FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGARET A. HOFFMAN, an 

individual, for herself and on

behalf of all others similarly

situated; DANIEL LOPEZ,

Plaintiffs,

and

MIAN ALAM; GREAN RASHOD

ANDERSON; PETER BAKER; ROBERT

BOLDS; WILLIE BRACKENS; SANDRA

BRATTON; ROBERT BRIGGS; MICHAEL

BROWN; DANIEL BUERMAN; MARK

BURNS; JEANNE BYRON; WILSON

CAYLAN; JESUS CHACON; DOMINIC

CLESCERI; ALEJANDRO COBIAN; No. 06-56380

SAMUEL CONSTON; DAVID CORDE;  D.C. No.

ALFREDO FERNANDEZ; CHRISTINE CV-03-01006-VAP

FLEMING; RUDY FLORES; JOSEPH

GHATTAS; ADRIAN GRIFFIN; TIANNA

HALE; MELISSA HALSELL; RALPH

HARRIS; MICHAEL HAWKINS TREVOR

JACOBS; LEON JOHNSON; ROBERT

KIMES; TONIE KING DENNIS

KJELDGAARD; JEMAL LILLY; ANDY

MACGUIRE; FLOYD MASKER; JOSEPH

MELERO; HERBERT MILLER; TYRONE

MORRIS; CLARK MOSES; VERONIKA

MULIPOLA; NEIL NELSON; ISIDRO

OLIVARES; JESUS ORTIZ; PHILLIP

OWINGS; TIMOTHY OWINGS; PAUL

REICHERT; TOMMY REQUEJO; 

12305
JOSEPHINE REYNOSO; ERIC SANCHEZ; 

CHRISTOPHER SMITH; BETTY

TAYLOR; FLOYD THOMAS; SCOTT

TUDEHOPE; ANTELMO VILLANUEVA;

JUAN VILLEGAS; MICHAEL VINTA;

EMMANUEL VORGEAS; LARRY

WALLS; ALEXANDER WARREN;

DENNIS WEINTZ; JEREMY WILLIAMS;

WALTER WILLIAMS, Sr.,  individually and on behalf of all

others similarly situated,

Appellants,

v.

CONSTRUCTION PROTECTIVE

SERVICES, INC., a California

corporation,

Defendant-Appellee. 

MARGARET A. HOFFMAN, an 

individual, for herself and on

behalf of all others similarly

situated,

Plaintiff,

and No. 06-56381

DANIEL LOPEZ,  D.C. No.

Plaintiff-Appellant, CV-03-01006-VAP

v.

CONSTRUCTION PROTECTIVE

SERVICES, INC., a California

corporation,

Defendant-Appellee. 

12306 ALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC.
MARGARET A. HOFFMAN, an 

individual, for herself and on

behalf of all others similarly

situated,

Plaintiff-Appellant,

and No. 06-56382

DANIEL LOPEZ,  D.C. No.

Plaintiff, CV-03-01006-VAP

v.

CONSTRUCTION PROTECTIVE

SERVICES, INC., a California

corporation,

Defendant-Appellee. 

MARGARET A. HOFFMAN, an 

individual, for herself and on

behalf of all others similarly

situated, DANIEL LOPEZ, No. 07-55135

Plaintiffs-Appellants, D.C. No.  v. CV-03-01006-VAP

CONSTRUCTION PROTECTIVE OPINION

SERVICES, INC., a California

corporation,

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

July 16, 2008—Pasadena, California

ALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC. 12307
Filed Setpember 4, 2008

Before: Barry G. Silverman, Johnnie B. Rawlinson, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Rawlinson

12308 ALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC.
COUNSEL

Gregory G. Petersen (briefed and argued) and Susan M. Wilson (briefed), Jackson, Demarco, Tidus & Peckenpaugh,

Irvine, California, for the appellants. 

12310 ALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC.
Jim D. Newman, Knee, Ross & Silverman LLP, Los Angeles,

California, for the appellee.

OPINION

RAWLINSON, Circuit Judge: 

In this opinion, we resolve whether the district court erred

in precluding the admission of evidence regarding damages as

a sanction under Federal Rule of Civil Procedure (Rule) 37

for failure to disclose damage calculations under Rule 26(a).

We conclude that the district court did not abuse its discretion

and affirm on this issue. The remaining issues in this case are

resolved in a contemporaneously filed memorandum disposition.

