Kroncke v. Saldate

130 F. App'x 110

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2005
• Docket: No. 04-15449
• Status: Published

Opinion

MEMORANDUM

**

Robert Earl Kroncke appeals pro se the district court’s order denying his Fed. R.Civ.P. 60(b) motion for relief from judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, see Allmerica Fin. Life Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 665 (9th Cir.1997), and we affirm, and remand.

The district court dismissed Kroncke’s action with prejudice under the Rooker-Feldman doctrine. Kroncke then moved for relief from judgment, arguing that he meant to include only two, not four, causes of action in his federal complaint. The district court did not abuse its discretion by denying Kroncke relief from judgment, because his mistake in alleging two extra causes of action did not eonstitute excusable neglect. See United States ex rel. Familian Northwest, Inc. v. RG & B Contractors, Inc., 21 F.3d 952, 956 (9th Cir.1994) (holding that not every error in the course of litigation will qualify as excusable neglect); see Llewellyn, 139 F.3d at 666 (“[njeither ignorance nor carelessness on the part of the litigant or his attorney provide grounds for relief under Rule 60(b)(1)”) (citation omitted).

To the extent Kroncke challenges the underlying judgment, we do not consider his contentions. See Maraziti v. Thorpe, 52 F.3d 252, 254 (9th Cir.1995) (“an appeal of a denial of a Rule 60(b) motion brings up for review only the denial of the motion, unless it is filed within ten days of the entry of judgment.”). We also do not review the district court’s order denying reconsideration of the order denying relief from judgment because Kroncke did not file an amended notice of appeal from the denial of that order. See Fed. R.App. P. 4(a)(4)(B)(ii).

Kroncke’s remaining contentions lack merit.

A dismissal under the Rooker-Feldman doctrine is a dismissal for lack of subject matter jurisdiction, see Kougasian v. TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir.2004), and therefore, should be without prejudice, see Kelly v. Fleetwood Enterprises, Inc., 377 F.3d 1034, 1036 (9th Cir. 2004). We affirm the district court’s dismissal, but remand with instructions that the district court enter a dismissal without prejudice. See Kelly, 377 F.3d at 1036.

AFFIRMED and REMANDED with instructions to enter dismissal without prejudice.

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.