Cecilia Flores v. Victoria Concepcion

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 15, 2018
• Docket: 16-15915
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CECILIA U. FLORES, No. 16-15915

Plaintiff-Appellant, D.C. No. 1:15-cv-00010

v. MEMORANDUM* VICTORIA CONCEPCION; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of the Northern Mariana Islands Ramona V. Manglona, Chief Judge, Presiding

Submitted July 9, 2018** San Francisco, California

Before: GRABER and TALLMAN, Circuit Judges, and LEMELLE,*** Senior 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 Ivan L.R. Lemelle, United States Senior District Judge for the Eastern District of Louisiana, sitting by designation. Appellant Derron Flores, administrator of the Estate of Cecilia Flores,

appeals the district court’s denial of his motion to substitute as plaintiff in this case.

Federal Rule of Civil Procedure 25(a) provides that, “[i]f a party dies and the claim

is not extinguished, the court may order substitution of the proper party.” The

interpretation of Rule 25(a) is a question of law that we review de novo. Barlow v.

Ground, 39 F.3d 231, 233 (9th Cir. 1994). The district court’s interpretation of

state law is also reviewed de novo. Moreland v. Las Vegas Metro. Police Dep’t,

159 F.3d 365, 369 (9th Cir. 1998). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm the district court’s ruling that Cecilia Flores’ tort claims

extinguished upon her death.

The instant case was originally filed by Plaintiff Cecilia Flores in the

Commonwealth for the Northern Mariana Islands (“CNMI”) Superior Court. It was

removed to federal court pursuant to the Edge Act, 12 U.S.C. § 632. Cecilia Flores

alleged that Union Bank fraudulently “allowed an imposter to redeem [her 1993

certificate of deposit (“CD”)], and hid[] that fundamental material fact . . . all these

years to [her] detriment.”

Both Cecilia Flores and her husband Donald (who bought the CD) died

while this action was pending. Appellant Derron, the son and only known child of

Donald and Cecilia Flores, attempted to substitute as plaintiff in this case.

Although Rule 25(a) governs substitution of parties procedurally, we look to

2 CNMI law to determine survivorship of claims. See Saipan Achugao Resort

Members’ Ass’n v. Wan Jin Yoon, No. CV-06-0049-GA, 2011 WL 5223121, at *5

(N. Mar. I. Oct. 31, 2011) (“In the Commonwealth, written law includes the

Commonwealth Constitution and Commonwealth statutes, along with case law,

court rules, legislative rules and administrative rules.” (citation omitted)).

The CNMI Supreme Court’s decision in Indalecio v. Yarofalir, 2006 WL

2242754 (N. Mar. I. 2006), is controlling. There, the court interpreted the

Commonwealth Code, which provides for the survival of tort claims upon the

tortfeasor’s death, but does not speak to the survival of claims where the tort victim

dies. Id. at *7 (citing 7 CMC § 2601(a)). The court “assume[d] that the

Legislature’s silence here was not an oversight, but a calculated decision,” and

ruled that “the CNMI has no statute which preserves a tort victim’s claims after his

death.” Id.

Indalecio makes clear that Cecilia Flores’ tort claims did not survive her

death, and we are bound by that decision. Gurley v. Rhoden, 421 U.S. 200, 208

(1975) (“[A] State’s highest court is the final judicial arbiter of the meaning of

state statutes.” (citation omitted)); Andrade v. City of Phoenix, 692 F.2d 557, 559

(9th Cir. 1982) (per curiam) (“If there were a decision by the [state] Supreme Court

. . . construing this statute, the federal courts would be bound by that decision.”

(citation omitted)). Appellant’s attempt to distinguish Indalecio is unavailing.

3 Indalecio’s interpretation of CNMI law is not limited to wrongful death torts or

injuries to the person. 2006 WL 2242754, at *7.

AFFIRMED.