BRISTOL v. HUGHES 28 2015 (2020)

MEMORANDUM **

Elizabeth Joan Hughes appeals from the district court’s judgment dismissing for lack of diversity jurisdiction her counterclaims in Gabriel M. Bristol’s action alleging contract claims. 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 vacate and remand.

The district court properly dismissed Hughes’s counterclaims on the basis of Hughes’s insufficient allegations to establish complete diversity between the parties. However, it is not clear on review that the defective allegations of jurisdiction in Hughes’s countercomplaint could not have been cured by amendment. See 28 U.S.C. § 1653 (permitting amendment of defective allegations of jurisdiction); Snell v. Cleveland, Inc., 316 F.3d 822, 828 n.6 (9th Cir. 2002) (“Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by amendment.” (citation omitted)).

Accordingly, we vacate the judgment as to Hughes’s counterclaims, and remand for the district court to provide Hughes with an opportunity to amend her countercomplaint.

VACATED AND REMANDED.