                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 29 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CHARLES C. SUNG, MD, a married man,              No. 13-35896

              Plaintiff - Appellant,             D.C. No. 2:11-cv-05163-RMP

 v.
                                                 MEMORANDUM*
MISSION VALLEY RENEWABLE
ENERGY, LLC, a Delaware limited
liability company doing business in the
State of Washington; WILLIAM
MCKAY, individually and the marital
community; CYNTHIA MCKAY,
individually and the marital community;
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Receiver for Bank of
Whitman,

              Defendants - Appellees.


                  Appeal from the United States District Court
                     for the Eastern District of Washington
             Rosanna Malouf Peterson, Chief District Judge, Presiding

                      Argued and Submitted October 15, 2015
                               Seattle, Washington

Before: KOZINSKI, W. FLETCHER, and FISHER, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Dr. Charles Sung appeals the district court’s imposition of sanctions for his

discovery violations. We affirm.

       The district court did not abuse its discretion in imposing monetary

sanctions. See Fed. R. Civ. P. 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor

Corp., 259 F.3d 1101, 1105 (9th Cir. 2001). Dr. Sung violated Federal Rule of

Civil Procedure 26 when he attempted to reform his proposed trial exhibits to

include documents that were not previously disclosed. Dr. Sung never provided a

justification for his failure to disclose these documents. Furthermore, his error was

not harmless. Dr. Sung’s inclusion of previously undisclosed documents in his

reformed trial exhibits disrupted the district court’s schedule and imposed

additional costs on the defendants, who were forced to respond to the

nondisclosure. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d

1217, 1227-28 (9th Cir. 2006); Wong v. Regents of the Univ. of Cal., 410 F.3d

1052, 1062 (9th Cir. 2005) (“Disruption to the schedule of the court and other

parties . . . is not harmless.”).

       The district court also did not abuse its discretion in dismissing the case.

The additional documents Dr. Sung failed to disclose were relevant. For example,

many of the documents tended to show that Dr. Sung was a relatively sophisticated

investor, thus undermining his claim that he reasonably relied on Mr. McKay’s


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alleged misrepresentations. See Stewart v. Estate of Steiner, 93 P.3d 919, 922

(Wash. Ct. App. 2004). The district court did not abuse its discretion in finding

Dr. Sung’s nondisclosure was the result of “willfulness, bad faith, or fault” because

the documents Dr. Sung failed to disclose were within his control, and he failed to

turn them over. See Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir.

2002). The district court also properly considered the “Malone” factors. Malone v.

U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987); Adriana Int’l Corp. v.

Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). The district court did not err in

determining that the defendants suffered prejudice. The defendants were forced to

prepare for trial without full information, and they would have been forced to incur

additional costs if this case had continued after the reopening of discovery. See

Payne v. Exxon Corp., 121 F.3d 503, 508 (9th Cir. 1997). The district court

properly considered lesser sanctions and did not abuse its discretion in determining

that alternative sanctions were inadequate in light of the already lengthy litigation

in this case and Dr. Sung’s previous discovery violation.

      AFFIRMED.




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