Bruce Remington v. John Mathson; Joy Mathson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE REMINGTON,
Plaintiff - Appellant,
v.
JOHN MATHSON; JOY MATHSON,
Defendants - Appellees.
No. 12-16530
D.C. No. 1:09-cv-04547-NJV
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Nandor J. Vadas, Magistrate Judge, Presiding**
Submitted May 13, 2014***
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Bruce Remington appeals pro se from the district court’s summary judgment
in his action alleging that his neighbors violated various federal environmental
FILED
MAY 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

statutes. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
summary judgment, Ass’n to Protect Hammersley, Eld, & Totten Inlets v. Taylor
Res., Inc., 299 F.3d 1007, 1009 (9th Cir. 2002), and for an abuse of discretion the
district court’s decision whether to exclude evidence as a discovery sanction, Yeti
by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1105 (9th Cir. 2001). We
affirm.
The district court properly granted summary judgment because Remington
failed to raise a genuine dispute of material fact as to whether defendants violated
various federal environmental laws. See Tucker ex rel. Tucker v. Interscope
Records, Inc., 515 F.3d 1019, 1032 n.l4 (9th Cir. 2008) (nonmoving party must
establish the existence of a genuine factual dispute on the basis of admissible
evidence).
The district court did not abuse its discretion in imposing discovery
sanctions on Remington because Remington’s failure to comply with expert
witness disclosures was neither substantially justified nor harmless. See Yeti by
Molly Ltd., 259 F.3d at 1106 (Fed. R. Civ. P. 37(c)(l) requires exclusion of
evidence unless the failure to disclose was substantially justified or harmless, and
does not require a finding of willfulness, fault, or bad faith); see also Hoffman v.
Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (Rule 37
12-16530 2

-- 2 of 3 --

sanctions are appropriate even if a litigant’s entire cause of action falls).
Moreover, Remington’s contention that the district court erred and violated his
right to due process by not granting his request for oral argument is unpersuasive,
as the district court was not required to do so under the local rules and
Remington’s opportunity to submit briefs was an “opportunity to be heard” within
the meaning of Rule 37(c)(1). Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d
1145, 1164-65 (9th Cir. 2003).
Remington’s contentions regarding the district court’s alleged bias, deficient
reasoning, inadequate warnings, and failure to issue lesser sanctions or to require a
meet and confer are unpersuasive.
Defendants’ motion to strike portions of Remington’s reply brief, filed on
April 3, 2013, is denied as moot.
AFFIRMED.
12-16530 3

-- 3 of 3 --