FILED

NOT FOR PUBLICATION JUL 14 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

NIKKI POOSHS, No. 08-16338

Plaintiff - Appellant, D.C. No. 3:04-cv-01221-PJH

v.

PHILLIP MORRIS USA, INC.; PHILIP MEMORANDUM *

MORRIS COMPANIES, INC.; R.J.

REYNOLDS TOBACCO HOLDINGS,

INC.; R.J. REYNOLDS TOBACCO

COMPANY; NABISCO GROUP

HOLDINGS CORP.; NABISCO INC.;

BROWN AND WILLIAMSON

TOBACCO CORPORATION,

individually and as successor by merger to The American Tobacco Company and its predecessors in interest; BRITISH

AMERICAN TOBACCO COMPANY

PLC; LORILLARD TOBACCO

COMPANY; LORILLARD INC.;

LIGGETT GROUP INCORPORATED;

LIGGETT & MYERS INC.; LIGGETT

AND MYERS TOBACCO COMPANY;

VECTOR GROUP LTD.; HILL &

KNOWLTON INC; TOBACCO

INSTITUTE, INC.; COUNCIL FOR

TOBACCO RESEARCH USA

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

INCORPORATED; DNA PLANT

TECHNOLOGY, CORPORATION;

SAFEWAY INC.,

Defendants - Appellees.

Appeal from the United States District Court Northern District of California Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted December 12, 2008 San Francisco, California

Before: B. FLETCHER and McKEOWN, Circuit Judges, and HART, District Judge.**

Following certification of certain questions by this court, the California

Supreme Court clarified the state law limitations period applicable to plaintiff’s

claims. Based on that decision, the judgment of the district court is vacated and the

case is remanded for further proceedings consistent with the decision. See Pooshs

v. Phillip Morris USA, Inc., 51 Cal. 4 th 788, 250 P. 3d 181 (2011). Also, the

pending related mandamus petition is moot and will be dismissed .

Because of plaintiff’s illness, the district court is urged to resolve the

remaining issues in this case as soon as possible.

** The Honorable William T. Hart, Senior District Judge for the Northern District of Illinois, sitting by designation.

-2- 08-16338

VACATED AND REMANDED.

-3- 08-16338