FILED
NOT FOR PUBLICATION MAR 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TED ERUM, JR., Nos. 08-16027
08-16634
Plaintiff - Appellant, 08-16666
v. D.C. No. 1:08-CV-00113-SOM-BMK
COUNTY OF KAUAI; et al., MEMORANDUM *
Defendants - Appellees.
Appeals from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Ted Erum, Jr., appeals pro se from the order dismissing his action seeking to
prevent defendants from cutting monkeypod trees on land intended for commercial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
EN/Research
development. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
district court’s dismissal for lack of subject matter jurisdiction. Alvarado v. Table
Mt. Rancheria, 509 F.3d 1008, 1015 (9th Cir. 2007). We affirm.
The district court properly dismissed Erum’s action because evidence in the
record, including Erum’s statements and past behavior, demonstrated that his
attempt to amend his complaint to state constitutional violations was solely for the
purpose of obtaining federal question subject matter jurisdiction after failing to
obtain diversity jurisdiction and his constitutional claim was frivolous and not
colorable. See Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006).
The district court properly dismissed Erum’s action without leave to amend
because amendment of the complaint would be futile. See Orsay v. U.S. Dep’t of
Justice, 289 F.3d 1125, 1136 (9th Cir. 2002); see also Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 831 (1989) (“Section 1653 speaks of amending
‘allegations of jurisdiction,’ which suggests that it addresses only incorrect
statements about jurisdiction that actually exists, and not defects in the
jurisdictional facts themselves.”) (alteration in original).
The district court did not abuse its discretion when it granted only in part
defendants’ motion for sanctions. See Chambers v. Nasco, Inc., 501 U.S. 32, 44
EN/Research 2 08-16027
(1991); Leon v. IDX Systems Corp., 464 F.3d 951, 961 (9th Cir. 2006).
AFFIRMED.
EN/Research 3 08-16027