Unpublished Disposition, 876 F.2d 897 (9th Cir. 1986)

MEMORANDUM^** 

Betty Moss ("Moss") appeals pro se the district court's dismissal without prejudice of her complaint against her former employer, Cedars-Sinai Medical Center, and its workers compensation insurance carrier, Republic Indemnity Insurance Co. of America ("defendants"), for lack of subject matter jurisdiction. We affirm.

FACTS

On October 16, 1986, Moss filed a complaint in federal district court against defendants, entitled "Illegal and deliberate violation of the rights of the plaintiff at the beginning of this case. A faulty decision by the judge based on personal feeling and not the actual facts recorded. Sly fraud." The district court was unable to determine the basis of its jurisdiction and ordered Moss to file an amended complaint properly alleging federal jurisdiction.

Moss filed her amended complaint on November 17, 1986. The amended complaint describes the incidents surrounding her workers compensation action against defendants. Her amended complaint does not address the basis of federal jurisdiction. The district court dismissed Moss's complaint without prejudice for lack of subject matter jurisdiction. Moss timely appeals.

DISCUSSION

Ordinarily, an order dismissing a complaint without prejudice is not appealable under 28 U.S.C. § 1291. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987). However, we may consider such an order final and appealable where it appears that the district court intended dismissal to dispose of the action. Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984) (plaintiff's claims could not be brought in federal court because barred by Eleventh Amendment). Because the district court had already given Moss an opportunity to amend her complaint to allege federal subject matter jurisdiction, we read the district court's order as final on the issue of federal jurisdiction.

We review de novo the existence of subject matter jurisdiction. Atkinson v. United States, 825 F.2d 202, 204 (9th Cir. 1987), cert. denied, 108 S. Ct. 1288 (1988). Federal courts are courts of limited jurisdiction. Bell v. New Jersey, 461 U.S. 773, 777 (1983). Federal jurisdiction must affirmatively appear in the complaint. United Air Lines v. Div. of Indus. Safety, 633 F.2d 814, 815 (9th Cir. 1980). No jurisdictional statement appears in Moss's complaint, even though the district court specifically ordered her to amend her complaint to include such a statement.

Even were we to construe Moss's complaint liberally, we see no basis for federal jurisdiction. Jurisdiction could not be based on diversity, because Moss does not state that the amount in controversy exceeds the sum of $10,000 and is between citizens of different states. 28 U.S.C. § 1332(a) (1); Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986) (party asserting diversity jurisdiction has burden of proof).¹ 

Nor does jurisdiction appear to be based on a right arising under the Constitution or a law of the United States. 28 U.S.C. § 1331. Federal question jurisdiction under Sec. 1331 requires that the federal right asserted be an essential element of the plaintiff's claim. United Air Lines, 633 F.2d at 816. Moss's action appears to be based on the denial of her workers compensation claim, a matter which involves the application of state, not federal, law. See Cal.Labor Code Secs. 5300 et seq. Thus, there is no federal question jurisdiction. See United Air Lines, 633 F.2d at 816.

Moss does not allege that there was a general problem with state procedures; she alleges only that the workers' compensation judge made mistakes and the Workers' Compensation Appeals Board did not correct those mistakes. Again, such a claim does not confer federal question jurisdiction. See Worldwide Church of God v. McNair, 805 F.2d 888, 891-92 (9th Cir. 1986).

Moss has not specifically addressed the issue of subject matter jurisdiction in her opening brief or in her motion "to cont. added brief information." There being no basis for federal subject matter jurisdiction apparent in Moss's pleadings, and no basis evident from Moss's briefs on appeal, we conclude that the district court did not err in dismissing Moss's action for lack of subject matter jurisdiction. The district court did not reach the merits; therefore we note that neither its decision nor ours has any preclusive effect on the merits if Moss were to file a complaint in the appropriate forum.

AFFIRMED.