NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 7 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL MATUS, by and through personal No. 23-16134 representative estate of Arlene Matus, D.C. No. 4:22-cv-00502-JAS Plaintiff-Appellant,

v. MEMORANDUM*

KUSTOM US, INC., an Ohio corporation,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona James Alan Soto, District Judge, Presiding

Argued and Submitted July 18, 2024 San Francisco, California

Before: M. SMITH, BENNETT, and JOHNSTONE, Circuit Judges.

Arlene Matus was struck and killed by a truck driven by an employee of

Kustom US, Inc. (“Kustom”). Her estate (“the Estate”) sued Kustom under

Arizona’s survival statute, seeking $2,000 in damages for Matus’s funeral

expenses and between $340,000 and $370,000 in damages for Matus’s loss of

future earnings. The district court dismissed the case for lack of subject matter

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. jurisdiction because it determined that future economic damages were unavailable

under Arizona’s survival statute, and the $2,000 in funeral expenses was

insufficient to meet the amount in controversy requirement for diversity

jurisdiction. The Estate now appeals, arguing that Arizona’s survival statute

allows for future economic damages. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

“We review the district court’s grant of a motion to dismiss de novo.”

Garity v. APWU Nat’l Lab. Org., 828 F.3d 848, 854 (9th Cir. 2016) (quoting

Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005)). “We also review de novo

the district court’s application of state law.” Judd v. Weinstein, 967 F.3d 952, 955

(9th Cir. 2020).

1. We affirm the district court’s holding that future economic damages

are unavailable under Arizona’s survival statute, Ariz. Rev. Stat. § 14-3110.1

“Federal courts are required to ‘ascertain from all the available data what the state

1 Arizona’s survival statute provides:

Every cause of action, except a cause of action for damages for breach of promise to marry, seduction, libel, slander, separate maintenance, alimony, loss of consortium or invasion of the right of privacy, shall survive the death of the person entitled thereto or liable therefor, and may be asserted by or against the personal representative of such person, provided that upon the death of the person injured, damages for pain and suffering of such injured person shall not be allowed.

Ariz. Rev. Stat. § 14-3110.

2 law is and apply it rather than to prescribe a different rule, however superior it may

appear from the viewpoint of “general law” and however much the state rule may

have departed from prior decisions of the federal courts.’” Judd, 967 F.3d at 955

(quoting Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1266 (9th Cir. 2017)).

“Where the state’s highest court has not squarely addressed an issue, we must

‘predict how the highest state court would decide the issue using intermediate

appellate court decisions, decisions from other jurisdictions, statutes, treatises, and

restatements as guidance.’” Id. at 955–56 (quoting Lewis v. Tel. Emps. Credit

Union, 87 F.3d 1537, 1545 (9th Cir. 1996)).

Although the Arizona Supreme Court has not addressed whether Arizona’s

survival statute allows recovery of future economic damages, several Arizona

Court of Appeals cases have held that the survival statute only allows for damages

that accrued before death, and the Arizona Supreme Court has recently declined to

review two of those decisions. Barragan v. Superior Ct. of Pima Cnty., 470 P.2d

722, 724 (Ariz. Ct. App. 1970) (“In general, a survival statute provides for

recovery of damages sustained by the deceased party from the time of accident

until his death.”); Rodriguez v. Lytle, No. 1 CA-CV 20-0048, 2021 WL 566293, at

*2 (Ariz. Ct. App. Feb. 16, 2021) (“Arizona courts have interpreted the [survival]

statute, since 1970, to limit the scope of economic damages to those ‘sustained . . .

from the time of accident until his death.’” (quoting Barragan, 470 P.2d at 724)),

3 review denied (Jan. 4, 2022); Popal v. Beck, No. 1 CA-CV 20-0346, 2022 WL

457363, at *3–4 (Ariz. Ct. App. Feb. 15, 2022) (agreeing with Barragan and

Rodriguez), review denied (Aug. 23, 2022). And decisions by an intermediate

appellate state court should not “be disregarded by a federal court unless it is

convinced by other persuasive data that the highest court of the state would decide

otherwise.” Herrera v. Zumiez, Inc., 953 F.3d 1063, 1069 (9th Cir. 2020) (quoting

West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940)). “This is the more so

where, as in this case, the highest court has refused to review the lower court’s

decision.” Id. (quoting Am. Tel. & Tel. Co., 311 U.S. at 237). We see no “other

persuasive data,” id., that the Arizona Supreme Court would decide differently

than Barragan, Rodriguez, and Popal.

2. Given that the Arizona Supreme Court has, in recent years, twice

denied review on this question, we decline to exercise our discretion to certify it to

that court. Childress v. Costco Wholesale Corp., 978 F.3d 664, 666 (9th Cir. 2020)

(“We invoke the certification process only after careful consideration and do not

do so lightly.” (quoting Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003)).

AFFIRMED.

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