                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 02 2015

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

TOYRRIFIC, LLC,                                  No. 13-55825

              Plaintiff - Appellant,             D.C. No. 2:12-cv-04499-ODW-E

 v.
                                                 MEMORANDUM*
EDVIN KARAPETIAN, an individual; et
al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Otis D. Wright II, District Judge, Presiding

                        Argued and Submitted May 7, 2015
                              Pasadena, California

Before: LIPEZ,** WARDLAW, and MURGUIA, Circuit Judges.

      Toyrrific, LLC appeals the district court’s order excluding damages

evidence as a sanction pursuant to Federal Rule of Civil Procedure 37(c)(1) and

granting summary judgment in favor of Defendants Edvin Karapetian, Edward

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
               The Honorable Kermit V. Lipez, Senior Circuit Judge for the First
Circuit, sitting by designation.
Minasyan, Lena Amerkhanian, and Edo Trading, Inc. (“Appellees”). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

      1. The district court did not err in concluding that Toyrrific failed to meet

all of its initial disclosure obligations under Federal Rule of Civil Procedure

26(a)(1)(A)(iii). See R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1246

(9th Cir. 2012). Rule 26(a)(1)(A)(iii) requires parties to produce “a computation of

each category of damages claimed” and to “make available for inspection and

copying . . . the documents . . . on which each computation is based” without

awaiting a discovery request. Toyrrific did neither. Rule 26(a)(1)(A) disclosures

must be made “without awaiting a discovery request,” so it is irrelevant whether

Appellees sought the information by interrogatory or failed to move to compel

disclosure.

      2. However, the district court erred as a matter of law by excluding the

damages evidence under Rule 37(c)(1). See R & R Sails, 673 F.3d at 1247. Here,

excluding damages evidence was fatal to Toyrrific’s claim. Appellees moved for

summary judgment on the basis that Toyrrific could not introduce evidence of

damages. The district court in the same order (1) ruled on the discovery violation,

(2) ordered the evidence excluded, and (3) granted summary judgment on the sole

basis that, as a result of the exclusion of the evidence, Toyrrific could not prove the


                                          2
damages element of its breach of contract claim. “Thus in practical terms, the

sanction amounted to dismissal of a claim.” Id. Accordingly, the district court

erred as a matter of law by imposing Rule 37(c)(1) exclusionary sanctions without

finding that Toyrrific’s “noncompliance involved willfulness, fault, or bad faith,”

and without considering “the availability of lesser sanctions.” Id. at 1245, 1247.1

      REVERSED and REMANDED.




      1
         We note that there is some tension in our law over the requirement that,
before a sanction amounting to dismissal of a claim can be issued, the district court
must consider whether the claimed “noncompliance involved willfulness, fault, or
bad faith” and must also consider “the availability of lesser sanctions.” R & R
Sails, 673 F.3d at 1247. The panel in R & R Sails distinguished Hoffman v. Constr.
Protective Servs., Inc., 541 F.3d 1175 (9th Cir. 2008), which “reject[ed] the notion
that the district court was required to make a finding of willfulness or bad faith to
exclude the damages evidence . . . even when a litigant’s entire cause of action will
be precluded,” 541 F.3d at 1180, by asserting that the sanction there was not
tantamount to a dismissal of the entire claim. See 673 F.3d at 1247 n.1. We find
this distinction questionable, but are bound to follow R & R Sails.

                                          3