I.

BACKGROUND

Appellants Margaret Hoffman and Daniel Lopez were the

lead plaintiffs in an action brought against Appellee Construction Protective Services, Inc. (CPS), alleging a violation of the

Fair Labor Standards Act (FLSA), and various provisions of

the California Labor Code. An opt-in class was created under

provisions of the FLSA, resulting in the Opt-In Plaintiffs joining the lawsuit. 

Although the parties proceeded with conducting discovery,

at no time prior to trial did Hoffman and Lopez disclose damage calculations either for each individual Opt-In Plaintiff

other than themselves or for the group as a whole. Prior to

trial, CPS filed a motion in limine to exclude evidence not

produced pursuant to Rule 26. 

At the pre-trial conference, the court was expecting to proceed to trial on the claims of approximately sixty-six plainALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC. 12311
tiffs, including the Opt-In Plaintiffs. The number of plaintiffs

concerned the court, a concern that grew as the court began

to realize that Hoffman and Lopez’s counsel did not have a

solid understanding of his clients’ damages. 

Based on the confusion over damages and the court’s concerns, the court decided to take the motion in limine to

exclude evidence under submission. The court was then presented with an oral motion to sever Hoffman’s and Lopez’s

claims from those of the Opt-In Plaintiffs and allow the trial

to proceed as scheduled on the severed claims. The court continued the pre-trial conference to allow the parties to determine whether the case could be tried as scheduled. 

Three days later, the court reconvened the pre-trial conference. The court began by noting its decision to exclude from

trial all evidence of damages not relating to Hoffman and

Lopez. The court then determined that it would be appropriate

to sever Hoffman’s and Lopez’s claims from those of the OptIn Plaintiffs due to potential factual differences relating to the

claims brought under California law. 

The court issued a written ruling on February 21, 2006. Its

conclusions were consistent with the rulings made at the pretrial conference, including the exclusion of damages evidence.

The court made no mention of the severance or its potential

effect on the upcoming trial. Trial began the same day, with

the jury ultimately returning partial verdicts in favor of Hoffman and Lopez. 

Hoffman, Lopez and the Opt-In Plaintiffs (collectively,

Plaintiffs) appeal the exclusion of damages evidence and the

award of attorney’s fees.

II.

STANDARDS OF REVIEW

Evidentiary rulings are reviewed for an abuse of discretion.

Engquist v. Oregon Dept. Of Agric., 478 F.3d 985, 1008 (9th

12312 ALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC.
Cir. 2007). Additionally, “we give particularly wide latitude

to the district court’s discretion to issue sanctions under Rule

37(c)(1).” Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259

F.3d 1101, 1106 (9th Cir. 2001) (citation omitted).

III.

DISCUSSION

A. Jurisdiction

We note at the outset that we have jurisdiction over this

appeal. Prior to oral argument, our jurisdiction was not clear.

See McSherry v. Long Beach, 423 F.3d 1015, 1022 (9th Cir.

2005), as amended (citations omitted) (“[P]reliminary evidentiary rulings are not final decisions reviewable under 28

U.S.C. § 1291.”). However, at oral argument, counsel for

Appellants provided this court with a minute order from the

district court closing the case effective September 1, 2006.

Further, both parties stipulated to the finality of the case.

Accordingly, we possess jurisdiction over the evidentiary ruling as a final order of the district court. See 28 U.S.C. § 1291;

see also Nat’l Distribution Agency v. Nationwide Mut. Ins.

Co., 117 F.3d 432, 434 (9th Cir. 1997) (providing that an

order is final if the district court intended no further action

and the parties did not object to taking an appeal).

B. Due Process

[1] Plaintiffs argue that the district court’s failure to enforce

Local Rule 37-1 violated their due process rights by denying

them a meaningful opportunity to respond to CPS’s motion in

limine. However, Plaintiffs were provided with a copy of the

motion as well as an opportunity, which was taken, to file a

brief in opposition and argue the motion before the district

court. The basic requirements of due process were satisfied.

See generally, Schneider v. San Diego, 28 F.3d 89, 92 (9th

Cir. 1994), as amended (stating that due process requires “noALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC. 12313
tice and an opportunity to be heard at a meaningful time and

in a meaningful manner”) (citation and internal quotation

marks omitted). 

[2] No pre-motion meeting was required in this instance.

