GEORGE MUTASCU V. EMIL BOTEZATU, No. 18-55702 (9th Cir. 2019)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED MAY 30 2019 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT GEORGE MUTASCU, U.S. COURT OF APPEALS No. 18-55702 Plaintiff-Appellant, D.C. No. 2:15-cv-07066-DDP-AFM v. MEMORANDUM* EMIL BOTEZATU, Defendant-Appellee, and DOES, 1-10, Defendant. Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding Submitted May 21, 2019** Before: Judges. THOMAS, Chief Judge, and FRIEDLAND and BENNETT, Circuit George Mutascu appeals pro se from the district court’s judgment dismissing * 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). his diversity action alleging a state law claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015). We affirm. The district court properly dismissed Mutascu’s action for lack of subject matter jurisdiction because Mutascu failed to allege facts sufficient to show that there is complete diversity between the parties. See 28 U.S.C. § 1332(a); Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th Cir. 1983) (“Diversity jurisdiction does not encompass foreign plaintiffs suing foreign defendants.”). 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 affirm the dismissal, and instruct the district court to amend the judgment to reflect that the judgment is without prejudice. AFFIRMED with instructions to amend the judgment. 2 18-55702

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