NOT FOR PUBLICATION FILED APR 24 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ESTATE OF JAMES LEE DIMAGGIO No. 18-35206 and LORA DIMAGGIO ROBINSON, D.C. No. 1:15-cv-00311-EJL Plaintiffs-Appellants,
v. MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding
Argued and Submitted February 4, 2019 Seattle, Washington
Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,** Judge.
Plaintiffs-Appellants, the Estate of James Lee DiMaggio (Estate) and Lora
DiMaggio Robinson (Robinson), appeal the district court’s dismissal of their
wrongful death claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. review a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo.”
Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 698–99 (9th Cir. 1998). We
reverse the district court’s dismissal of Plaintiffs’ wrongful death claim and
remand for further proceedings.
James Lee Dimaggio (DiMaggio) was shot and killed by FBI agents.
DiMaggio is survived by his sister Robinson. Plaintiffs brought an action in the
District of Idaho alleging numerous claims, including a wrongful death claim
against the United States. Idaho’s wrongful death statute provides that “[w]hen the
death of a person is caused by the wrongful act or neglect of another, his or her
heirs or personal representatives on their behalf may maintain an action for
damages against the person causing the death . . . .” Idaho Code Ann. § 5-311(1).
Robinson may only maintain a wrongful death action if she qualifies as
DiMaggio’s “heir” pursuant to the statute, and DiMaggio’s Estate may only
maintain a wrongful death action as a trustee on behalf of DiMaggio’s heirs.1 See
Farm Bureau Mut. Ins. Co. of Idaho v. Eisenman, 286 P.3d 185, 189–90 (Idaho
2012). The only question on appeal is whether Robinson meets the definition of
“heirs” provided by Idaho Code Ann. § 5-311(2)(a), which defines “heirs” as
1 DiMaggio’s sister Robinson is the only alleged heir. Thus, whether the Estate can maintain a wrongful death action also depends on whether Robinson qualifies as DiMaggio’s “heir.” 2 “[t]hose persons who would be entitled to succeed to the property of the decedent
according to the provisions of subsection (22) of section 15-1-201, Idaho Code.”
Idaho Code Ann. § 15-1-201(22) is located within Idaho’s Uniform Probate Code
and states that “‘[h]eirs’ means those persons, including the surviving spouse, who
are entitled under the statutes of intestate succession to the property of a decedent.”
We look to the Idaho statutes of intestate succession to determine whether
Robinson is DiMaggio’s “heir.”2 Idaho’s intestate succession statute provides that
the order of intestate succession is: (1) surviving spouse; (2) issue of the decedent;
(3) parents of the decedent; (4) issue of the parents; and (5) grandparents of the
decedent. Idaho Code Ann. § 15-2-103. It is undisputed that DiMaggio has no
surviving spouse, children, or parents. Thus, DiMaggio’s sister Robinson is his
“heir” pursuant to the Idaho statutes of intestate succession.
The district court incorrectly concluded that no heir of DiMaggio could
maintain a wrongful death action in Idaho pursuant to subsection (2)(a) because
2 Plaintiffs argue on appeal, for the first time, that the court should have looked to the California statutes of intestate succession to determine whether Robinson is DiMaggio’s “heir” because DiMaggio was a California resident at the time of his death. Even assuming Plaintiffs did not waive this argument, the Idaho statutes of intestate succession apply. Whitley v. Spokane & Inland Ry. Co., 132 P. 121, 123–24 (Idaho 1913), aff’d sub nom. Spokane & Inland Empire Ry. Co. v. Whitley, 237 U.S. 487 (1915) (looking to the “laws of Idaho” to determine who qualified as a non-resident decedent’s heirs). 3 DiMaggio is a California resident with no property in Idaho. See Idaho Code Ann.
§ 15-1-301. The Idaho Supreme Court has never suggested that the jurisdictional
requirements for probating an estate are a prerequisite for maintaining a wrongful
death action. See Whitley v. Spokane & Inland Ry. Co., 132 P. 121, 124 (Idaho
1913), aff’d sub nom. Spokane & Inland Empire Ry. Co. v. Whitley, 237 U.S. 487
(1915) (holding that a nonresident decedent’s mother qualified as decedent’s “heir”
for purposes of maintaining a wrongful death action in Idaho, even though the
Uniform Probate Code’s jurisdictional requirements were not satisfied).3
Nebeker v. Piper Aircraft Corp., 747 P.2d 18 (Idaho 1987), does not change
our conclusion that Robinson qualifies as DiMaggio’s “heir” for purposes of
maintaining a wrongful death action. In Nebeker, the Idaho Supreme Court held
3 Our dissenting colleague does not explain how Idaho law can be reconciled with her suggested statutory interpretation mandating that the Probate Code’s jurisdictional requirements be satisfied. For over a century, Idaho has referred to its intestate succession statutes to determine who qualifies as an heir for purposes of a wrongful death action. Nebeker v. Piper Aircraft Corp., 747 P.2d 18, 22 (Idaho 1987). When the Idaho legislature amended its wrongful death statute to include a statutory definition of heirs, it adopted the Probate Code’s definition of “heir,” thereby specifying that the intestate succession statutes determine a decedent’s heir for purposes of subsection (2)(a) of the wrongful death statute. See id. Idaho has never indicated that the jurisdictional requirements for initiating a probate action—such as probating an estate or administering a trust—apply to a wrongful death action. See, e.g., Whitley, 132 P. at 124. We see no reason to apply the Probate Code’s jurisdictional requirements because there is no probate action here. 4 that only decedent’s surviving spouse, and not decedent’s children, could bring a
wrongful death claim because the children could not satisfy a prerequisite
condition imposed by the intestate succession statutes then in effect. 747 P.2d at
20–21.
