                                                                           FILED
                             NOT FOR PUBLICATION                             JUL 24 2015

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



                             FOR THE NINTH CIRCUIT


ROCKY DIETZ,                                     No. 13-35377

               Plaintiff - Appellant,            D.C. No. 2:11-cv-00036-RWA

          v.
                                                 MEMORANDUM*
HILLARY BOULDIN,

               Defendant - Appellee.

                    Appeal from the United States District Court
                            for the District of Montana
                 Richard W. Anderson, Magistrate Judge, Presiding

                       Argued and Submitted February 4, 2015
                                Seattle, Washington

Before: FISHER, BEA and MURGUIA, Circuit Judges.

      Rocky Dietz appeals from a judgment awarding him $15,000 in damages for

injuries stemming from an auto collision.1 We affirm.




          *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1
         We address Dietz’s argument that the district court erred by recalling the
jury after dismissal in an opinion filed concurrently with this memorandum
disposition.
      1. Although Bouldin’s counsel violated the order in limine prohibiting

mention of Dietz’s past methadone use, given the limited nature of the breach, and

because the district court promptly issued a curative instruction, the district court

did not abuse its discretion when it concluded the violation of its order was not

prejudicial. See United States v. Randall, 162 F.3d 557, 559 (9th Cir. 1998).

Furthermore, the district court did not clearly err by concluding that Bouldin’s

closing summation did not violate the order in limine prohibiting argument that

Dietz was motivated by secondary gain. See Lasar v. Ford Motor Co., 399 F.3d

1101, 1115 (9th Cir. 2005). Therefore, the district court did not abuse its

discretion in denying Dietz’s motions for mistrial on either of these grounds. See

id.

      2. Because Dietz’s motion for summary judgment was denied based on a

disputed issue of fact that was subsequently resolved at trial, we lack jurisdiction to

review the denial. See Banuelos v. Const. Laborers’ Trust Funds for S. Cal., 382

F.3d 897, 902 (9th Cir. 2004).

      AFFIRMED.




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