                           NOT FOR PUBLICATION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.




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