George M. Harvey, Plaintiff-appellant, v. Novo Communications, Inc., Dba Bonded Services and Thehartford Insurance Group, Defendants-appellees, 942 F.2d 791 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 942 F.2d 791 (9th Cir. 1991) Submitted July 11, 1991. *Decided Aug. 21, 1991

Before REINHARDT and FERNANDEZ, Circuit Judges, and CROCKER,**  District Judge.

MEMORANDUM*** 

George M. Harvey appeals pro se the district court's dismissal of his case pursuant to Fed. R. Civ. P. 41(b). This court reviews the district court's findings of fact for clear error, and its legal conclusions de novo when reviewing a dismissal under Rule 41(b). Sepulveda v. Pacific Maritime Assn., 878 F.2d 1137, 1139 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 561 (1989).

Harvey argues that the district court erred in dismissing the case for failure to prove the facts necessary to support his claims for relief under ERISA (29 U.S.C. § 1132), and the specific provisions for continuation health care coverage under group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act (COBRA) (29 U.S.C. § 1161, et seq.). We disagree. The district court did not err in deciding to dismiss the action at the conclusion of Harvey's case.

Harvey contends that the district court's findings of fact are erroneous because the court failed to consider certain information which had been improperly ruled irrelevant. Harvey further relies upon certain exhibits included in his excerpts of record that were not part of the record at trial. Insofar as appellant relies upon evidence not presented at trial, having failed to present this evidence to the district court, Harvey may not now urge in this court that the district court erred in failing to consider that evidence. Andersen v. Cumming, 827 F.2d 1303, 1305 (9th Cir. 1987); Bergen v. F/V St. Patrick, 816 F.2d 1345, 1351 (9th Cir. 1987).

Harvey also argues that the district court erred when it ruled that certain testimony with regard to continuation health care premiums for COBRA coverage for another employee were irrelevant. Harvey argues that this evidence was relevant to show Bonded discriminated against him with regard to his COBRA coverage. We review district court rulings on evidentiary questions for abuse of discretion. Churchill v. F/V Fjord, 892 F.2d 763, 771 (9th Cir. 1988), cert. denied, --- U.S. ----, 110 S. Ct. 3273 (1990). The court allowed Harvey to explain the relevancy of the evidence he was attempting to elicit from the witness. After the explanation proffered by Harvey, the court again sustained the objection. The court properly excluded the evidence as it was clearly not relevant to the issues being tried, that is, whether Harvey received proper written notice of his COBRA right to continuation health coverage, and made timely election and payments for such coverage. Thus, the court did not abuse its discretion in excluding the evidence.

Appellees seek attorneys' fees and other relief pursuant to Fed. R. App. P. 38 on the grounds that the appeal is frivolous. "An appeal is frivolous when the result is obvious or the appellant's arguments are wholly without merit. Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1288 (9th Cir. 1984)." Smith v. C.I.R., 800 F.2d 930, 934 (9th Cir. 1986). The court declines to assess the sanctions sought against this pro se appellant because appellant appears to have put forth what to him were plausible and good faith, albeit incorrect, arguments supporting his appeal.

The judgment of the district court is AFFIRMED. Appellees' motions for sanctions are DENIED.

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The panel unanimously finds this case suitable for disposition without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 343(a)

 **

Honorable Myron D. Crocker, United States District Judge, Eastern District of California, sitting by designation

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3