REBECCA CANNON V. SPOKANE MERCHANTS ASSOCIATION, No. 12-35012 (9th Cir. 2012)
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FILED NOT FOR PUBLICATION DEC 20 2012 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT REBECCA M. CANNON, Plaintiff - Appellant, No. 12-35012 D.C. No. 2:11-cv-00083-LRS v. MEMORANDUM * SPOKANE MERCHANTS ASSOCIATION, a Washington corporation, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding Argued and Submitted November 7, 2012 Seattle, Washington Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, District Judge.** Appellant Rebecca M. Cannon appeals the district court s judgment dismissing her complaint for lack of subject matter jurisdiction on the basis of the Rooker-Feldman doctrine. We vacate and remand. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Gordon J. Quist, Senior United States District Judge for the Western District of Michigan, sitting by designation. 1. The district court erred in concluding that the Rooker-Feldman doctrine applies to this case. Cannon is not a state-court loser complaining of injuries caused by an allegedly erroneous state court judgment, nor does she seek relief from the state court judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Because she asserts as a legal wrong an allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar jurisdiction. Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). That the subject matter of the federal action may be intertwined with the subject matter of the state court action does not require dismissal under Rooker-Feldman, because Cannon does not seek to bring a de facto appeal of a state court judgment. Id. at 1158 ( Only when there is already a forbidden de facto appeal in federal court does the inextricably intertwined test come into play . . . . ). 2. Because the district court clearly reaffirm[ed] its dismissal of plaintiff s claim on Rooker-Feldman grounds, which is jurisdictional, we construe the court s order to not reach the issue of res judicata, which is an affirmative defense that goes to the merits of Cannon s claims. See Exxon Mobil, 544 U.S. at 293. The applicability of this defense involves issues of state law that were not analyzed by the district court in its order denying reconsideration. Additionally, resolution of this issue requires further development and explication of the factual 2 basis for Cannon s claims than was presented to this court. We therefore decline to reach the applicability of res judicata and leave it to the district court to determine in the first instance should Spokane raise the issue on remand. See Kougasian v. TMSL, Inc., 359 F.3d 1136, 1143-44 (9th Cir. 2004) (discussing examples of state preclusion law and remanding for the district court to determine in the first instance after reversing the district court s dismissal on Rooker-Feldman grounds). VACATED AND REMANDED. 3
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