Jody Chambers v. John Knight ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JODY F. CHAMBERS, No. 20-56141
Plaintiff-Appellant, D.C. No. 3:18-cv-02906-BAS-BGS
v.
MEMORANDUM*
JOHN A. KNIGHT, individually,
Defendant-Appellee,
and
COLIN LUCAS-MUDD, individually;
AITEKZ PLC,
Defendants.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Jody F. Chambers appeals pro se from the district court’s judgment
*
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).
dismissing her action alleging state law claims. We have jurisdiction under
28 U.S.C. § 1291. We review de novo a dismissal for lack of subject matter
jurisdiction. Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d 1082, 1086 (9th
Cir. 2014). We affirm.
The district court properly dismissed Chambers’s action for lack of subject
matter jurisdiction because Chambers failed to satisfy her burden of establishing
diversity of citizenship. See 28 U.S.C. § 1332(a) (requirements for diversity
jurisdiction); Lew v. Moss, 797 F.2d 747, 749-50 (9th Cir. 1986) (for diversity of
citizenship, “a person is domiciled in a location where he or she has established a
fixed habitation or abode in a particular place, and [intends] to remain there
permanently or indefinitely”; setting forth factors for determining an individual’s
domicile (alteration in original, citation and internal quotation marks omitted)); id.
at 750 (because the factors for determining domicile are essentially factual, the
district court’s determination of domicile is reviewed for clear error); see also
NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 613-14 (9th Cir. 2016) (“The party
seeking to invoke the district court’s diversity jurisdiction always bears the burden
of both pleading and proving diversity jurisdiction.”).
The district court properly granted defendant Knight’s motion for relief from
the default judgment under Federal Rule of Civil Procedure 60(b)(4) on the ground
that the default judgment was void for lack of subject matter jurisdiction. See Fed.
2 20-56141
R. Civ. P. 60(c)(1) (Rule 60(b)(4) motion “must be made within a reasonable
time”); Fid. Nat’l Fin., Inc. v. Friedman, 803 F.3d 999, 1001 (9th Cir. 2015)
(standard of review); Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 876 (9th Cir.
2005) (a judgment is void for purposes of Rule 60(b)(4) if the district court lacked
subject matter jurisdiction); see also NewGen, 840 F.3d at 614 (a defendant may
bring a factual attack to subject matter jurisdiction in the context of a Rule 60(b)(4)
motion for relief from a default judgment).
We reject as without merit Chambers’s contention that Knight’s Rule
60(b)(4) motion was a collateral attack on the judgment, barred by res judicata.
See Watts v. Pinckney, 752 F.2d 406, 410 (9th Cir. 1985) (Rule 60(b)(4) attack on
a judgment is direct, not collateral, and res judicata therefore does not apply).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 20-56141