UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JAKE AGUILAR; CHARLES J. AVILA; FRANK R. BARRON; ALFONSO CASAREZ; FRANK CORDOVA; EUGENE G. DURAN; RICHARD DURAN; ALEX GARCIA; EDDIE W. GOMEZ; JOE L. GOMEZ; ELOY GUTIERREZ; THOMAS A. HAY; MIGUEL L. HERRERA; HARRY S. MESTAS; JOSEPH G. MONDRAGON; GEORGE MONTOYA; LEE MONTOYA; SAM MONTOYA; REUBEN J. NUNEZ; PHIL G. PADILLA; MARTIN QUINTERO; FILBERT J. ROYBAL, JR.; SALVADOR SANCHEZ; ARTHUR L. SANDOVAL; EDWARD SHANNON; LARRY D. SHAW; JACK SCHUSTER; STEPHEN R. SMITH; JOHN A. TOKAR; JOE N. TRUJILLO, JR.; PETE J. VALDEZ; PHILADELPHIO S. VELARDE; ERNEST E. VENSOR; JOE L. VIGIL; LEROY G. VIGIL; ROBERT F. WHITE; JOSEPH L. DURAN; MAX CASIAS; JAMES SUAZO; HENRY J. CHAVEZ; ROBERT DOMINGUEZ; INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA,

Plaintiffs-Appellees,

v.

BASIN RESOURCES, INC., a corporation,

Defendant-Appellant.

No. 03-1089

(D.C. No. 98-N-885 (OES))

(D. Colo.)

ORDER AND JUDGMENT*

Before EBEL, BALDOCK, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Defendant-appellant Basin Resources, Inc. (Basin) appeals the final judgment entered by the district court in favor of plaintiffs-appellees (plaintiffs) on February 4, 2003. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

This action was filed by a number of retired employees of Basin and their collective bargaining representative, the United Mine Workers of America. Plaintiffs sought injunctive and other relief based on their claims that Basin had breached its obligations under a collective bargaining agreement to provide lifetime health-care benefits. The case was tried before the district court and a jury, and the jury returned a general verdict in favor of plaintiffs on January 23, 2003.

In the final judgment it entered on February 4, 2003, the district court entered a money judgment in favor of plaintiffs based on the jury verdict, and it also granted injunctive relief to plaintiffs. On March 6, 2003, Basin filed a timely notice of appeal. Subsequently, on May 30, 2003, while this appeal was pending, the parties filed a joint motion in the district court under Fed. R. Civ. P. 60(b)(6) to correct the damage amounts set forth in the final judgment.1 On June 2, 2003, in response to the parties' motion, the district court entered an amended final judgment that reduced the dollar amount of the money judgment awarded to plaintiffs. Neither the amended final judgment nor the question of damages are at issue in this appeal, however, as Basin is challenging only the jury's liability determination in favor of plaintiffs.

Basin has asserted only one issue in this appeal, and that is whether the jury's verdict was against the weight of the evidence presented at trial. However, Basin did not file a motion for a new trial in the district court under Fed. R. Civ. P. 59(a) based on the weight of the evidence issue. As a result, Basin has waived its claim that the jury's verdict was against the weight of the evidence, and Basin's waiver precludes appellate review. See Pennington v. W. Atlas, Inc., 202 F.3d 902, 911 (6th Cir. 2000) ("In order to preserve a challenge to a jury verdict as being against the great weight of the evidence, the appellant must have made a motion for a new trial in district court. Failure to do so precludes appellate review.") (citations omitted); Etienne v. Inter-County Sec. Corp., 173 F.3d 1372, 1375 (11th Cir. 1999)(same); Velazquez v. Figueroa-Gomez, 996 F.2d 425, 427 (1st Cir. 1993) (same); see also King v. United States, 301 F.3d 1270, 1274 (10th Cir. 2002) ("It is a general rule that this court will not consider an issue on appeal that was not raised below."), cert. denied, 123 S. Ct. 2572 (2003).

The final judgment entered by the district court on February 4, 2003 is AFFIRMED insofar as it has been challenged in this appeal by Basin.

Entered for the Court

Bobby R. Baldock

Circuit Judge