                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 17 2015

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



                           FOR THE NINTH CIRCUIT


BAUER BROS. LLC, a California limited            No. 12-57320
liability company,
                                                 D.C. No. 3:09-cv-00500-WQH-
              Plaintiff-counter-defendant -      BGS
Appellant,

  v.                                             MEMORANDUM*

NIKE, INC., an Oregon corporation,

              Defendant-counter-claimant -
Appellee.


                   Appeal from the United States District Court
                     for the Southern District of California
                   William Q. Hayes, District Judge, Presiding

                      Argued and Submitted February 5, 2015
                               Pasadena, California

Before: PREGERSON and NGUYEN, Circuit Judges, and CARR, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
      Bauer Bros. LLC appeals the district court’s exclusion of certain evidence

pursuant to Federal Rule of Civil Procedure 37(c)(1) and its grant of summary

judgment in favor of Nike, Inc. We have jurisdiction pursuant to 28 U.S.C. §

1291. We affirm in part and reverse in part.1

      1. Reviewing for abuse of discretion, see Republic of Ecuador v. Mackay,

742 F.3d 860, 864 (9th Cir. 2014), we find no error in the district court’s exclusion

of Bauer Bros.’ untimely-disclosed silkscreen evidence on the ground that the

evidence fell within the ambit of Bauer Bros.’ disclosure obligations pursuant to

Federal Rule of Civil Procedure 26. Likewise, the district court did not abuse its

discretion in finding that the untimely disclosure was not “substantially justified”

or “harmless.” See Fed. R. Civ. P. 37(c)(1). We therefore affirm the district

court’s exclusion of the silkscreen evidence.

      2. Reviewing de novo, see Rearden LLC v. Rearden Commerce, Inc., 683

F.3d 1190, 1202 (9th Cir. 2012), we find that the district court erred in granting

summary judgment to Nike on the issue of priority of use. While Nike presented

some evidence calling into question the date of first use in commerce set forth in



      1
       Bauer Bros.’ request for judicial notice is DENIED because the materials
appended thereto “are not relevant to the resolution of this appeal.” Santa Monica
Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1025 n.2 (9th Cir. 2006).


                                          2
Bauer Bros.’ trademark registration applications, that evidence is not sufficient, on

summary judgment, for Nike to meet its burden to overcome the presumptive first

use in commerce date arising from those applications. See 15 U.S.C. § 1115;

Brookfield Comm’cns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1051 n.13

(9th Cir. 1999); Sengoku Works Ltd. v. RMS Intern., Ltd., 96 F.3d 1217, 1219–20

(9th Cir. 1996). This conclusion is bolstered by the fact that Luke Bauer attested

that Bauer Bros. was using both of the relevant marks on T-shirts prior to the filing

of the respective trademark applications. Nike’s arguments regarding Luke

Bauer’s credibility are appropriately addressed at trial, not on summary judgment.

See, e.g., SEC v. Koracorp Indus., Inc., 575 F.2d 692, 699 (9th Cir. 1978). Thus,

we reverse the district court’s grant of summary judgment in favor of Nike on the

issue of priority of use and remand for proceedings consistent with this

memorandum.2

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      The parties shall bear their own costs.




      2
        Of course, the district court is free on remand to revisit its ruling excluding
evidence and the parties’ other summary judgment motions that it previously
denied as moot.

                                          3
