Roberta Mergenthaler, Surviving Spouse and Personal Representative of the Estate of Buddy Gene Mergenthaler v. Caterpillar, a Foreign Corporation Johnson Controls, Inc., Formerly Globe-Union, a Wisconsin Corporation

46 F.3d 1143 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Roberta MERGENTHALER, surviving spouse and personal representative of the Estate of Buddy Gene Mergenthaler, Plaintiff-Appellant, v. CATERPILLAR, a foreign corporation; Johnson Controls, Inc., formerly Globe-Union, a Wisconsin corporation, Defendants-Appellees. No. 94-35096. United States Court of Appeals, Ninth Circuit. Argued and Submitted: Jan. 12, 1995. Decided: Jan. 19, 1995. 1 Before: WRIGHT and BRUNETTI, Circuit Judges, and GONZALEZ * , District Judge. 2 MEMORANDUM ** 3 The district court (Lovell, J.) awarded Johnson Controls summary judgment on Mergenthaler's diversity action because the Montana statute of limitations barred the action. Mergenthaler agreed to dismiss the action against Caterpillar with prejudice thereafter. We have jurisdiction according to 28 U.S.C. Sec. 1291 , and affirm. 4 We review the district court's grant of summary judgment and application of Montana law de novo. See Jesinger v.…