Ted Erum, Jr. v. County of Kauai

369 F. App'x 843

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 5, 2010
• Docket: 08-16027, 08-16634, 08-16666
• Status: Unpublished

Opinion

MEMORANDUM **

Ted Erum, Jr., appeals pro se from the order dismissing his action seeking to prevent defendants from cutting monkeypod trees on land intended for commercial development. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal for lack of subject matter jurisdiction. Alvarado v. Table Mt. Rancheria, 509 F.3d 1008, 1015 (9th Cir.2007). We affirm.

The district court properly dismissed Erum’s action because evidence in the record, including Erum’s statements and past behavior, demonstrated that his attempt to amend his complaint to state constitutional violations was solely for the purpose of obtaining federal question subject matter jurisdiction after failing to obtain diversity jurisdiction and his constitutional claim was frivolous and not colorable. See Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n. 10, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

The district court properly dismissed Erum’s action without leave to amend because amendment of the complaint would be futile. See Orsay v. U.S. Dep’t of Justice, 289 F.3d 1125, 1136 (9th Cir.2002); see also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 831, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (“Section 1653 speaks of amending ‘allegations of jurisdiction,’ which suggests that it addresses only incorrect statements about jurisdiction that actually exists, and not defects in the jurisdictional facts themselves.”) (alteration in original).

The district court did not abuse its discretion when it granted only in part defendants’ motion for sanctions. See Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Lem v. IDX Systems Cory., 464 F.3d 951, 961 (9th Cir.2006).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.