Russell v. Lorillard, Inc.

144 F. App'x 583

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2005
• Docket: No. 04-55209
• Status: Published

Opinion

MEMORANDUM

**

Alexa Russell, individually and as executress and successor in interest to the Estate of Artemis Henderson, appeals pro se the district court’s summary judgment in Russell’s diversity action alleging survival and wrongful death claims. We have jurisdiction pursuant to 28 U.S.C. § 1291. After de novo review, Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 596 (9th Cir.1996), we affirm.

The district court properly granted summary judgment on Russell’s survival claims because the statute of limitations had run on those claims before she inherited them. See Cal.Code Civ. Proc. § 377.20(a) (“Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.”).

The district court properly granted summary judgment on Russell’s wrongful death claims because she failed to provide the expert testimony required to prove the causation element of her claims. See Kennedy v. Southern California Edison Co., 268 F.3d 763, 767-68 (9th Cir.2001) (citing Jones v. Ortho Pharm. Corp., 163 Cal.App.3d 396, 209 Cal.Rptr. 456, 460 (1985)); see generally Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 210 F.3d 1099, 1102-06 (9th Cir.2000) (reviewing summary judgment standards). The district court did not abuse its discretion in denying Russell additional time to designate an expert because she did not demonstrate “good cause” for a modification of the court’s scheduling order. See Fed.R.Civ.P. 16(b); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087-88 (9th Cir.2002).

The district court did not abuse its discretion in denying Russell leave to amend because the proposed amendments were futile, and the district court found that Russell had proposed them in a bad-faith effort to destroy diversity jurisdiction. See Sorosky v. Burroughs Corp., 826 F.2d 794, 804-05 (9th Cir.1987).

Russell’s remaining contentions lack merit.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.