                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 17 2015

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ERICA SOLTERO,                                   No. 13-16971

              Plaintiff - Appellant,             D.C. No. 2:13-cv-01063-JAM-
                                                 EFB
 v.

MACY’S, INC., an Ohio corporation,               MEMORANDUM*

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                       Argued and Submitted May 15, 2015
                            San Francisco, California

Before: PAEZ and CLIFTON, Circuit Judges and DUFFY,** District Judge.

      Erica Soltero (“Soltero”) appeals the district court’s grant of Macy’s, Inc.’s

(“Macy’s”) motion to compel arbitration and to dismiss her action. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
1.    Soltero first argues that she was entitled to discovery on the content of an

electronic acknowledgment form she signed before the district court ruled on the

motion to compel arbitration. We review for abuse of discretion the district court’s

ruling whether to permit discovery under Federal Rule of Civil Procedure 56(d) in

the context of a summary judgment1 proceeding. See Morton v. Hall, 599 F.3d

942, 945 (9th Cir. 2010).

2.    Here, Soltero did not “diligently pursue[]” discovery. See Panatronic USA

v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002). The parties conferred over a

month and a half before the hearing on Macy’s motion to compel arbitration, but

Soltero propounded no discovery requests. See Fed. R. Civ. P. 26(d)(1) (“A party

may not seek discovery from any source before the parties have conferred as

required by Rule 26(f)”). Further, there were no surprises here. Soltero filed a

declaration in support of her opposition to Macy’s motion to compel arbitration,

which demonstrates that Soltero and her counsel had notice that the motion would

be treated as a motion for summary judgment. See San Pedro Hotel Co. v. City of

Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998).




      1
       The district court treated Macy’s motion to compel arbitration and to
dismiss as a motion for summary judgment.

                                         2
3.    Next, Soltero argues that the district court erred in overruling her evidentiary

objections to the declaration filed by Macy’s that explained the process through

which new hires, and specifically Soltero, signed electronic forms. The bases for

Soltero’s objections are an alleged lack of certainty in the precise text of the

acknowledgment form she signed and a lack of proper authentication. We review

evidentiary rulings for abuse of discretion. Valdivia v. Schwarzenegger, 599 F.3d

984, 993-94 (9th Cir. 2010); see also Wong v. Regents of the Univ. of Cal., 410

F.3d 1052, 1060 (9th Cir. 2005) (discussing evidentiary rulings in the summary

judgment context). To reverse an evidentiary ruling, we must also conclude that

the error was prejudicial. Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 534 (9th

Cir. 2011).

4.    Even assuming that the district court erred in its evidentiary ruling, an issue

we do not decide, any error was not prejudicial. Soltero’s only argument in the

district court was that the arbitration agreement she entered into was

unconscionable. She did not raise any dispute over the terms of the arbitration

agreement, nor the content of any writing she received from Macy’s that addressed

the arbitration agreement. Because there was no dispute in district court over the

terms of the arbitration agreement, and because Soltero does not deny that she




                                           3
signed an acknowledgment form, the district court’s ruling, even assuming error,

was not prejudicial.

      AFFIRMED.




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