Nikon Corporation v. Asml U.S., Inc.Nikon Corporation v. Asml U.S., Inc.
Lindsay Goulding, Derek Haynes, Colleen Howard, Attorney, Porter Scott, Sacramento, CA, for Defendant-Appellee
Before: M. SMITH and IKUTA, Circuit Judges, and BATES,* Senior District Judge.
MEMORANDUM **
Jimmy Kuang appeals the district court‘s order granting Bel Air Mart‘s motion for summary judgment. We have jurisdiction under
Even if Kuang‘s declaration and attachments were admissible, the district court did not err in dismissing Kuang‘s claim for breach of the Collective Bargaining Agreement (CBA), because Kuang failed to exhaust the grievance procedures required by the CBA. See Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Because Kuang informed the district court, both orally and in his written submissions, that he waived the argument that his failure to exhaust was excused due to the union‘s breach of its duty of fair representation, this argument is waived on appeal and we do not reach it. See Blaisdell v. Frappiea, 729 F.3d 1237, 1241-42 (9th Cir. 2013). Because Kuang waived his hybrid claim, we do not reach his remaining arguments.
AFFIRMED.
Dana Burwell, Gregory Hayes Lantier, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, George C. Chen, Attorney, Jacob A. Maskovich, Attorney, Bryan Cave LLP, Phoenix, AZ, James Murphy Dowd, Esquire, Derek Anthony Gosma, Counsel, WilmerHale LLP, Los Angeles, CA, for Respondent-Appellant
Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,* District Judge.
MEMORANDUM **
ASML U.S., Inc., timely appeals the district court‘s order, in response to a request by Nikon Corporation pursuant to
The statutory requirements for discovery indisputably are met. The district court carefully considered the factors described by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004). On this record, we cannot conclude that the court abused its “broad discretion” in ordering discovery limited to documents physically located within the United States. Akebia Therapeutics, Inc. v. FibroGen, Inc., 793 F.3d 1108, 1112 (9th Cir. 2015).
For example, even for the documents located both in the United States and abroad, the second Intel factor is met because Nikon‘s experts stated, in unrebutted declarations, that the foreign tribunals would welcome the discoverable evidence. Similarly, we are unpersuaded that the discovery order imposes an undue burden on ASML U.S., the fourth Intel factor. Even if an alternative weighing of the factors were reasonable, the district court‘s decision was not “(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” Mujica v. AirScan Inc., 771 F.3d 580, 589 (9th Cir. 2014) (internal quotation marks omitted). Moreover, no bright-line rule exists in the statute, Supreme Court law, or our precedents—and we decline to create one—to the effect that discovery must be denied for the sole reason that the same items are found in another country.
AFFIRMED.