NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 31 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARCO YAMMINE, No. 24-1390 D.C. No. Plaintiff-ctr-defendant - 2:21-cv-00093-MTL Appellant,
v. MEMORANDUM*
TOOLBOX FOR HR SPOLKA Z OGRANICZONA ODPOWIEDZIALNOSCIA SPOLKA KOMANDYTOWA,
Defendant-ctr-claimant - Appellee.
Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding
Submitted March 27, 2025** Phoenix, Arizona
Before: GRABER and BENNETT, Circuit Judges, and LEFKOW, District Judge.***
* 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 Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Plaintiff-Appellant Marco Yammine appeals the jury verdict and judgment in
favor of Defendant-Appellee Toolbox For HR Spolka Z Ograniczona
Odpowiedzialnoscia Spolka Komandytowa (Toolbox). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
1. Yammine’s challenge to the jury’s damages verdict is forfeited. Unitherm
Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006), establishes that “a
post-verdict motion under [Federal] Rule [of Civil Procedure] 50(b) is an absolute
prerequisite to any appeal based on insufficiency of the evidence.” Nitco Holding
Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007) (citing Unitherm, 546 U.S.
394). Following the jury’s verdict, Yammine made no post-verdict challenges to the
jury’s award of $500,000. Thus, his argument is barred.
2. Yammine’s evidentiary ruling challenges are not forfeited by his failure to
make a Rule 50(b) motion, because his evidentiary claims are not predicated on
insufficiency of the evidence. Yammine simply contends that the district court erred
in its evidentiary rulings. And Yammine preserved those arguments for appellate
review through his trial objections.
3. Toolbox claims Yammine did not sufficiently object to the introduction of
Exhibit 164 at trial. Initially, Exhibit 164 consisted of both an expert report and
attached business records. At the beginning of the trial, following Yammine’s
objection to the admission of Exhibit 164 in its entirety on the basis of untimely
2 24-1390 disclosure, the district court excluded the expert report portion of the exhibit but
denied Yammine’s motion to exclude the attached business records. When Toolbox
sought to admit Exhibit 164 later during trial, Yammine stated he had “[n]o
objection” to the admission of Exhibit 164. Toolbox now argues that this later failure
to object waived Yammine’s objection to Exhibit 164. We disagree.
“Once the court rules definitively on the record, either before or at trial, a
party need not renew an objection or offer of proof to preserve a claim of error for
appeal.” United States v. McElmurry, 776 F.3d 1061, 1066 (9th Cir. 2015) (quoting
Fed. R. Evid. 103(b)). Yammine’s original objection to the admission of Exhibit
164 was thus sufficient to preserve his challenge.
4. We review the district court’s evidentiary rulings for abuse of discretion.
United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011). “We do not reverse
the district court’s decisions under an abuse of discretion standard unless we are
‘convinced firmly that the reviewed decision lies beyond the pale of reasonable
justification under the circumstances.’” Boyd v. City & County of San Francisco,
576 F.3d 938, 943 (9th Cir. 2009) (quoting Harman v. Apfel, 211 F.3d 1172, 1175
(9th Cir. 2000)).
As Yammine conceded at trial, the challenged records were disclosed to his
counsel more than a year before trial. The only “lateness” involved the records being
labeled as a trial exhibit after the deadline. And the district court gave Yammine
3 24-1390 “the opportunity to identify anything out there that you feel like you would have
identified if you had known” about Toolbox’s intention to use Exhibit 164 at trial.
Yammine identified nothing. On appeal, he says he “could have countered [Exhibit
164] with a witness from Toolbox” he does not identify. The district court therefore
did not abuse its discretion in admitting the business records portion of Exhibit 164.
5. Yammine argues that Exhibit 113, an independent contractor agreement
between the parties that predated Yammine’s formal employment with Toolbox in
December 2018, should have been excluded under Federal Rules of Evidence 401
and 403. Yammine objected to the admission of Exhibit 113.
FRE 401 provides that evidence is relevant if “it has any tendency to make a
fact more or less probable than it would be without the evidence,” and “the fact is of
consequence in determining the action.” Fed. R. Evid. 401. This is a “low bar.”
Sandoval v. County of San Diego, 985 F.3d 657, 666 (9th Cir. 2021). Establishing
the existence of a professional relationship between Yammine and Toolbox before
December 2018 was necessary for discussing the full history of Yammine and
Toolbox. Exhibit 113 provided evidence of that relationship and the contours of the
relationship. The district court therefore did not abuse its discretion in rejecting the
FRE 401 relevance challenge.
Under FRE 403, the “court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confusing the
4 24-1390 issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403 (emphasis added). Yammine’s fiduciary
duties to Toolbox, the issue at trial, were not governed by the independent contractor
agreement. But given the parties’ need to discuss the history of Yammine and
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 31 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARCO YAMMINE, No. 24-1390 D.C. No. Plaintiff-ctr-defendant - 2:21-cv-00093-MTL Appellant,
v. MEMORANDUM*
TOOLBOX FOR HR SPOLKA Z OGRANICZONA ODPOWIEDZIALNOSCIA SPOLKA KOMANDYTOWA,
Defendant-ctr-claimant - Appellee.
Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding
Submitted March 27, 2025** Phoenix, Arizona
Before: GRABER and BENNETT, Circuit Judges, and LEFKOW, District Judge.***
* 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 Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Plaintiff-Appellant Marco Yammine appeals the jury verdict and judgment in
favor of Defendant-Appellee Toolbox For HR Spolka Z Ograniczona
Odpowiedzialnoscia Spolka Komandytowa (Toolbox). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
1. Yammine’s challenge to the jury’s damages verdict is forfeited. Unitherm
Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006), establishes that “a
post-verdict motion under [Federal] Rule [of Civil Procedure] 50(b) is an absolute
prerequisite to any appeal based on insufficiency of the evidence.” Nitco Holding
Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007) (citing Unitherm, 546 U.S.
