NHUONG NGUYEN V. JACKSON LUCKY, No. 18-56400 (9th Cir. 2019)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 26 2019 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT NHUONG VAN NGUYEN, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 18-56400 D.C. No. 5:18-cv-01452-JGB-KK v. MEMORANDUM* JACKSON LUCKY; et al., Defendants-Appellees. Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding Submitted August 19, 2019** Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges. Nhuong Van Nguyen appeals pro se from the district court’s judgment dismissing his action arising out of his prior state court divorce proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s dismissal under the Rooker-Feldman doctrine. Noel v. Hall, 341 F.3d 1148, 1154 * 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). (9th Cir. 2003). We affirm. The district court properly dismissed Nguyen’s action against defendant Judge Lucky and the Riverside County Superior Court for lack of subject matter jurisdiction under the Rooker-Feldman doctrine because Nguyen’s action is a “forbidden de facto appeal.” Id. at 1163 (“It is a forbidden de facto appeal under Rooker-Feldman when the plaintiff in federal district court complains of a legal wrong allegedly committed by the state court, and seeks relief from the judgment of that court.”); see also Cooper v. Ramos, 704 F.3d 772, 782 (9th Cir. 2012) (“To determine whether an action functions as a de facto appeal, [courts] pay close attention to the relief sought by the federal-court plaintiff.” (citation and internal quotation marks omitted)). Contrary to Nguyen’s contention that he has alleged “fraud upon the court,” the district court properly concluded that Nguyen did not allege facts sufficient to show that an adverse party committed an extrinsic fraud on the state court. See Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140-41 (9th Cir. 2004) (defining extrinsic fraud, and recognizing that the Rooker-Feldman doctrine does not apply if extrinsic fraud prevented a party from presenting his or her claim in state court). The district court did not abuse its discretion in dismissing defendant Miller because Nguyen voluntarily moved to dismiss Miller under Federal Rule of Civil Procedure 41(a)(2). See Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 2 18-56400 145 (9th Cir. 1982) (setting forth standard of review); see also Fed. R. Civ. P. 41(a)(2) (explaining that an “action may be dismissed at the plaintiff’s request . . . by court order, on terms that the court considers proper”). Nguyen’s contention that Federal Rule Civil Procedure 60(d)(3) provides federal subject matter jurisdiction over this action is unpersuasive. Nguyen’s motion to vacate the judgment (Docket Entry No. 3) is denied. AFFIRMED. 3 18-56400