Yvonne Tse; Timothy Tse, a Minor; Cynthia Tse, a Minor; Andchristina Tse, a Minor, Plaintiffs-appellants, v. the Mirage Casino-hotel, a Nevada Corporation Dba Themirage; Does and Roes, et al., Defendant-appellee, 145 F.3d 1341 (9th Cir. 1998)
Annotate this CaseAppeal from the United States District Court for the District of Nevada, David Warner Hagen, District Judge, Presiding.
Before GOODWIN, PREGERSON and FERGUSON, Circuit Judges.
MEMORANDUM*
Yvonne Tse and her minor children appeal the summary judgment in favor of The Mirage Casino-Hotel (the "Mirage") on her action for damages for the wrongful death of her husband. We affirm. The appeal asserts that her proffered evidence raised a genuine issue of fact: whether her husband ("Dr.Tse") committed suicide or was murdered. She also asserts that the district court erred in denying her motion for leave to amend her complaint. The Mirage seeks sanctions and attorney fees on the grounds that Tse's appeal is frivolous and her counsel violated the Federal Rules of Appellate Procedure.
Viewing the record in the light most favorable to Tse, we conclude that she has failed to show a genuine issue of material fact. Based on the evidence, a reasonable jury could not find that Dr. Tse was murdered. Accordingly, under Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), summary judgment was proper. Because we conclude that summary judgment was proper, we also find that the district court did not abuse its discretion in denying the motion for leave to amend the complaint, as any amendment would have been futile.
The Mirage has asked for sanctions pursuant to Circuit Rule 30-2 for including materials that are irrelevant or not part of the district court record. It has also asked this court to order Tse to pay its attorney fees for filing a frivolous appeal.
Because it does not appear that Tse's counsel included the materials to gain a tactical advantage, we decline to impose sanctions. See Kirshner v. Uniden Corp. of America, 842 F.2d 1074, 1083 (9th Cir. 1988). And while Tse does not have a triable case, her appeal was not frivolous. Cf. Kalombo v. Hughes Market, Inc., 886 F.2d 258, 260 (9th Cir. 1989) (appeal frivolous when in the face of clear contrary Supreme Court precedent).
AFFIRMED. MOTION FOR ATTORNEY FEES AND SANCTION DENIED.
This disposition is not appropriate for publication anday not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
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