Dain v. Taira

51 F. App'x 683

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2002
• Docket: No. 02-55027; D.C. No. CV-01-00558-LGB
• Status: Published

Opinion

MEMORANDUM

**

Patrick Dain appeals pro se the district court’s judgment dismissing his action against several Internal Revenue Service employees and denying his motion for reconsideration. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the dismissal de novo, Crist v. Leippe, 138 F.3d 801, 803 (9th Cir.1998), and the denial of reconsideration for an abuse of discretion, Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.2000). We affirm.

The district court properly determined that sovereign immunity barred Dain’s action because his complaint brought claims against federal employees for actions taken within the scope of their employment. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985).

We reject Dain’s contention that only a jury can decide the issue of sovereign immunity. See Fed.R.Civ.P. 12(b)(1); Gilbert, 756 F.2d at 1461 (affirming grant of motion to dismiss on sovereign immunity grounds). We also reject Dain’s contention that the agents were required to answer his complaint before filing their motion to dismiss. See Fed.R.Civ.P. 12(b); Aetna Life Ins. Co. v. Alla Medical Servs. Inc., 855 F.2d 1470, 1474 (9th Cir.1988).

The district court properly denied Dain’s motion for reconsideration because he could have presented his arguments and evidence earlier in the litigation. See Kona Enters., 229 F.3d at 890. Moreover, Dain’s arguments lacked merit. See Gilbert, 756 F.2d at 1458.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.