NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAIPING SU,
Plaintiff

- Appellant,

v.
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, an Agency of the United States; et al.,

Defendants

- Appellees. No. 16

- 16818
D.C. No. 5:09

- cv - 02838

- EJD

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding Submitted February 14, 2018 ** San Francisco, California
Before: KLEINFELD and TALLMAN, Circuit Judges, and JACK, *** District Judge.
Plaintiff

- Appellant Haiping Su appeals the district court’s denial of his

* 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).

*** The Honorable Janis Graham Jack, United States District Judge for the Southern District of Texas, sitting by designation. 

# FILED

FEB 16 2018
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

motion for attorneys ’ fees under Federal Rule of Civil Procedure 37(c) (2) . Su argues the district court abused i ts discretion by: (1) finding Rule 37(c)(2)(B) and (D) exceptions applied; (2) denying Su’s requested fees as unreasonable ;
and (3) denying fees on the ground that NASA and the United States are distinct legal entities. We have jurisdiction under 28 U.S. C. § 1291 and affirm.
1. Su argues the district court erred in finding that exceptions to Rule 37(c) (2) precluded an award of attorneys’ fees as sanctions for failure to admit Request for Admission (“R F A”) 16. The district court properly recognized “that potentially valid arguments could have been made on both sides of this issue , ” and accordingly , the United States had “good reason for failure to admit.” Magnetar
Tech

. Corp. v. Intamin, Ltd. , 801 F.3d 1150, 1161 ( 9th Cir. 2015). The district
court did not err in applying Rule 37(c)(2)(D).
Further , the district court did not abuse its discretion in finding R F A 16 was not “material to the disposition of” Su’s privacy claims. McCarthy v. Ameritech Publ’g , Inc. , 763 F.3d 488 , 492 ( 6th Cir. 2014) (citing SEC v. Happ , 392 F.3d 12 , 34 ( 1st Cir. 2004)). Su ignores that “[t]he importance of the disputed fact is assessed at the time the request for admission is made, not at the end of the case.”
Id

. I n viewing RFA 16 at the time it was made, we find no error in the district
court’s holding that “ the admission sought was of no substantial importance.” Fed.
R. Civ. P. 37(c)(2)( B ).3

2. The district court did not “commit[] a clear error of judgment ” in finding Su’s expe nses were plainly unreasonable. Marchand v. Mercy Med. Ctr. , 22 F.3d
933 , 936 ( 9th Cir. 1994) (citation omitted)

. The district court properly found
sanctions must be “limited to the fees the innocent party incurred solely because of
the misconduct.” Goodyear Tire & Rubber Co. v. Haeger , 137 S. Ct. 1178 , 1184 (2017)

. Given the district court’s considerable discretion to determine the reasonableness of the fee, we find no error here

. See Gates v. Gomez , 60 F.3d 525, 534 ( 9th Cir. 1995).
3. The district court did not err in denying fees under R ule 37 (c)(2) based
on its conclusion that the United States and NASA are legally distinct entities.
R F A 8 was filed on February 22, 2010 and addressed to NASA

. Under 28 U.S.C. § 2679, the United States had not been “substituted as the party defendant” at the
time RFA 8 was filed

. The United States became a party to the suit on June 24,
2010 when Su’s two pending cases , aga inst NASA and the United States respectively, were consolidated

. Due to the procedural posture of this case, t he
district court did n ot abuse its discretion in finding the United States was not “the party who failed to admit” under Rule 37(c)(2)

. See Allen v. Veterans Admin. , 748 F.2d 1386, 1389 ( 9th Cir. 1984)

. Plaintiff shall bear all costs of appeal. See Fed. R. App. P. 39(a)(2).
AFFIRMED.