                                                                                      FILED
                               NOT FOR PUBLICATION                                    NOV 25 2013

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



                                FOR THE NINTH CIRCUIT


 KALITTA AIR L.L.C.,                                    No. 12-15725

                Plaintiff - Appellant,                  D.C. No. 4:96-cv-02494-CW

   v.

 CENTRAL TEXAS AIRBORNE                                 MEMORANDUM*
 SYSTEM INC.,

                Defendant - Appellee.


                      Appeal from the United States District Court
                         for the Northern District of California
                     Claudia Wilken, Chief District Judge, Presiding

                        Argued and Submitted November 8, 2013
                               San Francisco, California

Before: FARRIS, BLACK**, and IKUTA, Circuit Judges.




         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable Susan H. Black, Senior Circuit Judge for the U.S. Court of
Appeals for the Eleventh Circuit, sitting by designation.
      Kalitta Air L.L.C. (Kalitta) appeals the district court’s entry of judgment in

favor of Central Texas Airborne System Inc. (CTAS) following a jury verdict in

favor of CTAS on Kalitta’s negligence claim. This is the third time this case has

come before this Court. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      First, the district court did not abuse its discretion by refusing to enter a

partial verdict in favor of Kalitta following the entry of a mistrial in March 2005.

See Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1134 (9th Cir. 1995).

The 2005 jury did not resolve the entirety of Kalitta’s negligence claim, and the

issue of CTAS’s breach of a duty was so intertwined with the issues of causation

and damages that holding a partial retrial on causation and damages alone would

have caused confusion and uncertainty. Gasoline Prods. Co. v. Champlin Ref. Co.,

283 U.S. 494, 500 (1931); Pumphrey, 62 F.3d at 1133-34.

      Second, the district court did not abuse its discretion by allowing CTAS to

present evidence that Hayes International (Hayes) made a conscious decision to

omit a doubler from the supplemental type certificate (STC) because the evidence

was relevant as it had a tendency to make a fact of consequence more or less

probable. Fed. R. Evid. 401. Kalitta’s theory of liability was based on the

assumption that, had CTAS investigated the necessity of a doubler, that part would


                                           2
have been added to the STC. Had a doubler been added to the design and installed

on Kalitta’s planes that had been modified pursuant to the STC, Steve Fox would

not have initiated his investigation and the Federal Aviation Administration (FAA)

would not have issued the Airworthiness Directive (AD) which effectively

grounded the planes. However, if Hayes intentionally omitted a doubler from its

design, it was less likely to second-guess that decision and add a doubler to the

STC in response to an investigation by CTAS. Accordingly, the evidence related

to a key element of Kalitta’s causation case, and the district court’s decision to

admit it was not “beyond the pale of reasonable justification under the

circumstances.” Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 943 (9th

Cir. 2009) (internal quotation marks omitted).

      Third, Kalitta raises a host of issues pertinent to its negligent

misrepresentation claim and various negligence theories unrelated to the issue of

the absent doubler. Kalitta, however, explicitly and strategically abandoned its

negligent misrepresentation claim and other negligence theories for the

pared-down third trial. The abandoned issues Kalitta now seeks to appeal include

(1) the exclusion of William Pieper’s testimony, which was proffered to establish

that CTAS’s installation and modification services fell below industry standards;

(2) the district court’s redaction of two FAA Reports that Kalitta explicitly says


                                           3
“proved [its] negligent misrepresentation claim”; (3) whether CTAS was governed

by Amendment 23 or Amendment 45 to the FAA Regulations—an issue that the

parties agreed had not been raised during the third trial; and (4) the district court’s

exclusion of Donald Buckley’s testimony about FAA-mandated reporting

requirements for observable skin wrinkling on aircraft. Having made the deliberate

choice to abandon its claim of negligent misrepresentation and other negligence

theories, and to forgo the introduction of the specified items of evidence in favor of

presenting a streamlined theory of liability relating solely to CTAS’s alleged

negligence regarding the doubler, Kalitta cannot now blame the district court for

the consequences of its actions.

      Nevertheless, even if Kalitta could pursue its abandoned issues at this

juncture, we would reject them on the merits. After reviewing the voluminous

record on appeal, we are convinced the district court did not abuse its discretion in

making these rulings. See Harper v. City of Los Angeles, 533 F.3d 1010, 1030 (9th

Cir. 2008).

      Fourth, Kalitta pursues a plethora of lingering issues from the first trial in

2001 that could have been presented to this Court during Kalitta’s first appeal.

These issues include (1) the district court’s redaction of the AD; (2) the issuance of

a limiting instruction directing the jurors that they could not consider the contents


                                            4
of the AD for its truth; (3) allowing CTAS to collaterally attack the AD; (4) the

issuance of a limiting instruction informing the jurors they could not consider two

service bulletins for their truth; and (5) the district court’s issuance of an

independent contractor instruction regarding Terry Cox, CTAS’s chief stress

engineer for the modification of Kalitta’s planes. We will not consider these

contentions because the district court made the same rulings during the first trial

and the same arguments Kalitta now advances were available during its first appeal

to this Court. Kesselring v. F/T Arctic Hero, 95 F.3d 23, 24 (9th Cir. 1996);

Munoz v. Cnty. of Imperial, 667 F.2d 811, 817 (9th Cir. 1982) (“We need not and

do not consider a new contention that could have been but was not raised on the

prior appeal.”).

      Finally, we need not consider any of Kalitta’s various damages issues

because the jury during the third trial never reached the issue of damages. Further,

because we have already concluded that none of the alleged errors enumerated by

Kalitta warrant reversal or remand for a retrial, it is unnecessary to consider

CTAS’s arguments regarding the economic loss doctrine.

AFFIRMED.




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