NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA BROOKE, a married woman No. 16-56489
dealing with her sole and separate claim,
D.C. No. 8:16-cv-00438-DOC-
Plaintiff-Appellant, DFM
v.
MEMORANDUM*
THE IRVINE COMPANY, a Delaware
Limited Liability Company doing business
as The Resort at Pelican Hill,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Theresa Brooke appeals from the district court’s judgment dismissing for
lack of standing her action alleging violations of the Americans with Disabilities
Act (“ADA”). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part,
*
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).
vacate in part, and remand.
In her opening brief, Brooke does not challenge the district court’s dismissal
of her ADA claim for lack of standing or declination of supplemental jurisdiction
over her state law claims, and therefore Brooke waived any such challenge. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments not raised by a
party in its opening brief are deemed waived.”). However, Brooke’s claims should
have been dismissed without prejudice. See Missouri ex rel. Koster v. Harris, 847
F.3d 646, 656 (9th Cir. 2017). (dismissal for lack of subject matter jurisdiction
should be without prejudice); Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d
1041, 1046 (9th Cir. 1994) (dismissal based on declining supplemental jurisdiction
over state law claims should be without prejudice). We vacate the judgment to the
extent it dismisses Brooke’s complaint with prejudice and remand for the sole
purpose of entering judgment without prejudice.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
2 16-56489