Douglas L. Prestidge v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS L. PRESTIDGE,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 13-16848
D.C. No. 4:11-cv-00198-RCC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Douglas L. Prestidge appeals pro se from the district court’s summary
judgment in his Federal Tort Claims Act (“FTCA”) action alleging medical
malpractice in connection with treatment provided by the Department of Veterans
Affairs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
FILED
JUL 31 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.
The district court properly granted summary judgment on Prestidge’s
medical malpractice claim because Prestidge failed to raise a genuine dispute of
material fact as to whether defendant’s treatment failed to meet the standard of
care. See Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006) (in an FTCA
action, the law of the state in which the alleged tort occurred applies); Seisinger v.
Siebel, 203 P.3d 483, 492-93 (Ariz. 2009) (elements of medical malpractice claim
under Arizona law; except in situations where it is a matter of common knowledge,
“the standard of care normally must be established by expert medical testimony,”
and failure to produce the required expert testimony mandates judgment for
defendant).
The district court did not abuse its discretion in setting aside the entry of
default based on its finding of good cause. See United States v. Signed Personal
Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (standard
of review and requirements for setting aside entry of default); Brady v. United
States, 211 F.3d 499, 502, 504 (9th Cir. 2000) (standard of review; a district
court’s discretion is “especially broad” when setting aside entry of default).
We reject Prestidge’s contention that the district court erred by not granting
his request for oral argument, as the district court was not required to do so under
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the local rules and, in any event, there is no showing of prejudice. See Houston v.
Bryan, 725 F.2d 516, 518 (9th Cir. 1984).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Prestidge’s motion to schedule oral argument, filed on February 6, 2014, and
request for oral argument set forth in his opening brief, are denied.
AFFIRMED.
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