKHEED MARTIN CORPORATION; LOCKHEED MARTIN
TECHNICAL SERVICES, INCORPORATED,

                                                          Defendants.


Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CA-03-742-BR)


Submitted:   September 13, 2006           Decided:   October 17, 2006


Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Raoul D. Lee, Appellant/Cross-Appellee Pro Se. Robert A. Sar, John
E. Branch, III, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC,
Raleigh, North Carolina, for Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

          Raoul    Lee,   a   former   employee      of    Lockheed     Martin

Operations    Services,   Inc.   (“LMOS”),   filed   suit     against    LMOS,

alleging:1 (1) violation of Cal. Lab. Code Ann. § 970 (West 2003);2

(2) promissory fraud; (3) intentional concealment and omission of

known material facts; (4) negligent misrepresentation; (5) breach

of contract; (6) breach of the implied covenant of good faith and

fair dealing; (7) violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2000) (“Title

VII”); and (8) violation of the Age Discrimination in Employment

Act, 29 U.S.C. §§ 621 to 634 (2000) (“ADEA”).             The jury found for

LMOS on all claims.   The district court denied Lee’s motion for new

trial, and Lee appeals, giving rise to No. 05-1959.3            LMOS cross-

appeals, challenging the district court’s application of choice of

law principles, giving rise to No. 05-1976.

          First, Lee asserts that the district court erred by

issuing narrower jury instructions than those requested by Lee.4


     1
      Lee filed suit both in California (alleging the tort and
contract claims) and in North Carolina (alleging the discrimination
claims).   The California action was transferred to the Eastern
District of North Carolina, and the cases were consolidated.
     2
      A separate cause of action for violation of California public
policy did not survive summary judgment.
     3
      The Title VII and ADEA claims are not raised in this appeal.
     4
      The  district   court’s   instructions   focused   on   Lee’s
allegations in his complaint that LMOS promised a five-year term of
employment and agreed to an “in good faith” provision in its offer

                                  - 3 -
In diversity cases, the content of jury instructions is governed by

state law, while the form of the instructions is governed by

federal law.         Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1293 (4th

Cir.       1995).     We    review   the    jury   instructions   for   abuse   of

discretion. Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th Cir.

1999).      On review, jury instructions must be viewed as a whole, and

even where jury instructions are flawed, there can be no reversal

unless       the    error   seriously      prejudiced   the   plaintiff’s   case.

Hardin, 50 F.3d at 1294, 1296.             We have carefully reviewed the jury

instructions in this case in light of the evidence presented at

trial, and we find no reversible error.5

               Lee next challenges a clarifying instruction6 given in

response to a question from the jury during deliberations.                      We

review a district court’s decision to respond to a jury’s question,


letter that dictated the terms of Lee’s employment were not “at
will.” Lee claims the district court’s instructions gave short
shrift to evidence of alleged misrepresentations, omissions, and
false promises concerning the nature of the program for which he
was hired, which was subject to a contract between LMOS and the
Environmental Protection Agency.
       5
      Similarly, we conclude the district court did not abuse its
discretion by issuing instructions on at-will employment and
mitigation of damages.
       6
      After hearing argument from counsel for both parties, the
district court decided to respond to the jury with the direction to
resolve its question “by consideration of all the instructions I
have previously given to you.” The district court reasoned that
because it could not discern the context of the jury’s question,
its response that the jury consider the instructions it had been
given was best calculated to minimize the possibility of confusing
the jury.

                                           - 4 -
and the form of that response, for abuse of discretion.     United

States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995). “[I]n responding

to a jury’s request for clarification on a charge, the district

court’s duty is simply to respond to the jury’s apparent source of

confusion fairly and accurately without creating prejudice.” Id.

An error requires reversal only if it is prejudicial in the context

of the record as a whole.     See United States v. United Med. &

Surgical Supply Corp., 989 F.2d 1390, 1406-07 (4th Cir. 1993). We

conclude that the district court’s response in this case was fair

and accurate, and was certainly not prejudicial when judged on the

record as a whole.

          Lee also challenges the district court’s denial of his

Fed. R. Civ. P. 59(a) motion for a new trial.   “[T]he granting or

refusing of a new trial is a matter resting in the sound discretion

of the trial judge, and . . . his action thereon is not reviewable

upon appeal, save in the most exceptional circumstances.”    Aetna

Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 354 (4th Cir. 1941).   Lee

has offered no exceptional circumstances that would warrant a

finding that the trial court abused its discretion.    Thus, there

was no error in denying the motion for a new trial.7


     7
      Even viewing the facts in the light most favorable to Lee,
the non-moving party, we find meritless Lee’s contention that the
district court erred in granting LMOS’s Fed. R. Civ. P. 50(b)
motion for judgment as a matter of law with respect to the
availability of punitive damages on the California tort claims.
See Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469,
479-80 (4th Cir. 2005), cert. denied, 126 S. Ct. 2026 (2006); Cal.

                              - 5 -
            We affirm the judgment of the district court.           In light

of   this   decision,   we   have   no   occasion   to   address   the   claim

presented in LMOS’s cross-appeal.         We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.



                                                                    AFFIRMED




Civ. Code Ann. § 3294 (West 2003) (explicating standard upon which
punitive damages may be attained).

                                    - 6 -
