Dull v. American Diabetes Ass'n

43 F. App'x 144

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 31, 2002
• Docket: No. 02-35287
• Status: Published

Opinion

MEMORANDUM

**

Stanlee Dull appeals the district court’s judgment dismissing for lack of judsdiction her complaint against her employer, the American Diabetes Association, alleging that she was sexually harassed and then retaliated against for complaining of the harassment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal for lack of subject matter jurisdiction, Sommatino v. United States, 255 F.3d 704, 707 (9th Cir.2001), and reverse and remand.

The district court correctly concluded that the jurisdictional allegations of the complaint are insufficient. The complaint does not allege the number of employees employed by the American Diabetes Association and thus does not include all of the factual allegations necessary to establish jurisdiction pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. However, it is not clear that the court lacks jurisdiction. Therefore, the district court erred by dismissing the complaint without providing Dull with an opportunity to amend. See Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 651 n. 6 (9th Cir.1984); May Dep’t Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir.1980).

Dull shall bear her own costs on appeal.

REVERSED and REMANDED.

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