                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             MAR 09 2017
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


PJY ENTERPRISES, LLC, a Hawaii                   No.   14-16016
limited liability company; MIKE, INC.,
a Hawaii corporation; ALOHA                      D.C. No.
ARCADE, INC., a Hawaii corporation;              1:12-cv-00577-LEK-RLP
GS ENTERTAINMENT, INC., a
Hawaii corporation,
                                                 MEMORANDUM*
              Plaintiffs-Appellants,

 v.

KEITH M. KANESHIRO, in his official
capacity as the Prosecuting Attorney of
the City and County of Honolulu;
LOUIS M. KEALOHA, in his official
capacity as the Chief of Police of the
City and County of Honolulu; AARON
YOUNG; HONOLULU POLICE
DEPARTMENT,

              Defendants-Appellees.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                     Argued and Submitted February 21, 2017


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                  page 2
                                  Honolulu, Hawaii

Before:      KOZINSKI, HAWKINS and BEA, Circuit Judges.

      1. The district court properly granted summary judgment to the Honolulu

Police Department, Keith M. Kaneshiro, Louis M. Kealoha and Aaron Young on

whether the Products Direct Sweepstakes (PDS) terminals that the Honolulu Police

Department seized from plaintiffs’ arcades constituted “gambling devices” within

the meaning of Hawaii Revised Statute section 712-1220. The undisputed

statistical and episodic evidence in the record establishes that only a small portion

of the discount coupons obtained from the PDS terminals were ever registered on

the Products Direct website, and only a small portion of the registered coupons

were ever used to purchase merchandise. This shows that the terminals were not

used to buy discount coupons but rather to “stake[] or risk[] something of value”

for the potential cash prize. Haw. Rev. Stat. § 712-1220.


      2. The evidentiary challenges plaintiffs raise don’t affect our analysis. First,

plaintiffs argue that the district court erroneously determined that Detectives

Young and Solon never received the items that they ordered from the Products

Direct website. But the fact that the detectives eventually received their items

almost two months after they placed their orders—and after they made the
                                                                                 page 3
declarations at issue—is insufficient to create a genuine dispute of material fact

regarding the bona fide nature of the website.

      Second, plaintiffs’ challenge that the district court erroneously excluded

plaintiffs’ evidence regarding the sale of coupon books is equally futile. The types

of products that were being sold or the relative popularity of each item is irrelevant

to whether the users of the PDS terminals were “gambling” or buying discount

coupons.

      Third, the district court properly relied on personal observations contained in

the declarations of Detectives Young and Solon and of Chad Teruya. Although

these observations related to Winner’z Zone arcades, owned and operated by the

plaintiffs who are not parties to this appeal, nothing in the record suggests that the

PDS terminals in Lucky Zone arcades operated differently or that customers at

Lucky Zone arcades behaved differently.

      Finally, the paragraph in Detective Young’s declaration describing what the

users of the PDS terminals told him may have been hearsay. But, in light of the

other undisputed evidence, the district court’s failure to exclude this evidence was

not prejudicial. See Ambat v. City & Cty. of San Francisco, 757 F.3d 1017, 1032

(9th Cir. 2014).
                                                                                 page 4
      3. Nor did the district court abuse its discretion in applying its local rule

56.1. Even if the district court departed from the strict language of its local rule,

the departure didn’t affect the substantial rights of either party. See Prof’l

Programs Grp. v. Dep’t of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994).


      AFFIRMED.
