FILED
NOT FOR PUBLICATION
MAR 09 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PJY ENTERPRISES, LLC, a Hawaii No. 14-16016
limited liability company; MIKE, INC.,
a Hawaii corporation; ALOHA D.C. No.
ARCADE, INC., a Hawaii corporation; 1:12-cv-00577-LEK-RLP
GS ENTERTAINMENT, INC., a
Hawaii corporation,
MEMORANDUM*
Plaintiffs-Appellants,
v.
KEITH M. KANESHIRO, in his official
capacity as the Prosecuting Attorney of
the City and County of Honolulu;
LOUIS M. KEALOHA, in his official
capacity as the Chief of Police of the
City and County of Honolulu; AARON
YOUNG; HONOLULU POLICE
DEPARTMENT,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted February 21, 2017
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
Honolulu, Hawaii
Before: KOZINSKI, HAWKINS and BEA, Circuit Judges.
1. The district court properly granted summary judgment to the Honolulu
Police Department, Keith M. Kaneshiro, Louis M. Kealoha and Aaron Young on
whether the Products Direct Sweepstakes (PDS) terminals that the Honolulu Police
Department seized from plaintiffs’ arcades constituted “gambling devices” within
the meaning of Hawaii Revised Statute section 712-1220. The undisputed
statistical and episodic evidence in the record establishes that only a small portion
of the discount coupons obtained from the PDS terminals were ever registered on
the Products Direct website, and only a small portion of the registered coupons
were ever used to purchase merchandise. This shows that the terminals were not
used to buy discount coupons but rather to “stake[] or risk[] something of value”
for the potential cash prize. Haw. Rev. Stat. § 712-1220.
2. The evidentiary challenges plaintiffs raise don’t affect our analysis. First,
plaintiffs argue that the district court erroneously determined that Detectives
Young and Solon never received the items that they ordered from the Products
Direct website. But the fact that the detectives eventually received their items
almost two months after they placed their orders—and after they made the
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declarations at issue—is insufficient to create a genuine dispute of material fact
regarding the bona fide nature of the website.
Second, plaintiffs’ challenge that the district court erroneously excluded
plaintiffs’ evidence regarding the sale of coupon books is equally futile. The types
of products that were being sold or the relative popularity of each item is irrelevant
to whether the users of the PDS terminals were “gambling” or buying discount
coupons.
Third, the district court properly relied on personal observations contained in
the declarations of Detectives Young and Solon and of Chad Teruya. Although
these observations related to Winner’z Zone arcades, owned and operated by the
plaintiffs who are not parties to this appeal, nothing in the record suggests that the
PDS terminals in Lucky Zone arcades operated differently or that customers at
Lucky Zone arcades behaved differently.
Finally, the paragraph in Detective Young’s declaration describing what the
users of the PDS terminals told him may have been hearsay. But, in light of the
other undisputed evidence, the district court’s failure to exclude this evidence was
not prejudicial. See Ambat v. City & Cty. of San Francisco, 757 F.3d 1017, 1032
(9th Cir. 2014).
page 4
3. Nor did the district court abuse its discretion in applying its local rule
56.1. Even if the district court departed from the strict language of its local rule,
the departure didn’t affect the substantial rights of either party. See Prof’l
Programs Grp. v. Dep’t of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994).
AFFIRMED.