William F. Armstrong v. Nan, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM F. ARMSTRONG,
Plaintiff-Appellee,
v.
NAN, INC.,
Defendant-Appellant.
No. 15-15818
D.C. No.
1:12-cv-00105-ACK-BMK
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted February 23, 2017**
Honolulu, Hawaii
Before: KOZINSKI, HAWKINS, and BEA, Circuit Judges.
Defendant-appellant Nan, Inc. (“Nan”) appeals the district court’s order
dismissing plaintiff-appellee William Armstrong’s (“Armstrong”) state law age
discrimination claim without prejudice. We affirm.
FILED
MAR 03 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Before Armstrong's federal age discrimination claims went to trial, the district
court exercised its discretion to dismiss his pendant state law age discrimination claim
without prejudice. The court concluded that because of the divergence of elements
and remedies available under federal versus Hawaii state law, state law remedies
would predominate and there was a substantial risk of jury confusion in evaluating
and applying the divergent law to the two age discrimination claims. Because this was
not an abuse of discretion, we affirm. See 28 U.S.C. § 1367(c)(2), (4); Cancellier v.
Federated Dep't Stores, 672 F.2d 1312, 1318 (9th Cir. 1982).
To the extent Nan argues Armstrong should be precluded from seeking punitive
damages or pain and suffering damages in state court because he failed to develop
such a claim in federal court, that is an issue for the state court to address in the first
instance should Armstrong elect to refile in state court, and we express no opinion on
the merits of this argument.
AFFIRMED.
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