                                                                                  FILED
                            NOT FOR PUBLICATION                                    JUN 12 2015

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                              U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


NICHOLAS REGTER,                                 No. 13-56089

              Plaintiff - Appellant,             D.C. No. 8:13-cv-00014-R-SS

 v.
                                                 MEMORANDUM*
STRYKER CORPORATION and
STRYKER SALES CORPORATION,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                        Argued and Submitted June 5, 2015
                              Pasadena, California

Before: BYBEE and BEA, Circuit Judges and FOOTE,** District Judge.

      Plaintiff Nicholas Regter appeals the district court’s decision to grant

defendants-appellees’ motion to dismiss his First Amended Complaint (“FAC”).

The district court found the complaint’s allegations establish the statute of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Elizabeth E. Foote, District Judge for the U.S. District
Court for the Western District of Louisiana, sitting by designation.
limitations had expired on Regter’s claims. We have jurisdiction under 28 U.S.C.

§ 1291 and review the district court’s decision de novo. Johnson v. Lucent Techs.

Inc., 653 F.3d 1000, 1005 (9th Cir. 2011).

      Under the California law applicable in this diversity case, the statute of

limitations “for an injury to an individual caused by the wrongful act or neglect of

another” is two years. Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 921 n.3

(Cal. 2005); Cal. Civ. Proc. Code § 335.1. The FAC alleged Regter had surgery on

his shoulder in January 2007, immediately after which Regter used one of the

defendants-appellees’ allegedly defective pain pumps to manage his pain. The

FAC also alleged Regter became aware of the shoulder injury at issue in June 2010

when his doctor diagnosed him with a condition consistent with chondrolysis.

Finally, the FAC alleged Regter pursued medical attention for the cartilage

degeneration (chondrolysis) in his shoulder between 2007 and 2012, but that his

doctors did not advise him until February 2012 that the defendants-appellees’ pain

pump potentially caused his chondrolysis. Regter filed his initial complaint against

defendants-appellees in November 2012, and thus outside the two-year period after

his initial shoulder injury diagnosis, but within two years of his first being advised

by his doctor of the pain pump’s role in causing his injury. The FAC alleges

sufficient facts to support application of the “discovery rule” under California law.


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Fox, 110 P.3d at 921 (explaining the “discovery rule” tolls the statute of limitations

if the plaintiff can “show (1) the time and manner of discovery and (2) the inability

to have made earlier discovery despite reasonable diligence.” (citation omitted)).

Regter adequately alleged that he was reasonably diligent in discovering the cause

of his injury when he alleged that he sought medical attention and relied on his

treating physician to inform him of the injury’s cause. The district court therefore

erred in granting the defendants-appellees’ motion to dismiss the FAC with

prejudice. We reverse and remand to the district court for further proceedings,

including, if necessary, leave to amend the FAC further.

REVERSED AND REMANDED.




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