                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 20 2012

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




                             FOR THE NINTH CIRCUIT



MARTIN OGDEN,                                    No. 11-16289

               Plaintiff - Appellant,            D.C. No. 2:08-cv-02180-DGC

  v.
                                                 MEMORANDUM *
CDI CORPORATION,

               Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                              Submitted July 17, 2012 **

Before:        SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Martin Ogden appeals pro se from the district court’s partial summary

judgment, and the jury’s verdict, in his action alleging violations of the Fair Labor

Standards Act and Arizona state law. We have jurisdiction under 28 U.S.C.


          *
             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, and therefore, denies defendant’s request for oral argument.
See Fed. R. App. P. 34(a)(2).
§ 1291 to review only the district court’s April 22, 2011 order denying Ogden’s

“motion for relief from order.” See Fed. R. App. P. 4(a)(1)(A) and 4(a)(4). We

review for an abuse of discretion, Cal. Dep’t of Soc. Servs. v. Leavitt, 523 F.3d

1025, 1031 (9th Cir. 2008), and we affirm.

      The district court did not abuse its discretion in denying Ogden’s motion for

relief from its order denying his request for a new trial because Ogden failed to

establish valid grounds justifying such relief. See Fed. R. Civ. P. 60(b)(6); Lal v.

California, 610 F.3d 518, 524 (9th Cir. 2010) (equitable relief from judgment

under Rule 60(b)(6) is given only sparingly to prevent manifest injustice). First,

Ogden failed to establish that the jury instructions regarding defendant’s burden of

proof on its affirmative defense were erroneous. See Dickenson v. United States,

353 F.2d 389, 392 (9th Cir. 1965) (employer is required to establish its affirmative

defense to a claim under the Fair Labor Standards Act by a preponderance of the

evidence). Second, Ogden failed to establish that the jury’s deliberations were

tainted by extraneous prejudicial information, improper outside influence, or a

mistake concerning the verdict form. See Fed. R. Evid. 606(b).

      We do not consider issues either raised for the first time on appeal, see Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999), or beyond the scope of this appeal.

      Ogden’s motion to file a supplemental brief is denied.


                                           2                                    11-16289
      Defendant’s request for attorneys’ fees and costs is denied without prejudice

to allow submission of an appropriate, noticed motion for attorneys’ fees and a bill

of costs. See Fed. R. App. P. 38 and 39(d).

      AFFIRMED.




                                          3                                   11-16289
