FILED
NOT FOR PUBLICATION DEC 20 2012
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
REBECCA M. CANNON, No. 12-35012
Plaintiff - Appellant, D.C. No. 2:11-cv-00083-LRS
v.
MEMORANDUM *
SPOKANE MERCHANTS
ASSOCIATION, a Washington
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted November 7, 2012
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, District Judge.**
Appellant Rebecca M. Cannon appeals the district court’s judgment
dismissing her complaint for lack of subject matter jurisdiction on the basis of the
Rooker-Feldman doctrine. We vacate and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior United States District Judge for
the Western District of Michigan, sitting by designation.
1. The district court erred in concluding that the Rooker-Feldman
doctrine applies to this case. Cannon is not a state-court loser complaining of
injuries caused by an allegedly erroneous state court judgment, nor does she seek
relief from the state court judgment. See Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005). Because she “asserts as a legal wrong an
allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar
jurisdiction.” Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). That the subject
matter of the federal action may be “intertwined” with the subject matter of the
state court action does not require dismissal under Rooker-Feldman, because
Cannon does not seek to bring a de facto appeal of a state court judgment. Id. at
1158 (“Only when there is already a forbidden de facto appeal in federal court does
the ‘inextricably intertwined’ test come into play . . . .”).
2. Because the district court clearly “reaffirm[ed] its dismissal of
plaintiff’s claim on Rooker-Feldman grounds,” which is jurisdictional, we construe
the court’s order to not reach the issue of res judicata, which is an affirmative
defense that goes to the merits of Cannon’s claims. See Exxon Mobil, 544 U.S. at
293. The applicability of this defense involves issues of state law that were not
analyzed by the district court in its order denying reconsideration. Additionally,
resolution of this issue requires further development and explication of the factual
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basis for Cannon’s claims than was presented to this court. We therefore decline to
reach the applicability of res judicata and leave it to the district court to determine
in the first instance should Spokane raise the issue on remand. See Kougasian v.
TMSL, Inc., 359 F.3d 1136, 1143-44 (9th Cir. 2004) (discussing examples of state
preclusion law and remanding for the district court to determine in the first
instance after reversing the district court’s dismissal on Rooker-Feldman grounds).
VACATED AND REMANDED.
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