Eli Mellor v. West Trop Storage, LLC ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELI MELLOR, No. 15-15624
Plaintiff-Appellant, D.C. No. 2:13-cv-01502-JCM-
VCF
v.
WEST TROP STORAGE, LLC, DBA MEMORANDUM*
Great American Storage Solutions,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Eli Mellor appeals pro se from the district court’s judgment dismissing for
lack of subject matter jurisdiction his diversity action arising from the sale of his
property after he failed to pay rent on his storage unit. We have jurisdiction under
*
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).
28 U.S.C. § 1291. We review de novo the district court’s dismissal for lack of
subject matter jurisdiction, Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015), and
for abuse of discretion the district court’s denial of leave to amend, AE v. County of
Tulare, 666 F.3d 631, 636 (9th Cir. 2012). We reverse and remand.
The district court properly dismissed Mellor’s action for lack of subject
matter jurisdiction because Mellor failed to allege facts sufficient to show that the
amount in controversy was satisfied. See 28 U.S.C. § 1332(a) (requirements for
diversity jurisdiction); Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d
362, 363-64 (9th Cir. 1986) (“The amount in controversy is normally determined
from the face of the pleadings. . . . It must appear to a legal certainty that the claim
is really for less than the jurisdictional amount to justify dismissal.” (citation and
internal quotation marks omitted)); see also Fifty-Six Hope Road Music, Ltd. v.
A.V.E.L.A., Inc., 778 F.3d 1059, 1083 (9th Cir. 2015) (“Punitive damages require a
showing by clear and convincing evidence that Defendants acted with oppression,
fraud or malice, express or implied.” (citing NRS § 42.005; emphasis and internal
quotation marks omitted)).
However, the district court abused its discretion in denying Mellor’s motion
for leave to amend because it is not clear that amendment would be futile. See AE,
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666 F.3d at 636 (setting forth the bases for denial of amendment); see also Lopez v.
Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (explaining that leave to amend
should be granted if it appears at all possible that a pro se plaintiff can correct the
defect in the pleading). Accordingly, we reverse the judgment and remand for
further proceedings consistent with this disposition. On remand, the district court
should make a specific finding that the parties are diverse. See Johnson v.
Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (holding that
an “LLC is a citizen of every state of which its owners/members are citizens”).
We do not consider arguments raised for the first time on appeal. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
REVERSED and REMANDED.
3 15-15624