John Berman v. Knife River Corporation ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN BERMAN, No. 14-16874
Plaintiff-Appellant, D.C. No. 5:11-cv-03698-PSG
v.
MEMORANDUM*
KNIFE RIVER CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding**
Submitted April 11, 2017***
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
John Berman appeals pro se from the district court’s judgment following a
jury trial in his diversity action alleging personal injuries sustained in a motorcycle
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
accident. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse
of discretion. Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 822
(9th Cir. 2011) (discovery and discovery sanctions); Primiano v. Cook, 598 F.3d
558, 563 (9th Cir. 2010) (admissibility of expert testimony). We affirm.
The district court did not abuse its discretion by excluding Berman’s experts
on the ground that Berman failed to provide timely and adequate disclosures. See
Fed. R. Civ. P. 26(a)(2) (requirements for expert disclosures); Fed. R. Civ. P.
37(c)(1) (providing for exclusion of evidence where “a party fails to provide
information or identify a witness as required by Rule 26(a) . . . unless the failure
was substantially justified or is harmless”); Yeti by Molly Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1106-07 (9th Cir. 2001) (district courts have “particularly
wide latitude . . . to issue sanctions under Rule 37(c)(1)” for failure to comply with
disclosure obligations).
The district court did not abuse its discretion by imposing discovery
sanctions when Berman failed to supplement his responses to interrogatories in
response to the district court’s order. See Fed. R. Civ. P. 37(b)(2) (sanctions for
not obeying court order).
The district court did not abuse its discretion by declining to exclude the
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testimony of a defense expert because Berman failed to attach the expert’s report to
his motion and to establish grounds for exclusion. See Fed. R. Evid. 702
(governing testimony of expert witnesses).
The district court did not abuse its discretion by denying Berman’s motions
for reconsideration of evidentiary rulings because Berman failed to demonstrate
the required showing for reconsideration. See N.D. Cal. L.R. 7-9 (setting forth
grounds for reconsideration under the local rules); Hinton v. Pac. Enters., 5 F.3d
391, 395 (9th Cir. 1993) (abuse of discretion standard for determination of
compliance with local rules); see also Sch. Dist. No. 1J, Multnomah Cty., Or. v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (setting forth grounds for
reconsideration under the Federal Rules of Civil Procedure).
Contrary to Berman’s contention, the district court did not abuse its
discretion by considering the merits of the sanctions motions even though the
parties did not meet and confer.
Contrary to Knife River Corporation’s contention, the district court did not
clearly err in concluding that there was subject matter jurisdiction under 28 U.S.C.
§ 1332 because at the time of the filing of the lawsuit Berman was domiciled
outside of California and the parties were diverse. See Lew v. Moss, 797 F.2d 747,
3 14-16874
750 (9th Cir. 1986) (setting forth standard of review and explaining that “a
person’s old domicile is not lost until a new one is acquired”). Berman’s position
on appeal does not alter this conclusion.
Berman’s request for judicial notice (Docket Entry No. 33) is denied.
AFFIRMED.
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