Paul Christiansen v. Lincoln National Life Ins. Co. , 356 F. App'x 968 ( 2009 )

FILED
DEC 14 2009
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL MERRITT CHRISTIANSEN, No. 08-56863
Plaintiff - Appellant, D.C. No. 2:08-cv-03948-PSG-JWJ
v.
MEMORANDUM *
LINCOLN NATIONAL LIFE
INSURANCE CO.,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Paul Merritt Christiansen appeals pro se from the district court’s order
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
JS/Research
dismissing his action for lack of prosecution and lack of subject matter jurisdiction.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
lack of subject matter jurisdiction. Crum v. Circus Circus Enters., 231 F.3d 1129,
1130 (9th Cir. 2000). We review for an abuse of discretion a dismissal for lack of
prosecution. Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998).
We vacate and remand.
Dismissal for lack of prosecution was improper because Christiansen timely
responded to and attempted to comply with the orders to show cause why the
action should not be dismissed. See id. at 401 (reversing dismissal for lack of
prosecution where plaintiffs promptly complied with order to show cause).
We vacate the judgment and remand for further proceedings because
appellee concedes diversity jurisdiction, and it is not clear that Christiansen could
not plead facts establishing diversity jurisdiction if given another opportunity to
amend the complaint. See Snell v. Cleveland, Inc., 316 F.3d 822, 828 & n.6
(9th Cir. 2002) (per curiam) (noting that dismissal without leave to amend is
improper unless it is clear that the complaint could not be saved by amendment,
and ordering the pleadings amended to correct defective jurisdictional allegations
where it was undisputed that complete diversity of citizenship existed).
We deny Christiansen’s request to remand this case to a different judge
JS/Research 2 08-56863
because the record does not indicate that the case presents the rare circumstances
necessary to warrant reassignment. See Hernandez, 138 F.3d at 402–03.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
JS/Research 3 08-56863