                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 18 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LARRY EDWARD DILLON,                             No. 08-17759

              Plaintiff - Appellee,              D.C. No. 3:03-cv-00203-ECR-
                                                 RAM
  v.

WEST PUBLISHING CORPORATION;                     MEMORANDUM *
WEST GROUP; THOMPSON
CORPORATION; THOMPSON LEGAL
PUBLISHING CORPORATION,

              Defendants - Appellants.



LARRY EDWARD DILLON,                             No. 09-15055

              Plaintiff - Appellant,             D.C. No. 3:03-cv-00203-ECR-
                                                 RAM
  v.

WEST PUBLISHING CORPORATION;
WEST GROUP; THOMPSON
CORPORATION; THOMPSON LEGAL
PUBLISHING CORPORATION,

              Defendants - Appellees.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Appeal from the United States District Court
                               for the District of Nevada
                    Edward C. Reed, Senior District Judge, Presiding

                           Argued and Submitted April 13, 2010
                                San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and MOODY, Senior
District Judge.**

       West Publishing Corp. and related companies (“West”) appeal the district

court’s judgment in favor of Larry Dillon in his action under the Age

Discrimination in Employment Act (“ADEA”).

       West appeals the district court’s ruling of the motion to dismiss and motion

to amend the complaint. Dillon cross appeals the district court’s judgment as a

matter of law on the issue of willfulness. In a post-briefing motion, West appeals

the judgment for Dillon based upon an erroneous jury instruction given by the

district court at the first trial.

I.     Service of Process

       West was served in state court prior to removal. Therefore, service of

process should have been analyzed under Nevada law not federal law. Under

Nevada Rule of Civil Procedure 4, “[d]ismissal is mandatory unless there is a



        **
             The Honorable James Maxwell Moody, Senior United States District
Judge for the District of Arkansas, sitting by designation.

                                           2
legitimate excuse for failing to serve within the 120 days. The determination of

good cause is within the district court's discretion.” Scrimer v. Eighth Judicial

Dist. Court ex rel. County of Clark, 998 P.2d 1190, 1193-94 (Nev. 2000) (internal

citations omitted).

      Accordingly, the district court’s denial of West’s motion to dismiss for

failure to timely serve the Summons and Complaint is reversed. The case is

remanded to the district court with directions to analyze Dillon’s failure to timely

serve and to make a determination, if necessary, as to whether Dillon has shown

good cause for the failure to timely serve under Nevada law. We consider the

remaining issues on appeal in the event the district court determines dismissal is

not required.

II.   Amendment of the Complaint

      West appeals the district court’s decision to allow Dillon to amend his

complaint to add his ADEA claim. West argues that the ADEA claim was time-

barred because it was added one year after Dillon received his right to sue letter.

The district court allowed the amendment and found that the ADEA claim was not

barred by the statute of limitations because the claim related back to the date of the

original complaint pursuant to Federal Rule of Civil Procedure 15(c). The Court

applies the relation-back doctrine if the new claim arises from the same “conduct,


                                           3
transaction, or occurrence” as the original claim. F ED. R. C IV. P. 15(c)(1)(B). The

district court did not abuse its discretion by allowing the amendment to relate back

to Dillon’s original complaint under Rule 15(c).

       Dillon was not issued a right to sue letter by the EEOC on his ADEA claim

until after he filed suit. Commencement of an ADEA or Title VII claim without a

right to sue letter is grounds for dismissal of the action. See Wrighten v. Metro.

Hosp., Inc., 726 F.2d 1346, 1351 (9th Cir. 1984). A complainant, nevertheless,

may file an action prior to receiving her right to sue letter, provided the state was

not precluded from performing its administrative duties or that the defendant was

prejudiced. Id. Here, there has been no showing that West was prejudiced by the

late filing of the right to sue letter or that the state was precluded from performing

any administrative duties.

III.   The Testimony of John Cloutier

       Before trial, Magistrate Judge Robert A. McQuaid, Jr. ruled that Dillon

could not use the Cloutier testimony in his case-in-chief because of Dillon’s failure

to make adequate disclosures under Federal Rule of Civil Procedure 26(a) and (e).

