Unpublished Disposition, 931 F.2d 61 (9th Cir. 1989)

MEMORANDUM^** 

Rod C. Slater appeals pro se the district court's summary judgment in favor of O'Brien's Moving and Storage, Inc., Sean O'Brien, Nancy O'Brien, and Bernice O'Brien ("O'Brien's") in his action for conversion, breach of contract, and fraud stemming from O'Brien's sale of Slater's personal property which was stored with O'Brien's. The district court found that it lacked jurisdiction and that Slater's claim was barred by the statute of limitations. Slater contends that the district court erred in granting summary judgment because he was denied due process by the state courts and there was no final judgment on the merits for res judicata purposes. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). We also review a dismissal for lack of subject matter jurisdiction de novo. Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 362, 363 (9th Cir. 1986).

The district court has subject matter jurisdiction over diversity cases where the amount in controversy exceeds $50,000. 28 U.S.C. § 1332. Congress raised the amount in controversy requirement from $10,000 to $50,000 on November 19, 1988, effective May 18, 1989. See Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702, Sec. 201, 102 Stat. 4642, 4646 (1988) (amending 28 U.S.C. § 1332). The amount in controversy is generally determined from the face of the pleadings. Pachinger, 802 F.2d at 363.

Slater filed his first complaint in district court on May 24, 1989, alleging $40,000 in damages. Although Slater subsequently filed two amended complaints, he never increased the amount in controversy. Because Slater failed to allege $50,000 in damages, as required under section 1332, the district court lacked subject matter jurisdiction to hear this action.

Slater contends that because he is pro se, he should have been notified of the change in section 1332 and given the opportunity to amend. However, if it is absolutely clear that a complaint's deficiencies cannot be cured by amendment, dismissal without amendment is appropriate. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Even if a complaint alleges the correct jurisdictional amount, dismissal for lack of jurisdiction is appropriate if it appears to a legal certainty that the claim is really for less. Pachinger, 802 F.2d at 364. Here, it appears to a legal certainty that Slater cannot allege $50,000 in damages in his action against O'Brien's because (1) his claim for conversion is barred by res judicata, (2) his claim for fraud is time barred, and (3) his damages for breach of contract are limited by the terms of the contract to an amount below $50,000.

First, Slater had already brought his claim for conversion in Nevada state court. The state court found that there was no conversion as a matter of law, Slater v. O'Brien's Moving and Storage, Inc., No. 86-8457, and the Nevada Supreme Court dismissed Slater's appeal, No. 18875. Under the doctrine of res judicata, a final judgment on the merits bars further claims based on the same cause of action. See Montana v. United States, 440 U.S. 147, 153 (1979). Federal courts are required to give "full faith and credit" to state judicial proceedings. 28 U.S.C. § 1738; Gilbert v. Ben-Asher, 900 F.2d 1407, 1410 (9th Cir. 1990), cert. denied, 111 S. Ct. 177 (1990). Thus, we look to Nevada law of res judicata and give the state court judgment the same preclusive effect as would the state's own courts. Gilbert, 900 F.2d at 1410. In Nevada, a final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights and privileges of the parties, and as to those parties, constitutes an absolute bar to a subsequent action which involves the same claim, demand, and cause of action. Paradise Palms Community Assoc. v. Paradise Homes, 89 Nev. 27, 30-31, 505 P.2d 596, 598-99 (1973), cert. denied, 414 U.S. 865 (1973). Because the Nevada state courts rendered a final judgment on the merits of Slater's conversion claim against O'Brien's, that claim is barred by res judicata.

Second, Slater's claim for fraud is barred by the statute of limitations. In Nevada, actions for fraud must be commenced within three years of discovery of the frauD. Nev. Rev.Stat. Sec. 11.190(3) (d). Slater admits that he discovered that O'Brien's had sold his goods in March of 1984. Slater commenced this action in district court on May 24, 1989, more than four years after discovery of the alleged fraud. Thus, Slater's action for fraud is time barred.

Finally, Slater's damages for breach of contract are limited by the contract. Slater signed a contract for storage of his goods with O'Brien's limiting his damages for loss or sale of the goods to 30cents per pound. Slater's goods weighed no more than 1,000 pounds, and he was billed for 1,000 pounds, which is O'Brien's minimum storage requirement. Thus, Slater's damages for breach of contract are limited to $300.

The district court correctly found that Slater had failed to allege the amount in controversy requirement of $50,000. 28 U.S.C. § 1332. Further, even if he had been granted an opportunity to amend, Slater's complaint could not have met the required amount. See Pachinger, 802 F.2d at 364. Thus, the district court correctly dismissed Slater's complaint for lack of subject matter jurisdiction.

AFFIRMED.