NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 31 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCO YAMMINE, No. 24-1390 D.C. No. Plaintiff-ctr-defendant - 2:21-cv-00093-MTL Appellant,

v. MEMORANDUM*

TOOLBOX FOR HR SPOLKA Z

OGRANICZONA

ODPOWIEDZIALNOSCIA SPOLKA

KOMANDYTOWA,

Defendant-ctr-claimant - Appellee.

Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding

Submitted March 27, 2025** Phoenix, Arizona

Before: GRABER and BENNETT, Circuit Judges, and LEFKOW, District Judge.***

* 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). *** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Plaintiff-Appellant Marco Yammine appeals the jury verdict and judgment in

favor of Defendant-Appellee Toolbox For HR Spolka Z Ograniczona

Odpowiedzialnoscia Spolka Komandytowa (Toolbox). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

1. Yammine’s challenge to the jury’s damages verdict is forfeited. Unitherm

Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006), establishes that “a

post-verdict motion under [Federal] Rule [of Civil Procedure] 50(b) is an absolute

prerequisite to any appeal based on insufficiency of the evidence.” Nitco Holding

Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007) (citing Unitherm, 546 U.S.

394). Following the jury’s verdict, Yammine made no post-verdict challenges to the

jury’s award of $500,000. Thus, his argument is barred.

2. Yammine’s evidentiary ruling challenges are not forfeited by his failure to

make a Rule 50(b) motion, because his evidentiary claims are not predicated on

insufficiency of the evidence. Yammine simply contends that the district court erred

in its evidentiary rulings. And Yammine preserved those arguments for appellate

review through his trial objections.

3. Toolbox claims Yammine did not sufficiently object to the introduction of

Exhibit 164 at trial. Initially, Exhibit 164 consisted of both an expert report and

attached business records. At the beginning of the trial, following Yammine’s

objection to the admission of Exhibit 164 in its entirety on the basis of untimely

2 24-1390 disclosure, the district court excluded the expert report portion of the exhibit but

denied Yammine’s motion to exclude the attached business records. When Toolbox

sought to admit Exhibit 164 later during trial, Yammine stated he had “[n]o

objection” to the admission of Exhibit 164. Toolbox now argues that this later failure

to object waived Yammine’s objection to Exhibit 164. We disagree.

“Once the court rules definitively on the record, either before or at trial, a

party need not renew an objection or offer of proof to preserve a claim of error for

appeal.” United States v. McElmurry, 776 F.3d 1061, 1066 (9th Cir. 2015) (quoting

Fed. R. Evid. 103(b)). Yammine’s original objection to the admission of Exhibit

164 was thus sufficient to preserve his challenge.

4. We review the district court’s evidentiary rulings for abuse of discretion.

United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011). “We do not reverse

the district court’s decisions under an abuse of discretion standard unless we are

‘convinced firmly that the reviewed decision lies beyond the pale of reasonable

justification under the circumstances.’” Boyd v. City & County of San Francisco,

576 F.3d 938, 943 (9th Cir. 2009) (quoting Harman v. Apfel, 211 F.3d 1172, 1175

(9th Cir. 2000)).

As Yammine conceded at trial, the challenged records were disclosed to his

counsel more than a year before trial. The only “lateness” involved the records being

labeled as a trial exhibit after the deadline. And the district court gave Yammine

3 24-1390 “the opportunity to identify anything out there that you feel like you would have

identified if you had known” about Toolbox’s intention to use Exhibit 164 at trial.

Yammine identified nothing. On appeal, he says he “could have countered [Exhibit

164] with a witness from Toolbox” he does not identify. The district court therefore

did not abuse its discretion in admitting the business records portion of Exhibit 164.

5. Yammine argues that Exhibit 113, an independent contractor agreement

between the parties that predated Yammine’s formal employment with Toolbox in

December 2018, should have been excluded under Federal Rules of Evidence 401

and 403. Yammine objected to the admission of Exhibit 113.

FRE 401 provides that evidence is relevant if “it has any tendency to make a

fact more or less probable than it would be without the evidence,” and “the fact is of

consequence in determining the action.” Fed. R. Evid. 401. This is a “low bar.”

Sandoval v. County of San Diego, 985 F.3d 657, 666 (9th Cir. 2021). Establishing

the existence of a professional relationship between Yammine and Toolbox before

December 2018 was necessary for discussing the full history of Yammine and

Toolbox. Exhibit 113 provided evidence of that relationship and the contours of the

relationship. The district court therefore did not abuse its discretion in rejecting the

FRE 401 relevance challenge.

Under FRE 403, the “court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of . . . unfair prejudice, confusing the

4 24-1390 issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403 (emphasis added). Yammine’s fiduciary

duties to Toolbox, the issue at trial, were not governed by the independent contractor

agreement. But given the parties’ need to discuss the history of Yammine and

Toolbox’s professional relationship before December 2018, the probative value of

Exhibit 113 was high.

And the risk of unfair prejudice, confusing the issues, or misleading the jury

was low. The independent contractor agreement provides that Yammine’s business

entity “shall perform . . . [s]ervices in a loyal and professional manner.” That

agreement does not impose a greater fiduciary duty on Yammine than the formal

employment agreement. The district court did not abuse its discretion in concluding

that the probative value of Exhibit 113 was not “substantially” outweighed by any

danger of prejudice and in rejecting Yammine’s FRE 403 challenge.

6. We deny Toolbox’s motion to dismiss the appeal and for attorneys’ fees

and costs. Dkt. 25. Toolbox requests dismissal claiming the appeal is frivolous. Id.

at 2–4. “An appeal is considered frivolous in this circuit when the result is obvious

or the appellant’s arguments are wholly without merit.” Glanzman v. Uniroyal, Inc.,

892 F.2d 58, 61 (9th Cir. 1989) (quoting McConnell v. Critchlow, 661 F.2d 116, 118

(9th Cir. 1981)). We find the issues on appeal substantial enough that we reject

Toolbox’s claim that the appeal was frivolous. That determination also disposes of

5 24-1390 one of Toolbox’s bases for seeking fees and costs—Federal Rule of Appellate

Procedure 38. Dkt. 25 at 5–6.

Toolbox also argues that it is entitled to fees and costs because Arizona law

provides for the recovery of attorneys’ fees in cases arising from contracts. See Dkt.

25 at 6–9; Ariz. Rev. Stat. § 12-341.01. But as the district court correctly

determined, Toolbox’s theory regarding Yammine’s alleged breach of fiduciary duty

sounded not in contract law (or in the terms of any contracts between Yammine and

Toolbox), but in tort. Toolbox is therefore not entitled to attorneys’ fees under

Arizona state law.

AFFIRMED. The parties shall bear their own costs on appeal.

6 24-1390