Frank Bush v. James Zirul , 667 F. App'x 906 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 04 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FRANK E. BUSH; et al., No. 13-35950
Plaintiffs - Appellants, D.C. No. 3:12-cv-00177-RRB
v.
MEMORANDUM*
JAMES V. ZIRUL; GOVERNMENT
EMPLOYEES INSURANCE COMPANY,
DBA Geico Casualty Company,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Frank E. Bush, James F. Bush, and Dixie L. Hagquist (“the Bushes”) appeal
pro se from the district court’s summary judgment in their action alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument and grants defendants’ requests set forth in their answering
briefs. See Fed. R. App. P. 34(a)(2).
insurance fraud and violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”) arising out of a car accident. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Chance v. Pac-Tel Teletrac Inc.,
242 F.3d 1151, 1156 (9th Cir. 2001). We may affirm on any basis supported by
the record, Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009), and
we affirm.
Summary judgment of James Bush’s claims against GEICO was proper
under Alaska’s doctrine of res judicata because the Bushes’ prior state court action
against GEICO resulted in a final judgment, and James Bush’s claims “could have
been decided in the first suit.” Tolstrup v. Miller, 726 P.2d 1304, 1306 (Alaska
1986) (explaining Alaska’s doctrine of res judicata); see also Palomar Mobilehome
Park Ass’n v. City of San Marcos, 989 F.2d 362, 364 (9th Cir. 1993) (federal
courts are required to give state court judgments the same preclusive effect as
would be given by state courts and apply forum state’s res judicata law).
Moreover, James Bush’s contention that he was entitled to relief as a third-party
beneficiary lacks merit.
The district court did not abuse its discretion by denying Frank Bush and
Dixie Hagquist further discovery on their insurance fraud and RICO claims before
granting summary judgment because they failed to show diligence, given that the
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district court previously granted a two-month extension for them to oppose
summary judgment, and they failed to demonstrate how further discovery would
have precluded summary judgment. See Fed. R. Civ. P. 56(d); Chance, 242 F.3d at
1161 n.6 (setting forth standard of review and explaining that “the district court
does not abuse its discretion by denying further discovery if the movant has failed
diligently to pursue discovery in the past.” (citation and quotation marks omitted)).
We do not consider the merits of summary judgment as to Frank Bush and Dixie
Hagquist because the Bushes do not raise this issue on appeal.
The district court did not abuse its discretion by denying the Bushes’ motion
to amend their complaint to add conspiracy claims against five new defendants
because amendment would have been futile. See Chappel v. Lab. Corp. of Am.,
232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and
explaining that a “district court acts within its discretion to deny leave to amend
when amendment would be futile”); see also Sanford v. MemberWorks, Inc., 625
F.3d 550, 557-59 (9th Cir. 2010) (explaining how to set forth RICO claims under
18 U.S.C. § 1962(c) and (d)).
The Bushes’ consolidated motion seeking leave to proceed in forma
pauperis, filed on December 17, 2013, is denied as moot.
AFFIRMED.
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