Parker Herriott v. Sanofi-Aventis U.S. LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2019
• Docket: 17-56913
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PARKER R. HERRIOTT, No. 17-56913

Plaintiff-Appellant, D.C. No. 2:16-cv-09181-JAK-GJS

v. MEMORANDUM* SANOFI-AVENTIS U.S. LLC; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

Parker R. Herriott appeals pro se from the district court’s order dismissing

his product liability and medical malpractice action and denying his motion to

remand to state court. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo subject matter jurisdiction and denials of motions to remand. Ritchey v.

* 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). Upjohn Drug Co., 139 F.3d 1313, 1315 (9th Cir. 1998). We affirm.

The district court properly concluded that Dr. Kneisley was fraudulently

joined because the claims against Dr. Kneisley were barred by the statute of

limitations. See Cal. Civ. Proc. Code § 340.5 (statute of limitations for a California

medical malpractice claim is “three years after the date of injury or one year after

the plaintiff discovers … the injury, whichever occurs first.”); Drexler v. Petersen,

209 Cal. Rptr.3d 332, 340 (Ct. App. 2016) (when a patient experiences appreciable

harm, that appreciable harm will start the limitations period); Grancare, LLC v.

Thrower by & through Mills, 889 F.3d 543, 548 (9th Cir. 2018) (“We have upheld

rulings of fraudulent joinder where a defendant demonstrates that a plaintiff is

barred by the statute of limitations from bringing claims against that defendant.”).

Because Dr. Kneisley was fraudulently joined, the district court properly dismissed

the claims against him, and because the remaining parties were diverse, the district

court properly denied Herriott’s motion to remand. See 28 U.S.C. § 1332.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

The request of Defendant Sanofi-Aventis to be removed from the electronic

service list (Docket Entry No. 12) is granted.

AFFIRMED.