John Berman v. John Doe

FILED
NOT FOR PUBLICATION MAR 20 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN BERMAN, No. 13-35739

Plaintiff - Appellant, D.C. No. 1:13-cv-00958-PA

v.
MEMORANDUM*
JOHN DOE; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding

Submitted March 10, 2015**

Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.

John Berman appeals pro se from the district court’s judgment dismissing

his action alleging state law claims arising from the burglary of a rental property.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a determination

of subject matter jurisdiction. Kuntz v. Lamar Corp., 385 F.3d 1177, 1191 n.6 (9th

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cir. 2004). We review for an abuse of discretion a dismissal without leave to

amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). We vacate

and remand.

Although the district court properly dismissed Berman’s action for failure to

allege facts sufficient to show complete diversity between the parties, see Molnar

v. Nat’l Broad. Co., 231 F.2d 684, 687 (9th Cir. 1956) (“in the absence of []

identification or connection or name, [] the allegation of citizenship ... is illusory”),

the district court abused its discretion by dismissing without giving Berman an

opportunity to amend. See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.

2007) (“Dismissal of a pro se complaint without leave to amend is proper only if it

is absolutely clear that the deficiencies of the complaint could not be cured by

amendment.” (citation and internal quotation marks omitted)); see also 28 U.S.C.

§ 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the

trial or appellate courts.”). Accordingly, we vacate the judgment and remand to the

district court with instructions to provide Berman with an opportunity to file an

amended complaint.

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

2 13-35739