Terrie Holscher v. Ken Hess

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2021
• Docket: 20-35049
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 20-35049 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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