                                                                          FILED
                           NOT FOR PUBLICATION
                                                                          MAR 03 2017
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


WILLIAM F. ARMSTRONG,                           No.    15-15818

             Plaintiff-Appellee,                D.C. No.
                                                1:12-cv-00105-ACK-BMK
 v.

NAN, INC.,                                      MEMORANDUM*

             Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                     Alan C. Kay, District Judge, Presiding

                          Submitted February 23, 2017**
                               Honolulu, Hawaii

Before: KOZINSKI, HAWKINS, and BEA, Circuit Judges.

      Defendant-appellant Nan, Inc. (“Nan”) appeals the district court’s order

dismissing plaintiff-appellee William Armstrong’s (“Armstrong”) state law age

discrimination claim without prejudice. We affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       Before Armstrong's federal age discrimination claims went to trial, the district

court exercised its discretion to dismiss his pendant state law age discrimination claim

without prejudice. The court concluded that because of the divergence of elements

and remedies available under federal versus Hawaii state law, state law remedies

would predominate and there was a substantial risk of jury confusion in evaluating

and applying the divergent law to the two age discrimination claims. Because this was

not an abuse of discretion, we affirm. See 28 U.S.C. § 1367(c)(2), (4); Cancellier v.

Federated Dep't Stores, 672 F.2d 1312, 1318 (9th Cir. 1982).

       To the extent Nan argues Armstrong should be precluded from seeking punitive

damages or pain and suffering damages in state court because he failed to develop

such a claim in federal court, that is an issue for the state court to address in the first

instance should Armstrong elect to refile in state court, and we express no opinion on

the merits of this argument.

       AFFIRMED.




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