Opinion
No. 05-55557.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 7, 2007.
Gerald A. Klein, Esq., Klein Wilson, Newport Beach, CA, for Plaintiff-counter-defendants-Appellees.
Robert G. Klein, Esq., Law Office of Robert G. Klein, Los Angeles, CA, for Defendants-counter-claimants-Appellants.
Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CV-03-01796-DOC.
Before: T.G. NELSON, GRABER, and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Defendants Clay Pacific S.R.L., a Bolivian corporation, and Pacific Telecom S.A., a Bolivian limited liability company, appeal the district court's grant of partial summary judgment and the entry of judgment in favor of Plaintiff STM Networks, Inc., following a jury trial, for non-payment of a $485,100 purchase order. We affirm.
1. The district court did not err in granting partial summary judgment to Plaintiff. On de novo review, Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002), we hold that the district court properly limited the scope of trial to whether Plaintiff breached the Business Partnership Agreement after the bankruptcy of STM Wireless. Defendants do not point to any pre-bankruptcy breaches by STM Wireless and therefore were not harmed by the limitation of which they complain. Defendants' general claim that the Business Partnership Agreement included a non-contingent, absolute obligation to deliver free equipment to Defendants was rejected by the jury.
2. The district court did not abuse its discretion in giving jury instructions consistent with its ruling on partial summary judgment. See Tritchler v. County of Lake, 358 F.3d 1150, 1154 (9th Cir. 2004) (holding that a district court's formulation of civil jury instructions is reviewed for abuse of discretion).
3. We decline to address Defendants' argument, raised for the first time on appeal, that Plaintiff failed to cure its default on the Business Partnership Agreement pursuant to 11 U.S.C. § 365(b)(1). See Beech Aircraft Corp. v. United States, 51 F.3d 834, 841 (9th Cir. 1995) (per curiam) ("Usually errors not raised in the trial court will not be considered on appeal."); Cal. State Employees' Credit Union No. 6 v. Nelson (In re Nelson), 561 F.2d 1342, 1348 (9th Cir. 1977) (noting that the issue in that case "was never disputed by Nelson in either the bankruptcy court or the district court. Therefore, the issue need not, and will not, be considered by this Court.").