MUTASCU v. 10 (2019)

MEMORANDUM **

George Mutascu appeals pro se from the district court’s judgment dismissing his diversity action alleging a state law claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015). We affirm.

The district court properly dismissed Mutascu’s action for lack of subject matter jurisdiction because Mutascu failed to allege facts sufficient to show that there is complete diversity between the parties. See 28 U.S.C. § 1332(a); Cheng v. Boeing Co., 708 F.2d 1406, 1412 (9th Cir. 1983) (“Diversity jurisdiction does not encompass foreign plaintiffs suing foreign defendants.”). However, a dismissal for lack of subject matter jurisdiction should be without prejudice. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004). We affirm the dismissal, and instruct the district court to amend the judgment to reflect that the judgment is without prejudice.

AFFIRMED with instructions to amend the judgment.