394). Following the jury’s verdict, Yammine made no post-verdict challenges to the
jury’s award of $500,000. Thus, his argument is barred.
2. Yammine’s evidentiary ruling challenges are not forfeited by his failure to
make a Rule 50(b) motion, because his evidentiary claims are not predicated on
insufficiency of the evidence. Yammine simply contends that the district court erred
in its evidentiary rulings. And Yammine preserved those arguments for appellate
review through his trial objections.
3. Toolbox claims Yammine did not sufficiently object to the introduction of
Exhibit 164 at trial. Initially, Exhibit 164 consisted of both an expert report and
attached business records. At the beginning of the trial, following Yammine’s
objection to the admission of Exhibit 164 in its entirety on the basis of untimely
2 24-1390 disclosure, the district court excluded the expert report portion of the exhibit but
denied Yammine’s motion to exclude the attached business records. When Toolbox
sought to admit Exhibit 164 later during trial, Yammine stated he had “[n]o
objection” to the admission of Exhibit 164. Toolbox now argues that this later failure
to object waived Yammine’s objection to Exhibit 164. We disagree.
“Once the court rules definitively on the record, either before or at trial, a
party need not renew an objection or offer of proof to preserve a claim of error for
appeal.” United States v. McElmurry, 776 F.3d 1061, 1066 (9th Cir. 2015) (quoting
Fed. R. Evid. 103(b)). Yammine’s original objection to the admission of Exhibit
164 was thus sufficient to preserve his challenge.
4. We review the district court’s evidentiary rulings for abuse of discretion.
United States v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011). “We do not reverse
the district court’s decisions under an abuse of discretion standard unless we are
‘convinced firmly that the reviewed decision lies beyond the pale of reasonable
justification under the circumstances.’” Boyd v. City & County of San Francisco,
576 F.3d 938, 943 (9th Cir. 2009) (quoting Harman v. Apfel, 211 F.3d 1172, 1175
(9th Cir. 2000)).
As Yammine conceded at trial, the challenged records were disclosed to his
counsel more than a year before trial. The only “lateness” involved the records being
labeled as a trial exhibit after the deadline. And the district court gave Yammine
3 24-1390 “the opportunity to identify anything out there that you feel like you would have
identified if you had known” about Toolbox’s intention to use Exhibit 164 at trial.
Yammine identified nothing. On appeal, he says he “could have countered [Exhibit
164] with a witness from Toolbox” he does not identify. The district court therefore
did not abuse its discretion in admitting the business records portion of Exhibit 164.
5. Yammine argues that Exhibit 113, an independent contractor agreement
between the parties that predated Yammine’s formal employment with Toolbox in
December 2018, should have been excluded under Federal Rules of Evidence 401
and 403. Yammine objected to the admission of Exhibit 113.
FRE 401 provides that evidence is relevant if “it has any tendency to make a
fact more or less probable than it would be without the evidence,” and “the fact is of
consequence in determining the action.” Fed. R. Evid. 401. This is a “low bar.”
Sandoval v. County of San Diego, 985 F.3d 657, 666 (9th Cir. 2021). Establishing
the existence of a professional relationship between Yammine and Toolbox before
December 2018 was necessary for discussing the full history of Yammine and
Toolbox. Exhibit 113 provided evidence of that relationship and the contours of the
relationship. The district court therefore did not abuse its discretion in rejecting the
FRE 401 relevance challenge.
Under FRE 403, the “court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair prejudice, confusing the
4 24-1390 issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403 (emphasis added). Yammine’s fiduciary
duties to Toolbox, the issue at trial, were not governed by the independent contractor
agreement. But given the parties’ need to discuss the history of Yammine and
Toolbox’s professional relationship before December 2018, the probative value of
Exhibit 113 was high.
And the risk of unfair prejudice, confusing the issues, or misleading the jury
was low. The independent contractor agreement provides that Yammine’s business
entity “shall perform . . . [s]ervices in a loyal and professional manner.” That
agreement does not impose a greater fiduciary duty on Yammine than the formal
employment agreement. The district court did not abuse its discretion in concluding
that the probative value of Exhibit 113 was not “substantially” outweighed by any
danger of prejudice and in rejecting Yammine’s FRE 403 challenge.
6. We deny Toolbox’s motion to dismiss the appeal and for attorneys’ fees
and costs. Dkt. 25. Toolbox requests dismissal claiming the appeal is frivolous. Id.
at 2–4. “An appeal is considered frivolous in this circuit when the result is obvious
or the appellant’s arguments are wholly without merit.” Glanzman v. Uniroyal, Inc.,
892 F.2d 58, 61 (9th Cir. 1989) (quoting McConnell v. Critchlow, 661 F.2d 116, 118
(9th Cir. 1981)). We find the issues on appeal substantial enough that we reject
Toolbox’s claim that the appeal was frivolous. That determination also disposes of
5 24-1390 one of Toolbox’s bases for seeking fees and costs—Federal Rule of Appellate
Procedure 38. Dkt. 25 at 5–6.
Toolbox also argues that it is entitled to fees and costs because Arizona law
provides for the recovery of attorneys’ fees in cases arising from contracts. See Dkt.
25 at 6–9; Ariz. Rev. Stat. § 12-341.01. But as the district court correctly
determined, Toolbox’s theory regarding Yammine’s alleged breach of fiduciary duty
sounded not in contract law (or in the terms of any contracts between Yammine and
Toolbox), but in tort. Toolbox is therefore not entitled to attorneys’ fees under
Arizona state law.
AFFIRMED. The parties shall bear their own costs on appeal.
6 24-1390