Patricia Harding Morrison v. Quest Diagnostics Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA HARDING MORRISON,
Plaintiff-Appellant,
v.
QUEST DIAGNOSTICS INC.; et al.,
Defendants-Appellees.
No. 16-17050
D.C. No. 2:14-cv-01207-RFB-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Patricia Harding Morrison, the surviving spouse of Tommy Morrison,
appeals pro se from the district court’s summary judgment in her diversity action
alleging state law claims. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2003). We affirm.
The district court properly granted summary judgment because Morrison
failed to raise a genuine dispute of material fact as to whether her claims were not
time-barred. See Nev. Rev. Stat. § 11.190 (2015) (setting forth relevant two year
and three year statutes of limitations); Orr v. Bank of Am., NT & SA, 285 F.3d 764,
780 (9th Cir. 2002) (under Nevada law, “the statute of limitations begins to run
when the wrong occurs and a party sustains injuries for which relief could be
sought” (citation and internal quotation marks omitted)); Schwartz v.
Wasserburger, 30 P.3d 1114, 1117 (Nev. 2001) (“[A] personal representative
inherits the benefits and burdens connected with the running of any applicable
statute of limitations, measured from when the cause of action first accrued in
favor of the decedent.”). Contrary to Morrison’s contentions, she is not entitled to
tolling. See Orr, 285 F.3d at 780 (“[W]hen ‘uncontroverted evidence proves that
the plaintiff discovered or should have discovered the facts giving rise to the
claim,’ such a determination can be made as a matter of law.” (quoting Siragusa v.
Brown, 971 P.2d 801, 812 (Nev. 1998))).
Morrison forfeited her opportunity to appeal the denial of her motion for
leave to file a second amended complaint because she did not file objections to the
magistrate judge’s order. See Simpson v. Lear Astronics Corp., 77 F.3d 1170,
1174 (9th Cir. 1996) (“[A] party who fails to file timely objections to a magistrate

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judge’s nondispositive order with the district judge to whom the case is assigned
forfeits its right to appellate review of that order.”).
We reject as meritless Morrison’s contentions that defendants’ summary
judgment brief was untimely, and that defense counsel acted improperly.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). We do not
consider documents and facts not presented to the district court. See United States
v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to
the district court are not part of the record on appeal.”).
AFFIRMED.

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