Kristen Burnham v. United States , 544 F. App'x 660 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTEN BURNHAM, Individually and No. 11-17743
as Representative of the Estate of Caroline
Burnham and as Representative of Ethan J. D.C. No. 2:07-cv-08017-DGC
Mayne, a minor,
Plaintiff - Appellant, MEMORANDUM*
v.
UNITED STATES OF AMERICA;
RICHARD ALAN YOUNG,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted October 15, 2013**
San Francisco, California
*
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. See Fed. R. App. P. 34(a)(2).
Before: THOMAS and McKEOWN, Circuit Judges, and BENNETT, District
Judge.***
Plaintiff Kristen Burnham (“Burnham”) appeals from the district court’s
judgment in favor of the United States. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirm. Because the parties are familiar with the factual and procedural
history of the case, we will not recount it here.
I
We review the district court’s decisions concerning discovery for an abuse
of discretion. Preminger v. Peake, 552 F.3d 757, 768 n.10 (9th Cir. 2008). Rule
16(b)(4) of the Federal Rules of Civil Procedure provides that “[a] schedule may
be modified only for good cause and with the judge’s consent.” Good cause exists
when a deadline “cannot reasonably be met despite the diligence of the party
seeking the extension.” Fed. R. Civ. P. 16 Advisory Comm.’s Notes (1983 Am.).
The same standard applies for modifying a scheduling order on remand. See Mark
H. v. Lemahieu, 513 F.3d 922, 940 n.16 (9th Cir. 2008). Because Burnham was
not diligent in meeting the expert disclosure and fact discovery deadlines, the
district court did not abuse its discretion in concluding that good cause did not
***
The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
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exist for modifying the scheduling order to allow for new disclosures and
additional discovery.
II
The district court did not err in excluding Burnham’s expert report, an issue
that was contained in her prior appeal. Under the mandate rule of the doctrine of
law of the case, “a mandate is controlling as to all matters within its compass,
while leaving any issue not expressly or impliedly disposed of on appeal available
for consideration by the trial court on remand.” Firth v. United States, 554 F.2d
990, 993 (9th Cir. 1977). Further, “‘one panel of an appellate court will not as a
general rule reconsider questions which another panel has decided on a prior
appeal in the same case.’” Hegler v. Borg, 50 F.3d 1472, 1475 (9th Cir. 1995)
(quoting Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991)). Because this
Court impliedly affirmed the district court’s exclusion of Burnham’s expert report
in the first appeal in this case, we will not reconsider the issue on this appeal. See
Burnham v. United States, 400 F. App’x 190, 191 (9th Cir. 2010).
III
Burnham’s claim that “the trial court’s finding that plaintiff failed to prove
that the defendant’s agent was negligent is in error,” is waived because she did not
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present an argument to support it. United States v. Williamson, 439 F.3d 1125,
1137–38 (9th Cir. 2006) (issues raised in brief but not supported by argument are
abandoned); United States v. Tisor, 96 F.3d 370, 376 (9th Cir. 1996) (issue waived
by failing to present argument or pertinent authority to support contentions); see
Fed. R. App. P. 28(a)(9)(A).
AFFIRMED.
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