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NOT FOR PUBLICATION FILED APR 24 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ESTATE OF JAMES LEE DIMAGGIO No. 18-35206 and LORA DIMAGGIO ROBINSON, D.C. No. 1:15-cv-00311-EJL Plaintiffs-Appellants,
v. MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding
Argued and Submitted February 4, 2019 Seattle, Washington
Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,** Judge.
Plaintiffs-Appellants, the Estate of James Lee DiMaggio (Estate) and Lora
DiMaggio Robinson (Robinson), appeal the district court’s dismissal of their
wrongful death claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. review a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo.”
Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 698–99 (9th Cir. 1998). We
reverse the district court’s dismissal of Plaintiffs’ wrongful death claim and
remand for further proceedings.
James Lee Dimaggio (DiMaggio) was shot and killed by FBI agents.
DiMaggio is survived by his sister Robinson. Plaintiffs brought an action in the
District of Idaho alleging numerous claims, including a wrongful death claim
against the United States. Idaho’s wrongful death statute provides that “[w]hen the
death of a person is caused by the wrongful act or neglect of another, his or her
heirs or personal representatives on their behalf may maintain an action for
damages against the person causing the death . . . .” Idaho Code Ann. § 5-311(1).
Robinson may only maintain a wrongful death action if she qualifies as
DiMaggio’s “heir” pursuant to the statute, and DiMaggio’s Estate may only
maintain a wrongful death action as a trustee on behalf of DiMaggio’s heirs.1 See
Farm Bureau Mut. Ins. Co. of Idaho v. Eisenman, 286 P.3d 185, 189–90 (Idaho
2012). The only question on appeal is whether Robinson meets the definition of
“heirs” provided by Idaho Code Ann. § 5-311(2)(a), which defines “heirs” as
1 DiMaggio’s sister Robinson is the only alleged heir. Thus, whether the Estate can maintain a wrongful death action also depends on whether Robinson qualifies as DiMaggio’s “heir.” 2 “[t]hose persons who would be entitled to succeed to the property of the decedent
according to the provisions of subsection (22) of section 15-1-201, Idaho Code.”
Idaho Code Ann. § 15-1-201(22) is located within Idaho’s Uniform Probate Code
and states that “‘[h]eirs’ means those persons, including the surviving spouse, who
are entitled under the statutes of intestate succession to the property of a decedent.”
We look to the Idaho statutes of intestate succession to determine whether
Robinson is DiMaggio’s “heir.”2 Idaho’s intestate succession statute provides that
the order of intestate succession is: (1) surviving spouse; (2) issue of the decedent;
(3) parents of the decedent; (4) issue of the parents; and (5) grandparents of the
decedent. Idaho Code Ann. § 15-2-103. It is undisputed that DiMaggio has no
surviving spouse, children, or parents. Thus, DiMaggio’s sister Robinson is his
“heir” pursuant to the Idaho statutes of intestate succession.
The district court incorrectly concluded that no heir of DiMaggio could
maintain a wrongful death action in Idaho pursuant to subsection (2)(a) because
2 Plaintiffs argue on appeal, for the first time, that the court should have looked to the California statutes of intestate succession to determine whether Robinson is DiMaggio’s “heir” because DiMaggio was a California resident at the time of his death. Even assuming Plaintiffs did not waive this argument, the Idaho statutes of intestate succession apply. Whitley v. Spokane & Inland Ry. Co., 132 P. 121, 123–24 (Idaho 1913), aff’d sub nom. Spokane & Inland Empire Ry. Co. v. Whitley, 237 U.S. 487 (1915) (looking to the “laws of Idaho” to determine who qualified as a non-resident decedent’s heirs). 3 DiMaggio is a California resident with no property in Idaho. See Idaho Code Ann.
