NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

URS HOLDINGS , INC., an Ohio corporation,
Plaintiff

- Appellee,

v. GARY TOPOLEWSKI,

Defendant

- Appellant,
and JOHN RIPLEY; et al.,

Defendants. No. 22

- 55546
D.C. No. 2:17

- cv - 05398

- RSWL

- AGR

MEMORANDUM *

URS HOLDINGS , INC., an Ohio corporation,
Plaintiff

- Appellee,

v. JOHN RIPLEY; et al.,

Defendants,
and No. 22

- 55547

D.C. No. 2:17

- cv - 05398

- RSWL

- AGR

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

SEP 18 2023
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

MORRISON KNUDSEN CORPORATION, a Nevada corporation; et al.,

Defendants

- Appellants.
Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, District Judge, Presiding Submitted September 14, 2023 * * Pasadena, California Before: SCHROEDER, FRIEDLAND, and MILLER, Circuit Judges.
Defendant G ary Topo lewski and Defendants Morrison Knudsen Corporation, Morrison

- Knudsen Company, Inc., Morrison

- Knudsen Services, Inc.,
and Morrison

- Knudsen International Inc

. (collectively the Corporate Defendants) appeal from the district court’s judgment in favor of plaintiff A ECOM Energy and Construction, Inc

. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
W e review d e novo whether a district court ha s the authority to impose
sanction s
. Dreith v. Nu Image, Inc. , 648 F.3d 779, 786 (9th Cir. 2011). We review
a district court’s imposition of sanctions for abuse of discretion. Leon v. IDX Sys. Corp. , 464 F.3d 951, 95 7

– 5 8 (9th Cir. 2006)

. “ T he district court has ‘broad fact

finding powers’ with respect to sanctions, and its findings warrant ‘great

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).3

deference

. ’” Primus Auto. Fin. Servs., Inc. v. Batarse , 115 F.3d 644, 649 (9th Cir. 1997) (quoting Townsend v. Holman Consulting Corp. , 929 F.2d 1358, 1366 (9th
Cir. 1990) (en banc ))

. 1. As a sanction against all d efendants , t he district court deemed it true that
d efendants had collected on a $36 million contract , and the court ultimately
award ed damages in that amount to AECOM

. The district court had the authority to impose th at sanction under the “inherent power of federal courts to levy sanctions in response to abusive litigation practices .” Leon , 464 F.3d at 958. A court may impose sanctions under its inherent power “if the court specifically finds
bad faith or conduct tantamount to bad faith

. ” Fink v. Gomez , 239 F.3d 989, 994 (9th Cir. 2001). The district court did so h ere, finding that d efendants failed to comply with an order to produce various financial records necessary to resolve the issue of damages. Id. at 991 ( holding that the court may use its inherent power to sanction a party who willfully disobeys a court order). Defendants argue that AECOM is at fault for the failure to obtain financial information during discovery , noting that after remand from this court, it did not

pursue its outstanding discovery requests and eventually moved for sanctions. Given defendants’ failure to respond to numerous discovery requests , it was
reasonable for AECOM to conclude that pursuing sanctions would be a more productive course tha n continuing fruitless discovery

.4

Additionally, t he Corporate Defendants argue that the y did not willfully disobey th e district court’s order because they did not have access to any of their

own financial documents that would have assist ed in a damage s calculation

. But

t he district court was within its discretion to discount the credibility of that
assertion , especially given that the employee whose declaration supported it failed

to appear for his deposition. Further, the district court did not abuse its discretion in applying the sanction

to Topolewski along with the Corporate Defendants . It found that Topolewski , who held multiple execut ive roles with the Corporate Defendants, is jointly and severally liable for the infringement at issue in the case and was “extensively involved with Corporate Defendants despite his current statements to the contrary.”
In addition , Topolewski was involved in other willful misconduct highlighted by
the district court as deservi ng of sanctions, including violating a preliminary injunction, failing to respond to other discovery requests, and failing to appear at his first deposition.
The district court did not abuse its discretion by relying on a press release to
deem it true that defendants had collected on a $36 million contract

. The district
court found that d efendants willfully conceal ed their financial information , preventing the assessment of damages

. Accordingly, it reasoned that the
d efendants must have made some profit in their scheme, or else “they would not5

have evaded discovery in the first place and could have simply turned over the
records .” See Gibson v. Chrysler Corp. , 261 F.3d 927, 948 (9th Cir. 2001) ( identifying a presumption that “the party resisting discovery is doing so because
the information sought is unfavorable to its interest”). I n the absence of reliable financial records, it was not an abuse of discretion to rel y on an undisputed , publicly available press release to determine an appropriate damages figure

. Defendants argue that th e sanction and subsequent damages award conflict
with our decision in an earlier appeal in this action

. See AECOM Energy & Constr., Inc. v. Morrison Knudsen Corp. , 851 F. App ’ x 20 (9th Cir. 2021)

. But our decision expressly noted that it did “not preclude the district court on remand from considering whether a discovery sanction is appropriate should AECOM seek such relief, such as a sanction focused on the evidentiary inferences that may be drawn
from the defendants’ refusal to produce relevant financial records.” Id. at 22 n.5 ; see id. a t 23

– 24 (Friedland, J., concurring in the judgment). Finally, d efendants argue that the sanction and damages award are contrary
to the Lanham Act. Because the $36 million figure was used as a sanction for litigation misconduct, it need not be prove d with the level of certainty required by
the Lanham Act. 2. The district court’s inherent authority also permits the imposition of terminating sanctions for abusive litigation tactics , including discovery6

misconduct

. See Anheuser

- Busch , Inc. v. Natural Beverage Distrib s. , 69 F.3d 337,
348 (9th Cir. 1995)

. D efendants offer no support for their assertion that the district court’s inherent authority is limited such that it may not impose both monetary and terminating sanctions for the same discovery misconduct

. “A terminating sanction

. . . is very severe , ” and “[o]nly ‘ willfulness, bad faith, and fault ’ justify terminating sanctions.” Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills , 482 F.3d 1091, 1096 (9th Cir. 2007) (quoting Jorgensen v. C

assiday , 320 F.3d 906, 912 (9th Cir. 2003))

. As discussed abo ve , the
district court did not err in finding that d efendants’ conduct rose to this level of bad
faith and willfulness

. B efore imposing a terminating sanction , the district court

must also weigh several factors: “(1) the public ’ s interest in expeditious resolution of litigation; (2) the court ’ s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Leon , 464 F.3d at 958 (quoting Anheuser

- Busch , 69 F.3d at 348). A court need not make an express finding for each factor, but it must express ly consider less severe alternatives. Id.
The district court did so here , rejecting lesser sanctions because it anticipated
continued misconduct. See Conne cticut Gen. Life Ins., 482 F.3d at 109 7 (“ It is appropriate to reject lesser sanctions where the court anticipates continued deceptive misconduct .” (quoting Anheuser

- Busch , 69 F.3d at 352) ).7

The motion to substitute (Dkt. No. 28 in Appeal No. 22

- 55546 & Dkt. No. 22 in Appeal No. 22

- 55547 ) is GRANTED . The motion to take judicial notice (Dkt. No s . 19 & 20 in Appeal No. 22

- 55546 ) is DENIED

. AFFIRMED.