By: WISCONSIN LAW JOURNAL STAFF//May 24, 2011//
Civil Procedure
Jury instructions; waiver
The defendants waived their objections to the jury instructions by failing to raise them.
“The error in the jury instruction is simply a trial error that the defendants could have challenged on the merits, but they failed to do so at any appropriate point in time. At trial, the defendants agreed to the instruction, and on appeal to this court they failed to present any challenge to the jury instruction, relying entirely on a challenge to the subject matter jurisdiction of the district court. They attempt to belatedly raise a plain error challenge to the jury instruction in their reply brief, but it is well-established that arguments raised for the first time in the reply brief are waived. United States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007); United States v. Blaylock, 413 F.3d 616, 619 (7th Cir. 2005). Although the defendants argue that Mendez raised the plain error issue in the appellee brief and that the issue is preserved for our review, that is a mischaracterization. The appellee’s brief argues that any challenge to the jury instruction is waived, addressing the validity of the instructions only in the alternative. The defendants have waived any challenge to the jury instructions by failing to raise it in their opening brief, and they have failed to establish that the district court lacked subject matter jurisdiction over the retaliatory discharge claim.”
Affirmed.
08-2029 Mendez v. Perla Dental
Appeal from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Rovner, J.