                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUL 19 2019
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

PNY TECHNOLOGIES, INC.,                          No.   17-15732

                Plaintiff-Appellant,             D.C. No. 3:15-cv-01728-MMC

 v.
                                                 MEMORANDUM*
MILLER, KAPLAN, ARASE & CO, LLP,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Northern District of California
                   Maxine M. Chesney, District Judge, Presiding

                        Argued and Submitted July 10, 2019
                                Portland, Oregon

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

      PNY Technologies, Inc. (“PNY”) appeals from the district court’s denial of

its motion for a new trial in its diversity action against Miller, Kaplan, Arase &

Co., LLP (“Miller Kaplan”). We review for abuse of discretion the district court’s

denial of a motion for a new trial, Flores v. City of Westminster, 873 F.3d 739,

755-56 (9th Cir. 2017), its imposition of discovery sanctions, R & R Sails, Inc. v.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Ins. Co. of Pa., 673 F.3d 1240, 1245 (9th Cir. 2012), and its handling of closing

argument, Larez v. Holcomb, 16 F.3d 1513, 1520-21 (9th Cir. 1994). As the

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

      1.     The district court did not abuse its discretion by denying PNY’s

motion for a new trial based on the court’s exclusion of certain emails as a

discovery sanction under Federal Rule of Civil Procedure 37(c)(1). PNY’s late

disclosure of the emails was not harmless because Miller Kaplan would have had

to depose additional witnesses while preparing for trial. See Yeti by Molly Ltd. v.

Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).

      Contrary to PNY’s contention, the exclusion of the emails was not

tantamount to a dismissal of PNY’s claim for lost profits. Therefore, the district

court was not required to consider whether the late disclosure involved willfulness,

fault, or bad faith, and the availability of lesser sanctions, such as continuing the

trial to allow additional limited discovery about the emails. See R & R Sails, Inc.,

673 F.3d at 1247. PNY introduced witness testimony to support its claim for lost

profit damages. Here, the discovery “sanction, although onerous, was less than a

dismissal.” Yeti by Molly Ltd., 259 F.3d at 1106.

      2.     The district court also did not abuse its discretion by denying PNY’s

motion for a new trial based on a statement made by Miller Kaplan during closing

argument. The court acted within its discretion by determining that the statement


                                           2
was not misleading or contrary to the court’s prior limitation on Miller Kaplan’s

closing argument. PNY’s reliance on Anheuser-Busch, Inc. v. Natural Beverage

Distributors, 69 F.3d 337 (9th Cir. 1995), and Globefill Inc. v. Elements Spirits,

Inc., 640 F. App’x 682 (9th Cir. 2016) (unpublished decision), is misplaced

because those cases involved more egregious conduct.

      AFFIRMED.




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