Bauer Bros. v. Nike, Inc.

MEMORANDUM

Bauer Bros. LLC appeals the district court’s exclusion of certain evidence pursuant to Federal Rule of Civil Procedure 37(c)(1) and its grant of summary judgment in favor of Nike, Inc. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm in part and reverse in part.

1. Reviewing for abuse of discretion, see Republic of Ecuador v. Mackay, 742 F.3d 860, 864 (9th Cir.2014), we find no error in the district court’s exclusion of Bauer Bros.’ untimely-disclosed silkscreen evidence on the ground that the evidence fell within the ambit of Bauer Bros.’ disclosure obligations pursuant to Federal Rule of Civil Procedure 26. Likewise, the district court did not abuse its discretion in finding that the untimely disclosure was not “substantially justified” or “harmless.” See Fed.R.Civ.P. 37(c)(1). We therefore affirm the district court’s exclusion of the silkscreen evidence.

2. Reviewing de novo, see Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1202 (9th Cir.2012), we find that the district court erred in granting summary judgment to Nike on the issue of priority of use. While Nike presented some evidence calling into question the date of first use in commerce…