Local Rule 37-1 provides: “Prior to the filing of any motion

relating to discovery pursuant to F.R.Civ.P. 26-37, counsel for

the parties shall confer in a good faith effort to eliminate the

necessity for hearing the motion or to eliminate as many of

the disputes as possible.” To the extent that Local Rule 37-1

applies, it must “be consistent with—but not duplicate—

federal statutes and rules.” Fed. R. Civ. P. 83(a)(1). 

[3] Rule 37(c)(1) provides that a party failing to provide

information required by Rule 26(a) or (e) “is not allowed to

use that information . . . to supply evidence on a motion, at

a hearing, or at a trial, unless the failure was substantially justified or is harmless.” As such, CPS’s motion in limine was

not a motion “relating to discovery pursuant to [Rules] 26-

37.” Local Rule 37-1. Rather, it was a motion relating to sanctions pursuant to Rule 37. Any local rule requiring a conference prior to the court’s imposition of sanctions under Rule

37(c) would be inconsistent with Rule 37(c) and, therefore,

unenforceable.

C Granting of Motion In Limine To Exclude Evidence of

Undisclosed Damages

[4] Rule 26(a)(1)(A)(iii) requires the disclosure of “a computation of each category of damages claimed by the disclosing party.” Rule 26(e)(1)(A) requires disclosing parties to

supplement their prior disclosures “in a timely manner” when

the prior response is “incomplete or incorrect.” “Rule 37(c)(1)

gives teeth to these requirements by forbidding the use at trial

of any information required to be disclosed by Rule 26(a) that

is not properly disclosed.” Yeti, 259 F.3d at 1106 (footnote

reference omitted). 

12314 ALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC.
[5] Under Rule 37, exclusion of evidence not disclosed is

appropriate unless the failure to disclose was substantially justified or harmless. Id. at 1106. Plaintiffs assert that they were

substantially justified in failing to disclose damage computations for each opt-in plaintiff because the law is unsettled as

to the obligation to disclose such information on an individual

basis in FLSA opt-in class of actions. Although the district

court accepted Plaintiffs’ argument that the right to individualized discovery in this context remains unsettled, compare

Adkins v. Mid-American Growers, Inc., 143 F.R.D. 171, 174

(N.D. Ill. 1992) (precluding individual discovery in FLSA

case as inappropriate under the circumstances) with Krueger

v. N.Y. Tel. Co., 163 F.R.D. 446, 451 (S.D.N.Y. 1995) (permitting individualized discovery relating to damages in opt-in

class action), their argument ignores the fact that each individual opt-in plaintiff was also proceeding on multiple state law

causes of action that were not included in the class action. As

to those causes of action, Plaintiffs have cited no case, and

there appears to be none, to support the argument that disclosure on an individual basis was not required. Cf. Fed. R. Civ.

P. 26(a)(1)(A)(iii) (requiring disclosure by each party of “a

computation of each category of damages claimed”). Disclosure of damage calculations was mandated under Rule 26(a)

and the Opt-In Plaintiffs’ failure to disclose was not substantially justified. 

[6] Plaintiffs argue in the alternative that any failure to disclose was harmless because of the district court’s decision to

sever the claims of the Opt-In Plaintiffs. We disagree. Later

disclosure of damages would have most likely required the

court to create a new briefing schedule and perhaps re-open

discovery, rather than simply set a trial date. Such modifications to the court’s and the parties’ schedules supports a finding that the failure to disclose was not harmless. See Wong v.

Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir.

2005), as amended. It was eminently reasonable for the court

to require full disclosure of damages for the entire case. 

ALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC. 12315
[7] Finally, we reject the notion that the district court was

required to make a finding of willfulness or bad faith to

exclude the damages evidence. To the contrary, the portion of

Rule 37 relied on by the district court has been described as

“a self-executing, automatic sanction to provide a strong

inducement for disclosure of material.” Yeti, 259 F.3d at 1106

(citation, alterations and internal quotation marks omitted).

The implementation of the sanction is appropriate “even when

a litigant’s entire cause of action . . . [will be] precluded.” Id.

(citation omitted). Because the district court acted within its

discretion when it precluded presentation of undisclosed evidence of damages, we affirm the ruling of the district court.

Affirmed.

12316 ALAM v. CONSTRUCTION PROTECTIVE SERVICES, INC.