George Mutascu v. Emil Botezatu ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE MUTASCU, No. 18-55702
Plaintiff-Appellant, D.C. No. 2:15-cv-07066-DDP-AFM
v.
MEMORANDUM*
EMIL BOTEZATU,
Defendant-Appellee,
and
DOES, 1-10,
Defendant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, and FRIEDLAND and BENNETT, Circuit
Judges.
George Mutascu appeals pro se from the district court’s judgment dismissing
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his diversity action alleging a state law claim. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Naffe v. Frey, 789
F.3d 1030, 1035 (9th Cir. 2015). We affirm.
The district court properly dismissed Mutascu’s action for lack of subject
matter jurisdiction because Mutascu failed to allege facts sufficient to show that
there is complete diversity between the parties. See 28 U.S.C. § 1332(a); Cheng v.
Boeing Co., 708 F.2d 1406, 1412 (9th Cir. 1983) (“Diversity jurisdiction does not
encompass foreign plaintiffs suing foreign defendants.”). However, a dismissal for
lack of subject matter jurisdiction should be without prejudice. See Kelly v.
Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004). We affirm the
dismissal, and instruct the district court to amend the judgment to reflect that the
judgment is without prejudice.
AFFIRMED with instructions to amend the judgment.
2 18-55702