NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 14 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TDN MONEY SYSTEMS, INC., No. 18-15022

Plaintiff-Appellant, D.C. No. 2:15-cv-02197-JCM-NJK v.

EVERI PAYMENTS, INC., FKA Global MEMORANDUM* Cash Access, Inc.,

Defendant-Appellee.

TDN MONEY SYSTEMS, INC., No. 18-16727

Plaintiff-Appellee, D.C. No. 2:15-cv-02197-JCM-NJK v.

EVERI PAYMENTS, INC., FKA Global Cash Access, Inc.,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted October 24, 2019 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CALLAHAN, OWENS, and R. NELSON, Circuit Judges.

Plaintiff-Appellant, TDN Money Systems, Inc. (“TDN”) seeks reversal of an

adverse jury verdict based on alleged errors in the district court’s treatment of a

perpetuity clause in a contract TDN had with Defendant-Appellee Everi Payments,

Inc., f/k/a Global Cash Access, Inc. (“GCA”). On cross-appeal, GCA seeks

reversal of the district court’s denial of attorneys’ fees and costs. We have

jurisdiction under 28 U.S.C. §§ 1291 and 1294(1), and we affirm.1

This case concerns: (1) two CEO friends in the casino business; (2) two

contracts the CEO friends entered into, three years apart, to govern their

companies’ business relationship; (3) a critical difference between those two

contracts; (4) a dispute arising from that critical difference after one friend sold his

company to a bigger company (GCA); (5) the district court’s treatment of that

critical difference at summary judgment and later at trial, where the jury entered a

general verdict in favor of GCA; and (6) despite that verdict, the district court’s

denial of attorneys’ fees and costs to GCA, the prevailing party.

We review each of the issues TDN raises for abuse of discretion and reverse

the jury’s verdict only if the district court’s exercise of discretion is both erroneous

and prejudicial. City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1065 (9th

1 Because the parties are familiar with the facts of this case, we do not discuss them at length here.

2 Cir. 2017) (district court’s evidentiary rulings and its decisions regarding the

preclusive effect of a pretrial order); Peralta v. Dillard, 744 F.3d 1076, 1088 (9th

Cir. 2014) (en banc) (district court’s reconsideration of summary judgment ruling);

Dang v. Cross, 422 F.3d 800, 804-05 (9th Cir. 2005) (district court’s formulation

of jury instructions in a civil case where there is no allegation that the instructions

misstated the law). We review the district court’s denial of attorneys’ fees and

costs for abuse of discretion. Williams v. Gaye, 895 F.3d 1106, 1132-33 (9th Cir.

2018).

1. We reject TDN’s argument that the district court committed reversible

error by allowing GCA to focus on a mistake theory that was not in the pretrial

order or GCA’s answer. Pretrial orders are construed liberally to permit any issues

at trial that are embraced within their language, and a district court’s decision

regarding the preclusive effect of a pretrial order on issues of law and fact at trial

will not be disturbed absent a clear abuse of discretion. Miller v. Safeco Title Ins.

Co., 758 F.2d 364, 368 (9th Cir. 1985) (discussing Fed. R. Civ. P. 16(e)). A

primary purpose of pretrial orders is to prevent unfair surprise by providing “fair

notice” and “a fair opportunity to present evidence refuting” the opposing party’s

theories of liability or non-liability. DP Aviation v. Smiths Indus. Aerospace &

Def. Sys. Ltd., 268 F.3d 829, 842-44 (9th Cir. 2001). Cir. 1981), there was neither a substantial departure from the pretrial order nor any

unfair surprise, as: (1) TDN itself raised the issue of whether Section 16 of the

agreement was intentional (i.e., not mistaken) in its complaint; (2) this issue was

reflected throughout the parties’ pretrial motions, pleadings, trial briefs, and the

joint pretrial order; (3) TDN’s CEO essentially conceded that Section 16 was a

mistake in the course of pretrial litigation; (4) GCA expressly alleged Section 16

was a mistake in its trial brief; (5) during opening statements, TDN said the

evidence would show that the plain language of the agreement “does not reflect the

actual understanding of the parties contractually”; and (6) it was TDN’s own

witness who testified that Section 16 was a mistake. Accordingly, the district court

was not required to amend the pretrial order or examine the factors for doing so.

