                           NOT FOR PUBLICATION                             FILED
                                                                           APR 24 2019
                    UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


ESTATE OF JAMES LEE DIMAGGIO                     No.   18-35206
and LORA DIMAGGIO ROBINSON,
                                                 D.C. No. 1:15-cv-00311-EJL
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

UNITED STATES OF AMERICA; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                      Argued and Submitted February 4, 2019
                               Seattle, Washington

Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,** Judge.

      Plaintiffs-Appellants, the Estate of James Lee DiMaggio (Estate) and Lora

DiMaggio Robinson (Robinson), appeal the district court’s dismissal of their

wrongful death claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. “We

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
review a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo.”

Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 698–99 (9th Cir. 1998). We

reverse the district court’s dismissal of Plaintiffs’ wrongful death claim and

remand for further proceedings.

      James Lee Dimaggio (DiMaggio) was shot and killed by FBI agents.

DiMaggio is survived by his sister Robinson. Plaintiffs brought an action in the

District of Idaho alleging numerous claims, including a wrongful death claim

against the United States. Idaho’s wrongful death statute provides that “[w]hen the

death of a person is caused by the wrongful act or neglect of another, his or her

heirs or personal representatives on their behalf may maintain an action for

damages against the person causing the death . . . .” Idaho Code Ann. § 5-311(1).

Robinson may only maintain a wrongful death action if she qualifies as

DiMaggio’s “heir” pursuant to the statute, and DiMaggio’s Estate may only

maintain a wrongful death action as a trustee on behalf of DiMaggio’s heirs.1 See

Farm Bureau Mut. Ins. Co. of Idaho v. Eisenman, 286 P.3d 185, 189–90 (Idaho

2012). The only question on appeal is whether Robinson meets the definition of

“heirs” provided by Idaho Code Ann. § 5-311(2)(a), which defines “heirs” as


      1
              DiMaggio’s sister Robinson is the only alleged heir. Thus, whether
the Estate can maintain a wrongful death action also depends on whether Robinson
qualifies as DiMaggio’s “heir.”
                                          2
“[t]hose persons who would be entitled to succeed to the property of the decedent

according to the provisions of subsection (22) of section 15-1-201, Idaho Code.”

Idaho Code Ann. § 15-1-201(22) is located within Idaho’s Uniform Probate Code

and states that “‘[h]eirs’ means those persons, including the surviving spouse, who

are entitled under the statutes of intestate succession to the property of a decedent.”

      We look to the Idaho statutes of intestate succession to determine whether

Robinson is DiMaggio’s “heir.”2 Idaho’s intestate succession statute provides that

the order of intestate succession is: (1) surviving spouse; (2) issue of the decedent;

(3) parents of the decedent; (4) issue of the parents; and (5) grandparents of the

decedent. Idaho Code Ann. § 15-2-103. It is undisputed that DiMaggio has no

surviving spouse, children, or parents. Thus, DiMaggio’s sister Robinson is his

“heir” pursuant to the Idaho statutes of intestate succession.

      The district court incorrectly concluded that no heir of DiMaggio could

maintain a wrongful death action in Idaho pursuant to subsection (2)(a) because



      2
              Plaintiffs argue on appeal, for the first time, that the court should have
looked to the California statutes of intestate succession to determine whether
Robinson is DiMaggio’s “heir” because DiMaggio was a California resident at the
time of his death. Even assuming Plaintiffs did not waive this argument, the Idaho
statutes of intestate succession apply. Whitley v. Spokane & Inland Ry. Co., 132 P.
121, 123–24 (Idaho 1913), aff’d sub nom. Spokane & Inland Empire Ry. Co. v.
Whitley, 237 U.S. 487 (1915) (looking to the “laws of Idaho” to determine who
qualified as a non-resident decedent’s heirs).
                                           3
DiMaggio is a California resident with no property in Idaho. See Idaho Code Ann.

