Terrie Holscher v. Ken Hess ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRIE HOLSCHER, No. 20-35049
Plaintiff-Appellant, D.C. No. 2:19-cv-00050-BMM
v.
MEMORANDUM*
KEN HESS, in his individual capacity as co-
landlord & owner d/b/a Glacier Mountain
Rentals; LORI HESS, in her individual
capacity as co-landlord & owner d/b/a
Glacier Mountain Rentals,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Terrie Holscher appeals pro se from the district court’s judgment dismissing
her action alleging claims arising out of a lease agreement dispute. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of
subject matter jurisdiction. Prather v. AT&T, Inc., 847 F.3d 1097, 1102 (9th Cir.
2017). We affirm.
The district court properly dismissed Holscher’s action for lack of subject
matter jurisdiction because Holscher failed to allege a federal question or meet the
requirements for diversity jurisdiction. See 28 U.S.C. § 1331 (conferring
jurisdiction on district courts in “civil actions arising under the Constitution, laws,
or treaties of the United States”); 28 U.S.C. § 1332(a)(1) (conferring jurisdiction
on district courts where the plaintiff alleges that the parties are completely diverse
and the amount in controversy exceeds $75,000); see also Shapiro v. McManus,
577 U.S. 39, 45 (2015) (claims that are “wholly insubstantial” or “obviously
frivolous” are insufficient to “raise a substantial federal question for jurisdictional
purposes”); Wilcox v. First Interstate Bank of Or., N.A., 815 F.2d 522, 533 n.1 (9th
Cir. 1987) (there is no separate private right of action for mail fraud under 18
U.S.C. § 1341).
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 instruct the district court to amend the judgment to reflect that the
dismissal is without prejudice.
The district court did not err in declining to address Holscher’s motion to
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amend her complaint because Holscher presented contradictory allegations to the
district court regarding her state citizenship. See NewGen, LLC v. Safe Cig, LLC,
840 F.3d 606, 613-14 (9th Cir. 2016) (“The party seeking to invoke the district
court's diversity jurisdiction always bears the burden of both pleading and proving
diversity jurisdiction.”).
We reject as unsupported by the record Holscher’s contentions that the
district court was biased against her and that she was denied due process.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments or allegations raised for the first time on appeal.
See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED with instructions to amend the judgment.
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