Culliford v. Queen

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GRAHAM GEORGE CULLIFORD, 
Plaintiff-Appellant,
v.  No. 02-1698
GLEN QUEEN,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CA-01-221-2-T)
Submitted: October 17, 2002
Decided: November 6, 2002
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Graham George Culliford, Appellant Pro Se. Fred Henry Moody, Jr.,
MCKEEVER, EDWARDS, DAVIS & HAYS, P.A., Bryson City,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 CULLIFORD v. QUEEN
OPINION
PER CURIAM:
Graham George Culliford appeals the district court’s order dismiss-
ing his slander of title action without prejudice under Fed. R. Civ. P.
12(b)(6). We vacate the district court’s order and remand for further
proceedings.
Generally, a dismissal without prejudice is not an appealable order.
See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d
1064, 1066-67 (4th Cir. 1993). However, because no amendment of
Culliford’s complaint would permit his action to proceed, we find the
order of dismissal appealable. Id.The district court dismissed Culliford’s complaint for lack of diver-
sity jurisdiction. The court found that Culliford is an alien admitted
to the United States as a permanent resident. It accordingly concluded
that Culliford is a citizen of North Carolina for diversity purposes. We
have reviewed the record and find inadequate support for the district
court’s finding that Culliford is a permanent resident of the United
States. See 28 U.S.C. § 1332(a); Foy v. Schantz, Schatzman & Aaron-
son, P.A., 108 F.3d 1347, 1349 (11th Cir. 1997). We therefore vacate
the district court’s order and remand for reconsideration of whether
diversity jurisdiction exists.*
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
*We express no opinion as to whether diversity jurisdiction is present
or, if so, whether the district court may decline to exercise jurisdiction
on abstention grounds.