United States v. Carrie Robertson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-35870
Plaintiff-Appellee, D.C. No. 6:17-cv-00054-SEH
v.
MEMORANDUM*
CARRIE PFLEGER ROBERTSON,
individually and as Personal Representative
of the Estate of Joseph Robertson,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted December 8, 2021**
Seattle, Washington
Before: McKEOWN and BADE, Circuit Judges, and FITZWATER,*** District
Judge.
Carrie Robertson, individually and as personal representative of the estate of
*
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).
***
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
Joseph Robertson, appeals from a district court judgment in favor of the United
States in the amount of $48,532.44 for the cost of removing the Robertsons’
trespassing property from United States Forest Service land and restoring the land
to its original condition. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.
Federal Rule of Civil Procedure 25(a)(1) provides that a district court may
substitute a deceased party’s representative if (1) “the claim is not extinguished”
and (2) a motion is made “within 90 days after service of a statement noting the
death.” The United States’ claim was not extinguished upon Mr. Robertson’s
death. 28 U.S.C. § 2404. The United States timely substituted his estate after a
suggestion of death was filed in the district court. Even if the United States knew
or should have known of Mr. Robertson’s death at some earlier point, the Rule
25(a)(1) time limit is only triggered for parties by notice served in compliance with
Rule 5. See Fed. R. Civ. P. 25(a)(3).
The United States can also recover against Ms. Robertson. To the extent she
argues the United States did not carry its evidentiary burden at summary judgment,
she forfeited this argument by failing to make it to the district court. See Rothman
v. Hosp. Serv. of S. Cal., 510 F.2d 956, 960 (9th Cir. 1975). In any event Ms.
Robertson is mistaken because the record contains undisputed evidence of her
involvement in the trespass. Because the Robertsons were jointly responsible for
the trespass, it was permissible to apportion joint and several liability. See Sloan v.
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Fauque, 784 P.2d 895, 896–97 (Mont. 1989) (holding “where two or more persons
commit tortious acts in concert, all are liable”).
The district court did not abuse its discretion by declining to sanction the
United States. The “district court is intimately familiar with the course of the
litigation and occupies the best position from which to determine whether to award
sanctions.” Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir.
1997). At best, Ms. Robertson has shown the United States’ filings contained a
small number of omissions. Any surprise occasioned by these omissions was the
foreseeable result of, in Ms. Robertson’s own words, her failure to “pursue any
discovery at all.”
The district court permissibly awarded the United States its restoration costs.
State law governs the federal government’s recovery for harm caused to Forest
Service land. See United States v. CB & I Constructors, Inc., 685 F.3d 827, 833
(9th Cir. 2012). In appropriate cases, Montana law allows plaintiffs to recover the
reasonable cost of restoring their real property to its “pre-injury condition.” Lampi
v. Speed, 261 P.3d 1000, 1004–05 (Mont. 2011). Ms. Robertson does not dispute
that remediation damages were appropriate, nor does she dispute that the United
States actually spent $48,532.44 remedying her trespass. She nonetheless insists—
with nothing more than a passing citation to 41 U.S.C. § 3301—that the district
court’s damages award was unreasonable. To the extent she challenges the district
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court’s legal conclusions, the argument is forfeited. See United States v. Graf, 610
F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in passing and not supported
by citations to the record or to case authority are generally deemed waived.”). To
the extent she challenges the district court’s calculation of the United States’ costs,
we discern no clear error. See Koirala v. Thai Airways Int’l, Ltd., 126 F.3d 1205,
1213 (9th Cir. 1997).
AFFIRMED.
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