NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 17 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALLEN F. SCOTTO, No. 19-15869

Plaintiff-Appellant, D.C. No. 2:17-cv-02838-DGC

v.

MEMORANDUM*

GORILLA LADDER COMPANY, AKA

Gorilla Ladders, a Minnesota Corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Submitted June 12, 2020** San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and BURGESS,*** District Judge.

In this diversity suit, Allen Scotto sought damages from Tricam Industries,

* 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 Timothy M. Burgess, United States Chief District Judge for the District of Alaska, sitting by designation. Inc., Home Depot U.S.A., Inc., and Gorilla Ladder Co. (collectively, “Tricam”) for

personal injuries caused by an allegedly defective ladder. After Scotto timely

disclosed an expert report, each side subsequently disclosed expert reports after the

deadlines in the district court’s scheduling orders. Scotto’s rebuttal expert disclosure

was also noncompliant with the case management order’s requirements of one expert

per side and complete expert reports. Tricam also filed an untimely motion for

summary judgment. As a sanction for the parties’ violations of multiple case

management order requirements, the district court proposed striking Scotto’s

untimely disclosed rebuttal expert, limiting each side to one expert, and summarily

denying Tricam’s summary judgment motion. The court entered the proposed order

after Scotto’s counsel agreed that it was “fair,” and “makes sense.” Citing the order,

the district court later denied Scotto’s motion in limine to exclude Tricam’s expert

as untimely disclosed. A jury found for Tricam, and the district court denied Scotto’s

motion for a new trial. We have jurisdiction over Scotto’s appeal under 28 U.S.C.

§ 1291 and affirm.

1. The district court did not abuse its discretion in denying Scotto’s motion

in limine to preclude the testimony of Tricam’s late-disclosed expert. See Zivkovic

v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (stating standard of

review). Although Tricam did not show good cause for the untimely disclosure of

the expert report, the district court had the broad discretion to enter “any just orders,”

2 including sanctions less severe than exclusion of the testimony. Fed. R. Civ. P.

16(f)(1); see Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir. 1997) (reviewing

preclusion order). We assess “whether a sanction is proper under a five-factor test

analyzing: 1) the public’s interest in expeditious resolution of litigation; 2) the

court’s need to manage its docket; 3) the risk of prejudice to the [other side]; 4) the

public policy favoring disposition of cases on their merits; 5) the availability of less

drastic sanctions.” Wendt, 125 F.3d at 814 (citing Wanderer v. Johnston, 910 F.2d

652, 656 (9th Cir. 1990)). The “key factors are prejudice and availability of lesser

sanctions.” Wanderer, 910 F.2d at 656. The district court properly weighed these

“key factors,” essentially agreeing with the comments of Scotto’s counsel and

finding that the sanctions chosen were “proportional” and fairly “affected each side.”

2. For the same reasons, the district court also did not abuse its discretion

in denying Scotto’s motion for a new trial. See Molski v. M.J. Cable, Inc., 481 F.3d

724, 728 (9th Cir. 2007) (stating standard of review). Scotto argued that the district

court abused its discretion by not allowing the testimony of Scotto’s second expert,

whose report was not timely filed, but allowing Tricam’s expert to testify despite a

similarly late filing. The district court properly concluded that the parties’ mutual

sanctions, though different in kind, were “fair” and “balanced.” Moreover, as the

district court noted, Scotto “was allowed to present a retained ladder expert at trial,

and the jury considered the opinions of that expert in reaching a defense verdict.”

3 The exclusion of Scotto’s rebuttal expert did not produce “a miscarriage of justice.”

Id. (quoting Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493,

510 n.15 (9th Cir. 2000)).

AFFIRMED.

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