                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 04 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANHING CORPORATION, a California                 No.   14-56664
corporation,
                                                 D.C. No.
              Plaintiff-Appellant,               2:13-cv-04348-BRO-JCG

 v.
                                                 MEMORANDUM*
VIET PHU, INC., a California corporation
and AN N CUONG CO., LTD., a Foreign
corporation,

              Defendants-Appellees.



ANHING CORPORATION, a California                 No.   14-56914
corporation,
                                                 D.C. No.
              Plaintiff-Appellee,                2:13-cv-04348-BRO-JCG

 v.

VIET PHU, INC., a California corporation,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                  Beverly Reid O’Connell, District Judge, Presiding

                             Submitted October 4, 2016**
                                Pasadena, California

Before: REINHARDT, FERNANDEZ, and OWENS, Circuit Judges.

       In No. 14-56664, plaintiff Anhing Corporation appeals from the district

court’s judgment, after a jury trial, in its trademark infringement action against

defendants Viet Phu, Inc., and An N Cuong Co. Anhing alleged that defendants

infringed on its red sailing ship mark for Asian food products. The jury found no

likelihood of confusion between the parties’ marks. On appeal, Anhing challenges

several pre-trial rulings.

       In No. 14-56914, Viet Phu cross-appeals from the district court’s denial of

its motion for attorneys’ fees and costs under the Lanham Act, 15 U.S.C.

§ 1117(a).

       As the parties are familiar with the facts, we do not recount them here. We

affirm in No. 14-56664, and we vacate and remand in No. 14-56914.

       1.     Anhing argues that the district court abused its discretion in excluding

its evidence of damages as a discovery sanction under Federal Rule of Civil

Procedure 37(c)(1) for Anhing’s failure to disclose its computation of damages as


       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                           2
required by Federal Rule of Civil Procedure 26(a)(1)(A)(iii). In particular, Anhing

challenges the district court’s ruling restricting Anhing from contesting Viet Phu’s

profits and expenses, which was relevant to Anhing’s efforts to obtain an award

based on disgorgement of Viet Phu’s profits. However, the district court

reasonably determined that Anhing’s failure to provide its computation of damages

was not “harmless” as to Anhing’s claim for disgorgement of Viet Phu’s profits.

Fed. R. Civ. P. 37(c)(1). Therefore, the district court did not abuse its discretion in

excluding Anhing’s evidence of damages as a discovery sanction, including

regarding Viet Phu’s profits and expenses. See Hoffman v. Constr. Protective

Servs., Inc., 541 F.3d 1175, 1178 (9th Cir. 2008) (“[W]e give particularly wide

latitude to the district court’s discretion to issue sanctions under Rule 37(c)(1).”

(citation omitted)).

       2.     Anhing contends that the district court erred in denying its request for

a bench trial because it only sought the equitable relief of disgorgement of profits

and an injunction. However, Anhing points to no authority that it had a right to a

bench trial. The Seventh Amendment guarantees the right to a jury trial for certain

claims, but does not guarantee the right to a bench trial. See U.S. Cont. amend. VII

(“In Suits at common law, where the value in controversy shall exceed twenty

dollars, the right of trial by jury shall be preserved . . . .”); Beacon Theatres, Inc. v.


                                             3
Westover, 359 U.S. 500, 510 (1959) (noting that “the right to jury trial is a

constitutional one . . . while no similar requirement protects trials by the court”).

Anhing relies on our intervening decision, after the judgment in this case, which

clarified that “[a] claim for disgorgement of profits under [the Lanham Act, 15

U.S.C.] § 1117(a) is equitable, not legal” and “[t]here is no Seventh Amendment

right to have a jury calculate profits” to be disgorged. Fifty-Six Hope Rd. Music,

Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1074 (9th Cir. 2015). However, in that

case the plaintiffs argued that their Seventh Amendment right to a jury trial was

violated by the judge calculating profits to be disgorged, not that they had the right

to a bench trial. See id.

      Further, even if Anhing had a right to a bench trial for disgorgement of

profits, any error was harmless because the jury did not reach that issue. Contrary

to Anhing’s contention, the jury’s finding that Viet Phu was not liable because

there was no likelihood of confusion was not unfairly prejudiced by the evidence

and argument regarding Viet Phu’s lack of profits. See Hemmings v. Tidyman’s

Inc., 285 F.3d 1174, 1192 (9th Cir. 2002) (noting that conduct during closing

argument generally “results in a new trial if the flavor of misconduct sufficiently

permeate[s] an entire proceeding to provide conviction that the jury was influenced




                                           4
by passion and prejudice in reaching its verdict” (citation and internal quotation

marks omitted)).

