                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 27 2015

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



                            FOR THE NINTH CIRCUIT


HUONG HOANG,                                     No. 13-35390

              Plaintiff - Appellant,             D.C. No. 11-cv-01709-MJP

  v.
                                                 MEMORANDUM*
IMDB.COM, INC,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Marsha J. Pechman, District Judge, Presiding

                      Argued and Submitted February 6, 2015
                               Seattle, Washington

Before: BEA and MURGUIA, Circuit Judges, and ORRICK, District Judge.**

       Plaintiff-appellant Huong Hoang, an actress, subscribed to IMDbPro, a paid

service operated by defendant-appellee IMDb.com (“IMDb”) which provides

information about film and television industry professionals. Her subscription was


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable William Orrick, United States District Judge for the
Northern District of California, sitting by designation.
governed by a Subscriber Agreement. Hoang sued IMDb for breach of contract,

alleging that IMDb violated the Subscriber Agreement by using her confidential

information to run a public records search to discover her real age and publishing

her real age on its website without her consent, damaging her acting career.

Following a jury verdict for IMDb, Hoang appeals on two grounds: the district

court abused its discretion when it denied Hoang’s motion to reopen discovery

after her counsel’s “gross negligence,” and the district court improperly instructed

the jury that Hoang bore the burden of proving, as an element of her breach of

contract claim, that she had performed her obligations under the Subscriber

Agreement. We have jurisdiction under 28 U.S.C. § 1291. We affirm the district

court.

         1. Hoang’s counsel did not commit gross negligence in the conduct of

discovery. His conduct reflects strategic decisions, not gross negligence. Hoang

may regret those decisions now, but that is not a basis to redo them. Cf. Latshaw v.

Trainer Wortham & Co., 452 F.3d 1097, 1099 (9th Cir. 2006). It was well within

the district court’s discretion not to reopen discovery. See Lane v. Dep’t of

Interior, 523 F.3d 1128, 1134 (9th Cir. 2008).




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      2. We review de novo a claim that jury instructions misstated the law.

Hazle v. Crofoot, 727 F.3d 983, 990 (9th Cir. 2013). The district court judge

instructed the jury that Hoang bore the burden of proving, as an element of her

breach of contract claim, that she was not in material breach of the Subscriber

Agreement. Hoang contends that this instruction was erroneous because her

alleged breach of the Subscriber Agreement was an affirmative defense that IMDb

had the burden to prove.

      “We presume prejudice where civil trial error is concerned and the burden

shifts to the defendant to demonstrate that it is more probable than not that the jury

would have reached the same verdict had it been properly instructed.” Sanders v.

City of Newport, 657 F.3d 772, 781 (9th Cir. 2011) (quoting Dang v. Cross, 422

F.3d 800, 811 (9th Cir. 2005)). However, an error in instructing the jury in a civil

case does not require reversal if the error “is more probably than not harmless.” Id.

Here, we do not need to reach whether the instruction was given in error because

the jury more likely than not found that IMDb did not breach the Subscriber

Agreement, wholly independent of whether or not Hoang performed her own

obligations under the Subscriber Agreement. In other words, any error was

harmless.




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      We come to that conclusion on three grounds. First, the jury more likely

than not concluded that the Subscriber Agreement permits and contemplates

exactly what IMDb did, i.e., use the name Hoang provided to IMDb to improve the

accuracy of the information on the site and to respond to her requests. Second, the

jury more likely than not concluded that running Hoang’s legal name through a

public records database did not constitute “sharing” Hoang’s confidential

information in a manner prohibited by the Subscriber Agreement. Third, the jury

more likely than not concluded that IMDb’s publication of Hoang’s true birthdate,

which it obtained from a public records database, did not breach the Subscriber

Agreement.

AFFIRMED.1




1
  The motions for leave to file amici curiae briefs by Film and Television writers
David Ransil, Brad Markowitz, Steven Tag Mendillo and Mark Lisson and Screen
Actors Guild - American Federation of Television & Radio Artists and Writers
Guild of America, West, Inc. are denied since they do not address the grounds of
the appeal.

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