The Byrds did not carry their burden before the district court. In pretrial proceedings the Byrds never presented any evidence, by affidavit or otherwise, establishing that they were successors in interest to Sylvan Byrd. The Byrds then proceeded through an entire trial without making any argument or introducing any evidence concerning their representational capacity. Not until that trial was over did they submit a proposed amended complaint that contained a single sentence alleging that they were suing as successors in interest. Their accompanying briefing said nothing about whether their Fourth Amendment claim passed the four-part test governing modifications of pretrial orders. Under these circumstances, the district court did not abuse its discretion when it denied the Byrds' motion to modify the pretrial order.

3. Did the district court err in denying that portion of the Byrds' motion to modify the pretrial order that sought to set forth more fully the pendant state tort claims?

In their motion to modify the pretrial order, the Byrds sought to add state tort claims. The Officers responded that the Byrds had never included any state tort claims in the pretrial order and had not shown the manifest injustice necessary to modify the order to add those claims. Once again, the district court denied the motion to modify without explanation. Our standard of review is the same as in the preceding section. And once again, we find that the reasons for the district court's decision are apparent from the record, and that the district did not abuse its discretion.

Count Two of the Byrds' complaint contained a wrongful death claim under California law. The Byrds did not include any specific reference to their state tort claim in the pretrial order. But in the section of the order entitled "facts [that] remain to be litigated," the Byrds included a footnote reading as follows: "Plaintiff or Plaintiffs incorporate in this paragraph by this reference all issues raised in the operative complaint and in the Memorandum of Contentions of Fact and Law."

The Byrds' "Memorandum of Contentions of Fact and Law" is a six-page brief concerning the issues to be tried. It contains no mention whatsoever of any state tort claims. The Byrds assert, however, that their complaint asserted state tort claims and was incorporated into the pretrial order by the footnoted reference.

We disagree. The footnote's placement-in the section of the pretrial order listing "facts remain[ing] to be litigated"-indicates that at most, only the complaint's statement of facts, and not its recitation of legal claims under state tort law, was incorporated by reference. This narrow interpretation of the Byrds' attempt to incorporate the complaint by reference is buttressed by their failure to incorporate the complaint into that section of the pretrial order entitled "issues of law remain[ing] to be litigated."

The Byrds' vague attempt to incorporate claims by reference defeated the goal of Fed.R.Civ.P. 16(c) to specifically identify the issues for trial. See First National, 652 F.2d at 886. In First National, we held that the pretrial order was designed to "simplify issues and avoid unnecessary proof," and we warned that "[d]isregard of these principles would bring back the days of trial by ambush." Id. at 886. It would work a manifest injustice on the Officers to allow the Byrds to add tort claims that were not specifically mentioned in the pretrial order and were not addressed in any way during the trial. Under these circumstances, we find that the district court did not abuse its discretion in denying the Byrds' proposed amendment.

4. Did the district court err in dismissing the Byrds' Fourteenth Amendment claims?

The Byrds argued to the district court that even if they could not recover under § 1983 for the violation of Sylvan's Fourth Amendment rights, they could recover for the violation of their own rights under the Fourteenth Amendment. The Byrds alleged that their liberty interest in the companionship and society of Sylvan was violated. The Officers responded that the Byrds spent the entire trial arguing that the Officers did not act reasonably, and failed to assert that the Officers acted with deliberate indifference, the applicable standard for the Fourteenth Amendment.

The district court dismissed the case on summary judgment without explanation. But the transcript of argument shows the district court's reasoning. During this oral argument, counsel raised the possibility that the Fourth Amendment claim was governed by a reasonableness standard while the Fourteenth Amendment claim was governed by a deliberate indifference standard. Counsel for the Byrds suggested giving the jury two verdict forms with a different standard on each. The district court responded that "the defendants in my estimation would have been disadvantaged in that they did not start out understanding that they would have to defend on the basis of reckless indifference." Transcript at 680, ll. 13-16. Byrds' counsel stated "I didn't either." Id. at l. 17. The district court then added the following: "That may be. Then to instruct the jury about that when neither side clearly had it in focus nor did the Court, then I think that would be imminently unfair." Id. at ll. 18-20.

