Silver State Broadcasting, LLC; v. MICHAEL J. BERGNER, DBA Bergner & Co

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVER STATE BROADCASTING, LLC;
et al.,
Plaintiffs-Appellants,
v.
MICHAEL J. BERGNER, DBA Bergner &
Co,
Defendant-Appellee.
No. 16-16753
D.C. No.
2:11-cv-01789-APG-CWH
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted December 5, 2017**
San Francisco, California
Before: OWENS and FRIEDLAND, Circuit Judges, and BUCKLO,*** District
Judge.
Plaintiffs Silver State Broadcasting, LLC, Royce International Broadcasting
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Elaine E. Bucklo, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
DEC 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Corporation, and Golden State Broadcasting, LLC (collectively, “the
Broadcasters”) appeal from the district court’s order granting summary judgment
to defendant Michael Jay Bergner on the Broadcasters’ claim that Mr. Bergner
breached his fiduciary duty to them by brokering radio-station acquisitions for
competitor broadcasters. The Broadcasters argue that the district court abused its
discretion by excluding evidence of the Broadcasters’ damages as a discovery
sanction. In turn, they argue, the district court erred in granting summary
judgment to Mr. Bergner on the grounds that the Broadcasters had failed to meet
the damages element of their breach-of-fiduciary-duty claim against Mr. Bergner.
As the parties are familiar with the facts, we do not recount them here. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The Broadcasters violated Fed. R. Civ. P. 26(a)(1)(A)(iii) by failing to
include a damages computation in their initial disclosures, and the district court did
not clearly err in finding that this discovery violation was not harmless. See Payne
v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997); Hoffman v. Constr. Protective
Servs., 541 F.3d 1175, 1180 (9th Cir. 2008). Accordingly, the district court was
authorized to sanction the Broadcasters under Fed. R. Civ. P. 37(c)(1).
Because the district court expressly found that the Broadcasters’ discovery
violation was willful and that lesser sanctions were no longer available, the district
court did not abuse its discretion in sanctioning the Broadcasters by excluding their

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damages evidence even though this sanction was tantamount to dismissal of their
claim. See R & R Sails, Inc. v. Ins. Co. of Pa., 673 F.3d 1240, 1247–48 (9th Cir.
2012).
Mr. Bergner did not waive his objection to the Broadcasters’ damages
evidence by failing to move to compel that evidence during discovery. Because
Rule 26(a)(1)(A)(iii) required the Broadcasters to disclose their damages
computation “without awaiting a discovery request,” and because Rule 37(c)(1)
establishes an automatic exclusion sanction for violations of that rule, Mr. Bergner
did not need to move to compel disclosure before seeking sanctions. See R & R
Sails, 673 F.3d at 1243, 1246–47 (concluding that a Rule 37(c)(1) exclusion
sanction would be appropriate if the violation were willful and if lesser sanctions
were not available, even though the party seeking sanctions had not moved to
compel disclosure of the evidence during discovery).
We affirm the district court’s order granting Mr. Bergner’s motion in limine
to exclude evidence of the Broadcasters’ damages as a sanction for their violation
of Rule 26(a)(1)(A)(iii).
2. The Broadcasters argue that this court should reverse the district court’s
order granting summary judgment to Mr. Bergner only if it also reverses the

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district court’s order granting Mr. Bergner’s motion in limine.1 Accordingly,
having affirmed that order, we also affirm the district court’s summary judgment
order.
AFFIRMED.
1 In their “Statement of the Issues Presented for Review,” the Broadcasters
also suggest that the district court erred in granting Mr. Bergner’s renewed motion
for summary judgment because Mr. Bergner failed to file supplemental briefing as
ordered. The Broadcasters never actually briefed this issue, however, and this
court “review[s] only issues which are argued specifically and distinctly in a
party’s opening brief,” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).

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