      3.     Anhing argues that the district court abused its discretion by admitting

evidence of Viet Phu’s abandoned trademark application. However, the district

court did not abuse its discretion in determining that the evidence was relevant to

the issue of whether Viet Phu’s conduct was “willful,” and was admissible subject

to a limiting instruction. See Miller v. City of Los Angeles, 661 F.3d 1024, 1030

(9th Cir. 2011) (stating that there is a “strong presumption that jurors follow

instructions”).

      4.     Anhing contends that the district court erred in dismissing defendant

An N Cuong for lack of personal jurisdiction. We reject Anhing’s contention.

      The district court properly determined that general personal jurisdiction did

not exist because An N Cuong’s contacts with California are not “so ‘continuous

and systematic’ as to render them essentially at home in the forum State.”

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)

(citation omitted). Further, Anhing failed to show an alter ego relationship

between An N Cuong and Viet Phu, such that Viet Phu’s contacts in California

could be imputed to An N Cuong. See Ranza v. Nike, Inc., 793 F.3d 1059, 1070-75

(9th Cir. 2015) (discussing alter ego test).


                                           5
      The district court also properly determined that specific personal jurisdiction

did not exist because An N Cuong did not purposefully direct activity towards

California. See Picot v. Weston, 780 F.3d 1206, 1211-14 (9th Cir. 2015)

(discussing purposeful direction test); see also J. McIntyre Mach., Ltd. v. Nicastro,

564 U.S. 873, 882 (2011) (“The defendant’s transmission of goods permits the

exercise of jurisdiction only where the defendant can be said to have targeted the

forum; as a general rule, it is not enough that the defendant might have predicted

that its goods will reach the forum State.”).

      Additionally, the district court did not abuse its discretion by denying

Anhing’s request for further jurisdictional discovery regarding An N Cuong’s

contacts with California. See Martinez v. Aero Caribbean, 764 F.3d 1062, 1070

(9th Cir. 2014) (“[A] refusal [to grant discovery] is not an abuse of discretion when

it is clear that further discovery would not demonstrate facts sufficient to constitute

a basis for jurisdiction.” (quoting Wells Fargo & Co. v. Wells Fargo Express Co.,

556 F.2d 406, 430 n.24 (9th Cir. 1977))).

      5.     On cross-appeal, Viet Phu argues that the district court erred by

denying its motion for attorneys’ fees and costs under the Lanham Act, 15 U.S.C.

§ 1117(a). After the district court’s decision, we held that, following Octane

Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014), “district


                                            6
courts analyzing a request for fees under the Lanham Act should examine the

‘totality of the circumstances’ to determine if the case was exceptional, exercising

equitable discretion in light of the nonexclusive factors identified in Octane Fitness

and Fogerty [v. Fantasy, Inc., 510 U.S. 517 (1994)], and using a preponderance of

the evidence standard.” SunEarth v. SunEarth Solar Power, Nos. 13-17622,

15-16096, Slip. op. at 5-6 (9th Cir. Oct. 24, 2016) (en banc) (per curiam) (citation

omitted). Accordingly, we vacate and remand for the district court to reconsider its

decision in light of SunEarth.

      No. 14-56664: AFFIRMED.

      No. 14-56914: VACATED and REMANDED.




                                          7
                                                                            FILED
Anhing Corp. v. Viet Phu, Inc., Nos. 14-56664, 14-56914
                                                                            NOV 04 2016
Reinhardt, Circuit Judge, concurring:                                   MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


      1. I would reject Anhing’s claim that the district court abused its discretion

when it excluded evidence pertaining to the amount of damages suffered by

Anhing because the jury found no likelihood of confusion between the parties’

marks and thus no liability for Viet Phu.

      2. I would reject Anhing’s claim that the district court abused its discretion

by denying a request for a bench trial because the Supreme Court has rejected a

right to a bench trial even where only equitable relief is sought. See Beacon

Theatres, Inc. v. Westover, 359 U.S. 500, 510 & n.17 (1959) (citing Hurwitz v.

Hurwitz, 136 F.2d 796, 798-99 (D.C. Cir. 1943)); cf. Fitzgerald v. U.S. Lines Co.,

374 U.S. 16, 20 (1963).

      3. I fully agree with the majority’s disposition regarding Anhing’s

remaining arguments and Viet Phu’s cross-appeal.