§ 15-1-301. The Idaho Supreme Court has never suggested that the jurisdictional

requirements for probating an estate are a prerequisite for maintaining a wrongful

death action. See Whitley v. Spokane & Inland Ry. Co., 132 P. 121, 124 (Idaho

1913), aff’d sub nom. Spokane & Inland Empire Ry. Co. v. Whitley, 237 U.S. 487

(1915) (holding that a nonresident decedent’s mother qualified as decedent’s “heir”

for purposes of maintaining a wrongful death action in Idaho, even though the

Uniform Probate Code’s jurisdictional requirements were not satisfied).3

      Nebeker v. Piper Aircraft Corp., 747 P.2d 18 (Idaho 1987), does not change

our conclusion that Robinson qualifies as DiMaggio’s “heir” for purposes of

maintaining a wrongful death action. In Nebeker, the Idaho Supreme Court held



      3
              Our dissenting colleague does not explain how Idaho law can be
reconciled with her suggested statutory interpretation mandating that the Probate
Code’s jurisdictional requirements be satisfied. For over a century, Idaho has
referred to its intestate succession statutes to determine who qualifies as an heir for
purposes of a wrongful death action. Nebeker v. Piper Aircraft Corp., 747 P.2d 18,
22 (Idaho 1987). When the Idaho legislature amended its wrongful death statute to
include a statutory definition of heirs, it adopted the Probate Code’s definition of
“heir,” thereby specifying that the intestate succession statutes determine a
decedent’s heir for purposes of subsection (2)(a) of the wrongful death statute. See
id. Idaho has never indicated that the jurisdictional requirements for initiating a
probate action—such as probating an estate or administering a trust—apply to a
wrongful death action. See, e.g., Whitley, 132 P. at 124. We see no reason to
apply the Probate Code’s jurisdictional requirements because there is no probate
action here.
                                           4
that only decedent’s surviving spouse, and not decedent’s children, could bring a

wrongful death claim because the children could not satisfy a prerequisite

condition imposed by the intestate succession statutes then in effect. 747 P.2d at

20–21. We read Nebeker as holding that if an individual has a contingent interest

in the decedent’s property, and that contingency has not been satisfied, then that

individual is not an “heir” for purposes of maintaining a wrongful death action.

Robinson qualifies as DiMaggio’s “heir” under subsection (2)(a) of the Idaho

wrongful death statute because DiMaggio has no living relatives with greater

priority under Idaho’s intestate succession statutory scheme, and there is not a

condition precedent that Robinson need satisfy before being entitled to inherit

DiMaggio’s property. Robinson and the Estate (on behalf of Robinson) may

maintain a wrongful death action.

      REVERSED AND REMANDED




                                          5
                                                                     FILED
                                                                      APR 24 2019
DiMaggio v. United States, 18-35206                               MOLLY C. DWYER, CLERK
                                                                    U.S. COURT OF APPEALS
Choe-Groves, Judge, dissenting:
      I would affirm the district court’s dismissal of Lora DiMaggio Robinson’s

(“Robinson”) wrongful death claim based on the plain language of the Idaho state

statutes. As noted by the majority, Idaho’s wrongful death statute defines “heirs”

as “[t]hose persons who would be entitled to succeed to the property of the

decedent according to the provisions of subsection (22) of section 15-1-201, Idaho

Code.” Idaho Code Ann. § 5-311(2)(a). Section 15-1-201 of Idaho’s Uniform

Probate Code states that “[h]eirs means those persons, including the surviving

spouse, who are entitled under the statues of intestate succession to the property of

a decedent.” Idaho Code Ann. § 15-1-201 (22). Section 15-1-301 of the Probate

Code explains that “this code applies to . . . the property of nonresidents located in

this state or property coming into the control of a fiduciary who is subject to the

laws of this state.” Idaho Code Ann. § 15-1-301. Mr. DiMaggio was a non-

resident and did not have any property in the state of Idaho. Because Mr.

DiMaggio did not have any property in Idaho, Idaho’s intestate succession does not

apply. Robinson is not an “heir” because she is not “entitled under the statutes of

intestate succession to the property of a decedent.” There is nothing in the

language of the Probate Code to suggest that section 15-1-301 is inapplicable to

wrongful death actions.
      The majority relies on section 15-2-103 to support the conclusion that

Robison is DiMaggio’s heir for the purposes of the wrongful death action. Section

15-2-103 only provides the order of intestate succession. See Idaho Code Ann. §

15-2-103 (providing the order of intestate succession if the decedent has no

surviving spouse). The Idaho definition of “heir” first looks at the jurisdictional

requirements in Section 15-1-301 based on the plain language of the statute as

explained above. Because the Probate Code looks first to section 15-1-301, it is

improper to find that Robinson is DiMaggio’s heir under section 15-2-103 because

Idaho’s intestate succession does not apply when a non-resident decedent has no

property in the state.

      The district court properly analyzed section 15-1-301 in concluding that

Robinson is not DiMaggio’s heir and therefore did not have standing to bring a

wrongful death action. I would affirm the district court’s ruling and respectfully

dissent.




                                           2
