                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 18 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KEVIN FEAGINS; YOLANDA                           No. 13-17359
FEAGINS; KEVIN FEAGINS, Jr.;
JOSHUA FEAGINS; ANDRE FEAGINS;                   D.C. No. 2:11-cv-01121-GMN-
JONATHAN FEAGINS,                                GWF

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
 v.

TRUMP ORGANIZATION; TRUMP
RUFFIN TOWER I, LLC; TRUMP
INTERNATIONAL HOTEL & TOWER -
LAS VEGAS UNIT OWNERS
ASSOCIATION; TRUMP RUFFIN
COMMERCIAL, LLC; OTIS
ELEVATOR CO.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Gloria M. Navarro, Chief District Judge, Presiding

                     Argued and Submitted December 7, 2015
                            San Francisco, California

Before: KOZINSKI, BYBEE, and CHRISTEN, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court erred by holding that Nevada law requires expert

testimony for a claim of products liability. Krause Inc. v. Little, 34 P.3d 566,

571–72 (Nev. 2001). Where there are no alternative explanations for a

malfunction, Nevada law requires only evidence of an unexpected and dangerous

malfunction to establish a defect. See e.g., Stackiewicz v. Nissan Motor Corp. in

U.S.A., 686 P.2d 925, 928 (Nev. 1984). The declarations made by members of the

Feagins family, in conjunction with the videotape that depicted the events that

occurred inside the elevator, provided sufficient evidence to survive Otis Elevator

Co.'s motion for summary judgment.

      The district court’s opinion was otherwise correct. The Feagins presented

no direct evidence of negligence by Trump.1 Nor could a jury infer negligence

under a theory of res ipsa loquitur because, at most, Trump exercised joint control

over the elevator with Otis Elevator Co. Fireman’s Fund Am. Ins. Cos. v. Knobbe,

562 P.2d 825, 825–26 (Nev. 1977); Landmark Hotel & Casino, Inc. v. Moore, 757

P.2d 361, 363 (Nev. 1988). The Feagins presented no evidence showing

“oppression, fraud or malice” as required for punitive damages. Nev. Rev. Stat.

§ 42.005. And the district court did not abuse its discretion by refusing to reopen

      1
            We use the term “Trump” to refer to all Trump defendants: the Trump
Organization; Trump Ruffin Tower I, LLC; Trump International Hotel & Tower -
Las Vegas Unit Owners Association; and Trump Ruffin Commercial, LLC.

                                          2
discovery given the Feagins’ lack of diligence both in failing to seek a schedule

modification before the close of discovery and in failing to generate an expert

report during the discovery period. See e.g., Johnson v. Mammoth Recreations,

Inc., 975 F.2d 604, 609 (9th Cir. 1992); Nidds v. Schindler Elevator Corp., 113

F.3d 912, 921 (9th Cir. 1996).

      We VACATE and REMAND for further proceedings consistent with this

disposition. The Feagins shall bear Trump’s costs on appeal. Otis shall bear the

Feagins’ and its own costs on appeal.




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