                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 15 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TINA ARMSTRONG,

                Plaintiff-Appellant,

    v.                                                   No. 00-2212
                                                (D.C. No. CIV-99-531-BB/LFG)
    LA QUINTA INNS, INC.,                                  (D. N.M.)
    a Delaware corporation,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       In this diversity case, plaintiff Tina Armstrong is appealing the district

court’s entry of judgment in favor of defendant La Quinta Inns, Inc. under

Fed. R. Civ. P. 50(a). Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

       Plaintiff checked into a La Quinta Inn in Amarillo, Texas, on the afternoon

of June 28, 1998. Plaintiff alleges that, after she located her room and was

leaving the room to return to her car to get her luggage, an unknown man pushed

her back into the room and sexually assaulted her. Plaintiff subsequently filed

a diversity action against defendant in the United States District Court for the

District of New Mexico. Plaintiff asserted a premises liability claim against

defendant under Texas law alleging that defendant was negligent in failing to

provide adequate security at the hotel and that defendant’s negligence was a cause

of the sexual assault.   1



       Plaintiff’s case proceeded to trial before a jury on June 7, 8, and 9, 2000.

At the conclusion of plaintiff’s case-in-chief, the district court found that no

reasonable juror could conclude, under Texas law, that defendant should have

foreseen that a sexual assault or other similar violent crime was likely to occur

at the hotel. Relying on the decision of the Texas Supreme Court in      Timberwalk


1
       Because the district court’s jurisdiction is based on diversity of citizenship
under 28 U.S.C. § 1332(a)(1), we must apply state law to the substantive issues
on this appeal. See Peck v. Horrocks Eng’rs, Inc. , 106 F.3d 949, 952 (10th Cir.
1997). The district court applied Texas law to plaintiff’s substantive claims, and
the parties have not challenged the applicability of Texas law on appeal.

                                           -2-
Apartments, Partners, Inc. v. Cain    , 972 S.W.2d 749 (Tex. 1998), the district court

therefore granted defendant’s motion under Fed. R. Civ. P. 50(a) for judgment as

a matter of law.

       Plaintiff argues on appeal that she put forth sufficient evidence of prior

criminal activity, both at the hotel and in the immediate vicinity, to establish

a prima facie case of foreseeability under    Timberwalk . We have conducted a

de novo review of the district court’s decision to grant defendant judgment as a

matter of law, and we affirm for substantially the same reasons set forth in the

district court’s memorandum opinion dated June 13, 2000.      2




2
        Plaintiff also argues that the district court erred in: (1) refusing to allow her
liability expert to supplement his expert report and testify regarding defendant’s
security manual; (2) refusing to allow into evidence certain deposition testimony
from defendant’s corporate security director; and (3) refusing to allow into
evidence certain deposition testimony concerning drug use on the hotel premises
in March of 1998. We hold that the district court’s evidentiary rulings were not
an abuse of discretion.


                                             -3-
     Accordingly, the judgment of the United States District Court for the

District of New Mexico is AFFIRMED.


                                                  Entered for the Court


                                                  Wade Brorby
                                                  Circuit Judge




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