NOT FOR PUBLICATION FILED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
KIRK M. CARMICHAEL, No. 16-56525
Plaintiff-Appellant, D.C. No. 3:15-cv-01064-JAH-DHB
v.
MEMORANDUM*
JPMORGAN CHASE BANK, N.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Kirk M. Carmichael appeals pro se from the district court’s order denying
Carmichael’s motion to alter the judgment dismissing for failure to state a claim
his action alleging violations of the Truth in Lending Act. We have jurisdiction
under 28 U.S.C. § 1291. We have an independent duty to determine whether the
*
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).
district court had subject matter jurisdiction. Wash. Envtl. Council v. Bellon, 732
F.3d 1131, 1139 (9th Cir. 2013). We may affirm on any basis supported by the
record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir.
2008). We affirm.
Dismissal of Carmichael’s action was proper because the district court
lacked subject matter jurisdiction, as Carmichael failed to exhaust the
administrative claim process under the Financial Institutions Reform, Recovery,
and Enforcement Act (“FIRREA”). See 12 U.S.C. § 1821(d)(3)-(10) (setting forth
the FIRREA administrative claim process); Rundgren v. Wash. Mut. Bank, FA, 760
F.3d 1056, 1060 (9th Cir. 2014) (12 U.S.C. § 1821(d)(13)(D) strips courts of
jurisdiction over claims that have not been administratively exhausted under
FIRREA); Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207, 1209 (9th Cir.
2012) (holding that “a claim asserted against a purchasing bank based on the
conduct of a failed bank must be exhausted under FIRREA”). We treat the
judgment as a dismissal without prejudice. See Kelly v. Fleetwood Enters., Inc.,
377 F.3d 1034, 1036 (9th Cir. 2004) (dismissal for lack of subject matter
jurisdiction should be without prejudice).
Because the district court lacked subject matter jurisdiction over the action,
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we do not consider Carmichael’s contention that the district court abused its
discretion by denying Carmichael’s motion to alter the judgment.
AFFIRMED.
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