Regardless, there was no prejudice because: (1) TDN had a fair opportunity

to present evidence refuting the notion that Section 16 was a mistake; (2) TDN

consented to the district court’s proposed jury instruction on ambiguous contract

interpretation; (3) the district court sustained TDN’s objection to GCA’s proposed

jury instruction on the affirmative defense of mistake; and (4) under the dealer

resale agreement, GCA had the right to compete with TDN via direct sales in

TDN’s non-exclusive territory.

2. We also reject TDN’s claim that the district court erroneously

4 reconsidered its partial summary judgment order without amending the pretrial

order or considering the factors for doing so. We have long held that the law-of-

the-case doctrine does not prevent district courts from reconsidering pretrial orders,

including summary judgment orders, at any time during trial. See Peralta, 744

F.3d at 1088; City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 888

(9th Cir. 2001). TDN offers no support for its argument that the district court’s

broad authority to reconsider its pretrial ruling was constrained by Fed. R. Civ. P.

16 or this court’s precedent concerning the preclusive effect of pretrial orders.

3. TDN has not shown that the district court unfairly prevented it from

introducing evidence that GCA itself wrote Section 16 of the agreement. Both

witnesses TDN sought to elicit this information from lacked personal knowledge of

the documents TDN sought to introduce, and therefore the district court properly

sustained objections to that testimony. See Fed. R. Evid. 602.

4. Finally, we reject TDN’s argument that the district court’s omission of

GCA’s proposed jury instruction on the meaning of Section 16 rendered the final

jury instructions “an incomplete, and therefore incorrect, statement of the law.”

Norwood v. Vance, 591 F.3d 1062, 1066 (9th Cir. 2010). GCA’s proposed jury

instruction paraphrased the operative part—the second sentence—of Section 16,

while omitting the first sentence that discussed the initial term of the agreement.

Contrary to TDN’s assertion, the proposed instruction did not state TDN’s “theory

5 of the case.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Nor did it

prevent TDN from arguing that the parties intended to be bound by Section 16

despite their failure to give notice of intent to renew in 2011, 2012, and 2013.

Accordingly, the district court did not abuse its discretion by omitting the

instruction and allowing the parties (and the jury) to focus on the plain language of

the contract.

5. We also reject GCA’s assertion that the district court erred in denying

attorneys’ fees and costs under Nevada’s offer-of-judgment rule (Nev. R. Civ. P.

68), the parties’ agreement, and Nevada’s statutory scheme.

First, GCA has not shown that the district court misapplied Nevada’s offer-

of-judgment rule under the four-factor test set forth in Beattie v. Thomas, 668 P.2d

268, 274 (Nev. 1983). Nothing in the record persuades us that the district court’s

analysis of the first three Beattie factors (the so-called “good faith” factors) was

mistaken, and we do not think that the district court “disregard[ed] guiding legal

principles” when it concluded that it could not analyze the fourth Beattie factor

(the reasonableness of GCA’s fee request) because GCA failed to break out its

post-offer costs and attorneys’ fees. Flamingo Realty, Inc. v. Midwest Dev., Inc.,

879 P.2d 69, 74 (Nev. 1994). On appeal, GCA claims for the first time that its cost

breakdown shows a total of $306,852.50 in post-offer fees and $26,886.07 in post-

offer costs. But these figures were not in its motion or reply before the district

6 court, and even now GCA justifies these costs by citing 120 pages from the

excerpts of record containing numerous invoices relating to pre-offer fees and

costs. See LR 54-14(b)(1)-(2) (requiring “[a]n itemization of all costs sought to be

charged as part of the fee award”). GCA points to no rule, statute, or case

requiring a court to sift through hundreds of pages of invoices and make an

independent determination of how much a prevailing party reasonably should have

asked for under Fed. R. Civ. P. 54(d).

Second, we agree with the district court that the plain language of the

dispute resolution clause only contemplated fees and costs following a final

decision in arbitration, and here that necessary precondition never occurred. We

also agree that the joint stipulation only provided that “[n]o party is waiving any

arguments or defenses on the merits,” and we are aware of no controlling

precedent that says such language encompasses post-merits fees and costs awards.

Finally, GCA waived its argument that it is entitled to nontaxable costs

under Nevada’s statutory scheme by failing to comply with the filing timelines set

forth in Rule 54(d) and Local Rules 54-1 and 54-12. See Walker v. California, 200

F.3d 624, 626 (9th Cir. 1999).

The jury’s verdict in favor of GCA is AFFIRMED. The district court’s

denial of attorneys’ fees and costs to GCA is AFFIRMED.

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