Dillard McNeley v. Sheppard Mullin

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DILLARD JAMES McNELEY, No. 19-55432
Plaintiff-Appellant, D.C. No. 2:18-cv-08766-MWF-
MAA
v.
SHEPPARD, MULLIN, RICHTER AND MEMORANDUM*
HAMPTON LLP; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted February 4, 2020**
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
Dillard James McNeley appeals pro se from the district court’s judgment
dismissing his employment action alleging due process and fraud claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of
subject matter jurisdiction under the Rooker–Feldman doctrine. Kougasian v.
*
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).
TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004). We affirm, and remand with
instructions.
The district court properly dismissed McNeley’s claims, other than the claim
under the California Bane Act, for lack of subject matter jurisdiction under the
Rooker-Feldman doctrine because these claims amounted to a forbidden “de facto
appeal” of two prior state court judgments. Noel v. Hall, 341 F.3d 1148, 1163-65
(9th Cir. 2003) (discussing Rooker–Feldman doctrine); see also Henrichs v. Valley
View Dev., 474 F.3d 609, 616 (9th Cir. 2007) (explaining Rooker–Feldman
doctrine barred plaintiff’s claim because alleged legal injuries arose from the “state
court’s purportedly erroneous judgment” and the relief he sought “would require
the district court to determine that the state court’s decision was wrong and thus
void”).
Contrary to McNeley’s contention that his fraud-based claim fell within the
extrinsic fraud exception to the Rooker–Feldman doctrine, the district court
properly concluded that the Rooker–Feldman doctrine barred review of his fraud-
based claim because it was already litigated in one of his prior state court actions.
See Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 860 (9th Cir. 2008) (holding
that the Rooker–Feldman doctrine barred review of a claim of extrinsic fraud
because that claim “was itself separately litigated before and rejected by” the state
court (emphasis omitted)).
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The district court did not abuse its discretion in denying McNeley’s motions
for reconsideration because McNeley failed to establish any basis for such relief.
See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63
(9th Cir. 1993) (setting forth standard of review and grounds for reconsideration
under Fed. R. Civ. P. 59(e) and 60(b)).
A dismissal under the Rooker–Feldman doctrine is a dismissal for lack of
subject matter jurisdiction, see Kougasian, 359 F.3d at 1139, and thus should be
without prejudice, see Kelly v. Fleetwood Enterprises, Inc., 377 F.3d 1034, 1036
(9th Cir. 2004). Additionally, dismissals based on declining to exercise
supplemental jurisdiction should be without prejudice. See Gini v. Las Vegas
Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994). Accordingly, we remand
with instructions to enter judgment without prejudice.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED; REMANDED with instructions to enter judgment
without prejudice.
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