                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 22 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NAM SOON JEON, individually and as               No. 13-16799
Estate administrator of her deceased
husband Jun Sung Kwak,                           D.C. No. 1:11-cv-00015-SOM-
                                                 BMK
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

445 SEASIDE, INC.; et al.,

              Defendants - Appellees.



NAM SOON JEON, individually and as               No. 13-16904
Estate administrator of her deceased
husband Jun Sung Kwak,                           D.C. No. 1:11-cv-00015-SOM-
                                                 BMK
              Plaintiff - Appellee,

 v.

445 SEASIDE, INC.,

              Defendant - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NAM SOON JEON, individually and as                No. 14-15736
Estate administrator of her deceased
husband Jun Sung Kwak,                            D.C. No. 1:11-cv-00015-SOM-
                                                  BMK
              Plaintiff - Appellant,

 v.

445 SEASIDE, INC.; et al.,

              Defendants - Appellees.


                   Appeals from the United States District Court
                             for the District of Hawaii
                Susan Oki Mollway, Chief District Judge, Presiding

                      Argued and Submitted February 12, 2016
                                Honolulu, Hawaii

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

      Plaintiff Nam Soon Jeon brought this negligence action against defendants

after her husband, Jun Sung Kwak, tragically drowned in a swimming pool. After

Jeon had presented her case to a jury, the district court granted judgment as a

matter of law in favor of defendants. It held that Jeon had failed to introduce

sufficient evidence showing that defendants had caused Kwak’s death. Jeon

appeals this ruling, and she also appeals the district court’s imposition of a $5,000

appeal bond against her. We affirm.

      We review a district court’s grant of judgment as a matter of law de novo,

Hunt v. Cty. of Orange, 672 F.3d 606, 611 (9th Cir. 2012), and we must draw all
reasonable inferences in favor of Jeon, City Solutions Inc. v. Clear Channel

Commc’ns, Inc., 365 F.3d 835, 839 (9th Cir. 2004). Nevertheless, judgment as a

matter of law is appropriate where “a reasonable jury would not have a legally

sufficient evidentiary basis” to find for Jeon on a necessary element of her claim.

Fed. R. Civ. P. 50(a)(1).

      In order to prevail on her negligence claim, Jeon must prove causation.

Miyamoto v. Lum, 84 P.3d 509, 523 (Haw. 2004). The mere co-existence of

negligence and Kwak’s death, or the existence of negligence prior to Kwak’s

death, is not enough to establish causation under Hawai’i law. Mitchell v. Branch,

363 P.3d 969, 973 (Haw. 1961). Instead, Jeon must prove that defendants’

negligent acts were “more likely than not” a substantial factor in causing his death.

Doe Parents No. 1 v. State, Dep't of Educ., 58 P.3d 545, 596 (Haw. 2002) (internal

quotation marks omitted).

      Jeon had insufficient evidence for a reasonable jury to find that defendants’

acts were more likely than not a substantial factor in causing Kwak’s death. If

defendants had complied with Jeon’s proposed standard of care, such as by

monitoring the pool area with better video equipment, there is insufficient evidence

that Kwak’s outcome would have been any different. For example, there was

insufficient evidence to show that defendants should have noticed Kwak drowning


                                          3
sooner, or that defendants should have responded more quickly. On this record, no

reasonable jury could find that defendants’ alleged negligence was a substantial

factor in Kwak’s death. Because this is a sufficient basis to affirm the judgment in

defendants’ favor, we need not address the parties’ other arguments relating to the

district court’s grant of judgment as a matter of law.

      Finally, Jeon contends that the district court erred by requiring her to post a

$5,000 appeal bond. We disagree. The determination of the amount of a bond

necessary to ensure payment of costs on appeal is left to the discretion of the

district court, and we are unable to find an abuse of discretion on this record. Fed.

R. App. P. 7; see also Azizian v. Federated Dep’t Stores, Inc., 499 F.3d 950, 955

(9th Cir. 2007).

      AFFIRMED.




                                           4