It thus appears that the district court dismissed the Fourteenth Amendment claim because (1) the court believed that the claim was governed by a different standard-deliberate indifference-than the Fourth Amendment claim; (2) the Byrds had not pursued the Fourteenth Amendment claim at trial; and (3) it would be unfair to the Officers to insert a claim governed by an entirely different standard from the claim litigated at trial on the eve of closing argument.

This logic holds together so long as the two claims are truly governed by different standards. But if they are governed by the same standard, the Byrds' evidence at trial established both claims, and both should have been submitted to the jury. Thus, the threshold issue is whether the claims are governed by different standards.

Section 1983 "contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right." Daniels v. Williams, 474 U.S. 327, 330, 106 S. Ct. 662, 664, 88 L. Ed. 2d 662 (1986). The underlying constitutional rights at issue here are the Fourteenth Amendment liberty interests of a mother and wife in the society and companionship of the deceased.

The parties were unable to present any on-point authority to the district court concerning the standard governing the Byrds' Fourteenth Amendment claim for loss of society. After the district court's decision, another district court in this Circuit held that a parent's Fourteenth Amendment claim for the death of her son during an arrest by police was governed by the deliberate indifference standard. See Smoot v. City of Placentia, 950 F. Supp. 282, 283 (C.D.Cal.1997). Smoot held that the "mother's case is not covered by the 'objective reasonableness' proof standard applied in Section 1983 excessive force cases because her case is not based on that theory." Id. (footnote omitted). Instead, her claim was governed, the court held, by the deliberate indifference standard most recently discussed in Lewis v. Sacramento County, 98 F.3d 434, 441 (9th Cir.1996), cert. granted, --- U.S. ----, 117 S. Ct. 2406, 138 L. Ed. 2d 173 (1997). Id.

Lewis was a case brought by the parents of a boy killed during a high-speed police pursuit. The parents sued as personal representatives of their son's estate, Id. at 434, but did not bring any Fourth Amendment claim. Id. at 438 n. 3. Instead, the parents alleged "a deprivation of their son's Fourteenth Amendment due process rights in violation of ... § 1983." Id. at 437. The Circuit held that "the appropriate degree of fault to be applied to high-speed police pursuits is deliberate indifference to, or reckless disregard for, a person's right to life and personal security." Id. at 441.

Lewis did confine its holding to its facts: "We do not here decide whether deliberate indifference or reckless disregard is the minimum standard for all substantive due process violations; we decide only that this standard of conduct is the minimum required to sustain a § 1983 claim in the context of a high-speed police pursuit." Id.

Lewis is distinguishable, the Byrds assert, because the parents there did not bring any Fourth Amendment claim. The Byrds assert that even though their loss of society claims arise under the Fourteenth Amendment, the real basis for those claims is the violation of Sylvan's Fourth Amendment rights. Thus, their Fourteenth Amendment claims should be governed by the "objective reasonableness" standard applicable to claims brought under the Fourth Amendment.

This argument has surface appeal: If the police kill a person, why should the claim of the surviving spouse for loss of society be governed by a different standard than the claim of the deceased's estate? The surviving spouse and the estate have both suffered a loss by the killing. It would certainly simplify jury instructions if the claims of the surviving spouse and the estate, often brought in the same action, were both governed by the objective reasonableness standard.

But there is binding and persuasive authority otherwise. The Supreme Court has stated that "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 425, 58 L. Ed. 2d 387 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 966-67, 22 L. Ed. 2d 176 (1969)). If the Byrds' argument is adopted, the Byrds would be entitled to damages for loss of society if Sylvan's Fourth Amendment rights were violated. In essence, the Byrds would be vicariously asserting Sylvan's Fourth Amendment rights, in violation of Rakas's admonition.

