                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                      FILED
                                                            U.S. COURT OF APPEALS
                          ________________________            ELEVENTH CIRCUIT
                                                                   July 20, 2007
                                No. 07-10022                   THOMAS K. KAHN
                            Non-Argument Calendar                    CLERK
                          ________________________

                        D. C. Docket No. 05-00022-CV-2

JENNIE ELLIOTT,

                                                                Plaintiff-Appellant,

                                      versus

FLYING J., INC.,

                                                               Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________

                                 (July 20, 2007)

Before ANDERSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:

     Jennie Elliott appeals from an adverse judgment after a jury trial in her suit
to recover unpaid overtime compensation. On appeal, Elliott argues that there was

insufficient evidence to support the judgment, that the district court charged the

jury incorrectly on the standard of proof, and that the district court erroneously

granted Flying J’s motion in limine.

      Turning to Elliott’s first argument, it is clear that we are precluded from

deciding it because she did not renew her motion for Judgment as a Matter of Law

after the jury returned the verdict. As the Supreme Court in Unitherm Food

Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 126 S.Ct. 980, 163 L.Ed.2d 974

(2006), explained,

      the preverdict motion cannot form the basis of [the appellant]'s appeal
      because the denial of that motion was not in error. It was merely an
      exercise of the [d]istrict [c]ourt's discretion, in accordance with the
      text of the Rule and the accepted practice of permitting the jury to
      make an initial judgment about the sufficiency of the evidence.

546 U.S. at __, 126 S.Ct. at 988-89. The Court emphasized the necessity of filing

a postverdict motion, holding that the "[d]etermination of whether a new trial

should be granted or judgment entered under Rule 50(b) calls for the judgment in

the first instance of the judge who saw and heard the witness and has the feel of

the case which no appellate printed transcript can impart." Id. at __, 126 S.Ct. at

985-86 (citation omitted). Therefore, we must affirm on this issue.

      Elliott’s second argument is that the district court erred when it instructed

                                          2
the jury that it must find Elliott was an executive by a preponderance of the

evidence. Elliott argues that the proper standard required Flying J to show that she

fit plainly and unmistakably within the terms of the executive exception.

       Elliott failed to timely object to the instructions below. Because she did not

object below, we review for plain error. See United States v. Massey, 89 F.3d

1433, 1442 (11th Cir. 1996) (failure to object to jury instructions reviewed for

plain error). Under plain error review, we may not correct an error the defendant

failed to raise in the district court unless there is: “(1) error, (2) that is plain, and

(3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d 1291,

1298 (11th Cir. 2005) (quotation marks omitted). If all three conditions are met,

we may then exercise our discretion to notice a forfeited error, but only if “(4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation marks omitted).

       Here, the district court took the instructions from the Eleventh Circuit

Pattern Jury Instructions for Fair Labor Standards Acts suits. Plain error is, by its

terms, error which is so obvious and substantial that it should not have been

permitted by the trial court even absent the defendant's timely assistance in

detecting it. See United States v. Martinez, 83 F.3d 371, 376 (11th Cir. 1996). For

it to be “plain,” the error must either have been clear under the law at the time the

                                             3
error was made, or clearly contrary to the law at the time of the appeal. United

States v. Mitchell, 146 F.3d 1338, 1342-43 (11th Cir. 1998). Elliott has not

pointed to any cases that have held that the pattern jury instructions are erroneous;

rather, she points to a decades-old Supreme Court case that holds the exemption

must be construed strictly. This is not enough to amount to plain error, if there is

error at all. Even if Elliott had objected in a timely manner, it would not have

been an abuse of discretion for the district court to deny the objection because

Elliott has not put forth any real argument about how the pattern instructions are

erroneous.

      Finally, Elliott argues that the district court should not have granted Flying

J’s motion in limine, which prevented her from putting on evidence that her salary

was docked on days she was absent.

      We review the grant of a motion in limine for abuse of discretion. Mercado

v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005). The district court

determined that there were two instances when Flying J docked Elliott’s pay. In

both cases, she was out sick for the entire day and the court concluded that, under

the regulations, Flying J was entitled to dock her pay. In the alternative, the court

stated that Flying J fell within the “window of correction” exception because it

paid back Elliott for the docked pay. Elliott has not challenged the district court’s

                                          4
finding that she fell under 29 C.F.R. § 541.602(b)(2), which allows deductions for

full-day absences when the employee is under a plan that provides compensation

for sick days. Elliott has not alleged or shown in any way that she was not under

such a plan. Therefore it was not an abuse of discretion for the district court to

grant the motion in limine.

        AFFIRMED.1




        1
             In light of our resolution, appellee’s motion to dismiss the appeal is denied as
moot.

                                               5
