Gary Krela v. Florence Kryla , 585 F. App'x 482 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GARY KRELA, individually and on No. 13-35228
behalf of the Estate of George Raymond
Kryla and LINDA KRELA, D.C. No. 6:12-cv-01089-TC
Plaintiffs - Appellants,
MEMORANDUM*
v.
FLORENCE KRYLA, AKA Florence
Fenton, AKA Florence Gleason, AKA
Florence Kelley; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Submitted October 10, 2014**
Portland, Oregon
Before: GOULD, CHRISTEN, and NGUYEN, Circuit Judges.
*
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).
Gary and Linda Krela appeal from the district court’s dismissal of their
diversity action, in which they alleged claims of wrongful death, negligence under
Oregon’s survivor statute, elder abuse, and professional negligence. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.1
The district court properly considered Oregon law in determining whether
the Krelas had standing to bring their Oregon statutory claims. A federal court
exercising diversity jurisdiction must apply state substantive law. Goldberg v.
Pac. Indem. Co., 627 F.3d 752, 755 (9th Cir. 2010) (citing Erie R.R. v. Tompkins,
304 U.S. 64 (1938)). Accordingly, the Krelas can raise state law claims in this
diversity action only if they could have raised those claims in state court.
The district court correctly concluded that the Krelas lacked standing to
bring their statutory claims for wrongful death,2 see Or. Rev. Stat. § 30.020,
personal injury under Oregon’s survivor statute, see Or. Rev. Stat. § 30.075, and
elder abuse, see Or. Rev. Stat. § 124.100, because neither Greg nor Linda Krela is a
personal representative of George Kryla’s estate. The Oregon courts have held that
1
The parties are familiar with the facts, so we will not recount them
here.
2
The Krelas’ wrongful death claim does not refer to any statute, but
“the Oregon Supreme Court has held repeatedly that . . . the right of action for
wrongful death is purely statutory.” Fields v. Legacy Health Sys., 413 F.3d 943,
959 (9th Cir. 2005) (collecting cases). An action for wrongful death in Oregon is
governed by Or. Rev. Stat. § 30.020.
“[o]nly a personal representative of the decedent’s estate may prosecute a wrongful
death suit for the benefit of the decedent’s survivors or intestate successors.”
Brown v. Hackney, 208 P.3d 988, 992 (Or. Ct. App. 2009) (citing Or. Rev. Stat. §
30.020). Oregon Revised Statute § 124.100(3) expressly provides that an action
for elder abuse on behalf of a deceased person may be brought by only “[a]
personal representative for the estate of a decedent who was a vulnerable person at
the time the cause of action arose.” The Oregon courts have not directly addressed
who has standing to bring a survival action under Oregon Revised Statute §
30.075. But an action for bodily injury survives the death of the injured party
“only to the extent that the common law has been modified by statute,” Taylor v.
Lane Cnty, 162 P.3d 356, 363 (Or. Ct. App. 2007) (citing Mendez v. Walker, 538
P.2d 939, 939 (Or. 1975)). Thus, because Oregon Revised Statute § 30.075
affirmatively creates a cause of action only in the decedent’s personal
representative, no other plaintiff may maintain such an action.
The Krelas also lacked standing to bring any common law professional
negligence claims. To the extent George Kryla accrued claims before his death for
professional negligence, those claims survived under Oregon Revised Statute §
30.075. As discussed, only a personal representative of the decedent’s estate may
bring a claim under § 30.075.
3
Because the Krelas lacked standing to bring their claims, we do not consider
whether any of the Krelas’ claims would be barred by any statute of limitations.
And because the district court did not dismiss this case on the basis that it lacked
diversity jurisdiction under the probate exception, we do not consider whether the
probate exception would have been a basis for dismissing this action.
AFFIRMED.
4