Felicia Tuitama v. U.S. Bank, N.A.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELICIA TUITAMA; LILOI TUITAMA, No. 17-56312
Plaintiffs-Appellants, D.C. No. 2:17-cv-03084-MWF-JPR
v.
MEMORANDUM*
U.S. BANK, N.A., as Trustee for Lehman
XS Trust Mortgage Pass-through
Certificates, Series 2005-5N; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, SILVERMAN, and M. SMITH, Circuit Judges.
Felicia Tuitama and Liloi Tuitama appeal pro se from the district court’s
order dismissing their diversity action alleging state law claims arising from
foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo the existence of subject matter jurisdiction. Attorneys Tr. v.
Videotape Comput. Prods., Inc., 93 F.3d 593, 594 (9th Cir. 1996). We vacate and
remand.
The district court dismissed the Tuitamas’ first amended complaint based on
res judicata and failure to state a claim. However, the district court did not address
the Tuitamas’ allegations that the district court lacked subject matter jurisdiction
based on the citizenship of defendants named in the first amended complaint. See
Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (“Courts have an independent
obligation to determine whether subject-matter jurisdiction exists, even when no
party challenges it.”). We vacate and remand for the district court to address
whether it had subject matter jurisdiction, and in doing so express no opinion as to
whether any defendants were fraudulently joined after removal from state court.
See Weeping Hollow Ave. Tr. v. Spencer, 831 F.3d 1110, 1113 (9th Cir. 2016) (the
citizenship of a fraudulently joined, non-diverse defendant is not considered for
purposes of determining diversity).
VACATED and REMANDED.
2 17-56312