At trial, Dillon was allowed to present the Cloutier admission testimony on

rebuttal.




                                           4
       Although Rule 37(c)(1) states that a party failing to provide information

required by Rule 26(a) or (e) should not be allowed to use that information at trial,

“Federal Rule of Civil Procedure 37(b)(2) gives a district judge discretion to ‘make

such orders . . . as are just’ in regard to a party's failure to obey a discovery order . .

. .” Valley Eng’r Inc. v. Electric Eng’g Co., 158 F.3d 1051, 1056 (9th Cir. 1998)

(first alteration in the original). The district court did not abuse its discretion by

imposing the sanction.

       In the alternative, West argues that the district court erred in finding that

Cloutier’s testimony was proper rebuttal evidence. The district court correctly

determined that testimony by Rose Titus, Dillon’s former co-worker, elicited by

West, opened the door as to what Kennedy told John Cloutier regarding the reason

Dillon was terminated. It was within the district court’s discretion to allow

Cloutier to testify regarding his statements to Titus.

IV.    Evidence of Dillon’s Felony Fraud Conviction

       The district court did not abuse its discretion by excluding Dillon’s fourteen-

year-old criminal conviction.

V.     Damages Calculation at Second Trial

       West contends that the district court erred when it allowed Dillon to submit a

new damage calculation for the second trial on damages. The court cited Federal


                                             5
Rule of Civil Procedure 26(a)(1) which requires the disclosure of a computation of

each category of damages claimed by the disclosing party, and Rule 26(e) which

requires disclosing parties to supplement their prior disclosures “in a timely

manner” when the prior response is “incomplete or incorrect.” The court noted

that it had the authority to prevent a violating party from introducing any

undisclosed evidence at trial. However, a court may instead “impose other

appropriate sanctions.” F ED. R. C IV. P. 37(c)(1)(C). The district court’s decision

was well reasoned and within its discretion.

VI.   Willfulness

      Viewed in its entirety, the evidence presented at trial was sufficient to

support the district court’s decision to grant judgment as a matter of law on the

issue of willfulness. There was no evidence presented at trial that the decision

makers, other than Kennedy, had a discriminatory motive or acted with knowing or

reckless disregard of the ADEA's requirements. There was no evidence that

Kennedy unilaterally made the decision to terminate Dillon or that Kennedy alone

had the authority to terminate Dillon.

VII. Jury Instructions

       The United States Supreme Court decided Gross v. FBL Fin’l Servs. Inc.,

129 S.Ct. 2343 (2009), while this case was on appeal. According to Gross, an


                                          6
ADEA plaintiff is required to prove that his age was the “but-for” cause of his

termination whether the plaintiff relies on direct evidence or pretext to prove his

case. We asked for supplemental briefing and conclude there was instructional

error in the jury instructions requiring reversal.

      The district court did not use the “but-for” requirement in its instruction to

the jury. Because neither party objected to the jury instructions as given by the

district court at trial, Dillon argues that West has waived its right to appeal the

instructions. This court will exercise its discretion to reach the issue because Gross

required a change in the law of the circuit and Dillon does not dispute that the

instructions were erroneous under Gross.

      Dillon argues that the instruction given by the district court was harmless

because the instructions as a whole were adequate. After a review of the jury

instructions, it is clear that the jury was repeatedly instructed that age had to be a

“motivating factor” in West’s decision to terminate Dillon. The term was included

in the elements instruction and was repeated on the verdict form. Furthermore,

West’s counsel repeated the term in his closing argument. The instructions were

erroneous and that error requires a new trial in light of Gross.




                                            7
                                  CONCLUSION

      The district court erroneously applied federal law instead of Nevada law on

the issue of timely service of process. Therefore, we reverse the district court’s

denial of West’s motion to dismiss for failure to timely serve process and remand

to the district court to make the determination pursuant to Nevada law. In the

event the district court determines service was not untimely, a new time limit is

required as a result of instructional error under Gross. The judgment is otherwise

affirmed.    The case is REVERSED in part; REMANDED in part; and

AFFIRMED in part. Each party shall bear its own costs.




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