To avoid this dilemma, the Byrds' claim must be governed by a different standard than Sylvan's claim. This holding is consistent with our recognition in Curnow v. Ridgecrest Police, 952 F.2d 321 (9th Cir.1991), that a parent's loss of a child's society "raises a different constitutional claim" than the child's direct Fourth Amendment claim. Id. at 325.

To prove their Fourteenth Amendment claim, the Byrds had to prove that the Officers acted with deliberate indifference to the Byrds' rights of familial relationship and society by using excessive force against Sylvan Byrd. See Lewis, 98 F.3d at 441; Smoot, 950 F. Supp. at 283. But at trial, the Byrds proceeded entirely under the Fourth Amendment's objective reasonableness test. The district court correctly reasoned that it would be unfair to submit the Fourteenth Amendment claim to the jury when there had been no evidence on it during trial. We therefore affirm the district court on this issue.

5. Did the court err in admitting a computer simulation of the shooting?

The district court granted the Officers' motion in limine to admit a computer animation of the shooting so long as "all facial expressions are removed." The district court then reviewed the tape at trial outside the presence of the jury and admitted it, finding that it complied with his order to remove facial expressions and was not unduly prejudicial.

The Byrds now assert that the tape should not have been admitted because Sylvan is portrayed as "a nutty android... like somebody who is crazed." The tape should have been excluded under Rule 403, the Byrds assert, because its probative value was substantially outweighed by the danger of unfair prejudice.

Evidentiary rulings are reviewed for an abuse of discretion, and should not be reversed absent some prejudice. See Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1399 (9th Cir.1996). We cannot say that the district court abused its discretion here, and therefore reject the Byrds' challenge to the evidentiary ruling.

6. Did the district court err in refusing to reopen discovery on Monell issues?

At the pretrial conference, the district court gave the City a period of time to file a motion for summary judgment on the ground that there was no evidence of a policy or custom of excessive force by city police officers, as required by Monell. In response, at that same conference, the Byrds made an oral motion to reopen discovery because they expected to obtain evidence that Officer VanHolt had excessive force claims in the past that were ignored by the City. The district court denied the oral motion on the ground that the Byrds had already had enough time to conduct discovery.

After the city filed its summary judgment motion, the Byrds filed a response and made another request to reopen discovery, this time filing a written request under Rule 56(f). The district court granted the city's summary judgment motion without explanation and did not rule on the written Rule 56(f) request.

If a district court fails to address a Rule 56(f) motion before granting summary judgment, the omission is reviewed de novo. See Qualls v. Blue Cross, 22 F.3d 839, 844 (9th Cir.1994). But if the district court does address, and denies, a Rule 56(f) motion, that decision is reviewed for an abuse of discretion. Id.

Although the district court in this case never ruled on the written Rule 56(f) motion, it did deny the Byrds' oral motion made at the pretrial conference. That oral motion, seeking to reopen discovery on the summary judgment issue, was essentially a Rule 56(f) motion. Because it had already ruled once, the district court had no need to address the issue again when it reappeared in the written motion. Thus. we shall review the district court's decision for an abuse of discretion.

"We will only find that the district court abused its discretion if the movant diligently pursued its previous discovery opportunities, and if the movant can show how allowing additional discovery would have precluded summary judgment." Qualls, 22 F.3d at 844 (emphasis in original). In this case, the complaint was filed on January 29, 1993. The pretrial order states that the discovery cutoff date was April 5, 1994. Even assuming that the Byrds had to wait some months after filing their complaint to begin discovery under Fed.R.Civ.P. 26(d), they still had many months to complete discovery. The Byrds' only excuse is that they had "few resources" and "had tailored their discovery to meet the needs of the case." See Appellants' Opening Brief at 32. This is not a diligent pursuit of prior discovery opportunities under Qualls. We affirm the district court on this issue.

AFFIRMED.