§ 15-1-301. The Idaho Supreme Court has never suggested that the jurisdictional
requirements for probating an estate are a prerequisite for maintaining a wrongful
death action. See Whitley v. Spokane & Inland Ry. Co., 132 P. 121, 124 (Idaho
1913), aff’d sub nom. Spokane & Inland Empire Ry. Co. v. Whitley, 237 U.S. 487
(1915) (holding that a nonresident decedent’s mother qualified as decedent’s “heir”
for purposes of maintaining a wrongful death action in Idaho, even though the
Uniform Probate Code’s jurisdictional requirements were not satisfied).3
Nebeker v. Piper Aircraft Corp., 747 P.2d 18 (Idaho 1987), does not change
our conclusion that Robinson qualifies as DiMaggio’s “heir” for purposes of
maintaining a wrongful death action. In Nebeker, the Idaho Supreme Court held
3 Our dissenting colleague does not explain how Idaho law can be reconciled with her suggested statutory interpretation mandating that the Probate Code’s jurisdictional requirements be satisfied. For over a century, Idaho has referred to its intestate succession statutes to determine who qualifies as an heir for purposes of a wrongful death action. Nebeker v. Piper Aircraft Corp., 747 P.2d 18, 22 (Idaho 1987). When the Idaho legislature amended its wrongful death statute to include a statutory definition of heirs, it adopted the Probate Code’s definition of “heir,” thereby specifying that the intestate succession statutes determine a decedent’s heir for purposes of subsection (2)(a) of the wrongful death statute. See id. Idaho has never indicated that the jurisdictional requirements for initiating a probate action—such as probating an estate or administering a trust—apply to a wrongful death action. See, e.g., Whitley, 132 P. at 124. We see no reason to apply the Probate Code’s jurisdictional requirements because there is no probate action here. 4 that only decedent’s surviving spouse, and not decedent’s children, could bring a
wrongful death claim because the children could not satisfy a prerequisite
condition imposed by the intestate succession statutes then in effect. 747 P.2d at
20–21. We read Nebeker as holding that if an individual has a contingent interest
in the decedent’s property, and that contingency has not been satisfied, then that
individual is not an “heir” for purposes of maintaining a wrongful death action.
Robinson qualifies as DiMaggio’s “heir” under subsection (2)(a) of the Idaho
wrongful death statute because DiMaggio has no living relatives with greater
priority under Idaho’s intestate succession statutory scheme, and there is not a
condition precedent that Robinson need satisfy before being entitled to inherit
DiMaggio’s property. Robinson and the Estate (on behalf of Robinson) may
maintain a wrongful death action.
REVERSED AND REMANDED
5 FILED APR 24 2019 DiMaggio v. United States, 18-35206 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Choe-Groves, Judge, dissenting: I would affirm the district court’s dismissal of Lora DiMaggio Robinson’s
(“Robinson”) wrongful death claim based on the plain language of the Idaho state
statutes. As noted by the majority, Idaho’s wrongful death statute defines “heirs”
as “[t]hose persons who would be entitled to succeed to the property of the
decedent according to the provisions of subsection (22) of section 15-1-201, Idaho
Code.” Idaho Code Ann. § 5-311(2)(a). Section 15-1-201 of Idaho’s Uniform
Probate Code states that “[h]eirs means those persons, including the surviving
spouse, who are entitled under the statues of intestate succession to the property of
a decedent.” Idaho Code Ann. § 15-1-201 (22). Section 15-1-301 of the Probate
Code explains that “this code applies to . . . the property of nonresidents located in
this state or property coming into the control of a fiduciary who is subject to the
laws of this state.” Idaho Code Ann. § 15-1-301. Mr. DiMaggio was a non-
resident and did not have any property in the state of Idaho. Because Mr.
DiMaggio did not have any property in Idaho, Idaho’s intestate succession does not
apply. Robinson is not an “heir” because she is not “entitled under the statutes of
intestate succession to the property of a decedent.” There is nothing in the
language of the Probate Code to suggest that section 15-1-301 is inapplicable to
wrongful death actions. The majority relies on section 15-2-103 to support the conclusion that
Robison is DiMaggio’s heir for the purposes of the wrongful death action. Section
15-2-103 only provides the order of intestate succession. See Idaho Code Ann. §
15-2-103 (providing the order of intestate succession if the decedent has no
surviving spouse). The Idaho definition of “heir” first looks at the jurisdictional
requirements in Section 15-1-301 based on the plain language of the statute as
explained above. Because the Probate Code looks first to section 15-1-301, it is
improper to find that Robinson is DiMaggio’s heir under section 15-2-103 because
Idaho’s intestate succession does not apply when a non-resident decedent has no
property in the state.
The district court properly analyzed section 15-1-301 in concluding that
Robinson is not DiMaggio’s heir and therefore did not have standing to bring a
wrongful death action. I would affirm the district court’s ruling and respectfully
dissent.