Page:Veronica Ollier v. Sweetwater Union High School District (September 19, 2014) US Court of Appeals for the Ninth Circuit.djvu/8

 State Univs., 198 F.3d 763, 767–68 (9th Cir. 1999) (laying out the three-prong test for determining whether a school has provided equal opportunities to male and female students).

B

Before trial, the district court decided three other matters at issue in this appeal. First, it granted Plaintiffs’ motion to exclude the testimony of two Sweetwater experts because (1) the experts’ conclusions and opinions “fail[ed] to meet the standard of Federal Rule of Evidence 702” because they were based on “personal opinions and speculation rather than on a systematic assessment of [the] athletic facilities and programs” at Castle Park, and (2) the experts’ methodology was “not at all clear.”

Second, it granted Plaintiffs’ motion to exclude 38 of Sweetwater’s witnesses because they were not timely disclosed, reasoning that “[w]aiting until long after the close of discovery and on the eve of trial to disclose allegedly relevant and non-cumulative witnesses is harmful and without substantial justification.” Because Sweetwater “offered no justification for [its] failure to comply with” Federal Rule of Civil Procedure 26(a) and (e), the district court concluded that exclusion of the 38 untimely disclosed witnesses was “an appropriate sanction” under Federal Rule of Civil Procedure 37(c)(1).

Third, it considered Sweetwater’s motion to strike Plaintiffs’ Title IX retaliation claim as if it were a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss that claim, and denied it on the merits. ''See Ollier v. Sweetwater Union High Sch. Dist''., 735 F. Supp. 2d 1222 (S.D. Cal. 2010). In so doing, the district court determined that