                                                                          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                           NOT FOR PUBLICATION                             OCT 18 2013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.
                                           2
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


                                           3
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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