OpenJurist

919 F2d 144 Donnelly v. Herb Simon Associates Inc

919 F.2d 144

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Mary DONNELLY, heir of Pearl Little Estate, Mary Goldstein,
her power of attorney, Plaintiffs-Appellants,
v.
HERB SIMON ASSOCIATES, INC., Adam Neisner, beneficiary,
Chicago Title Insurance Company, Defendants-Appellees,
and
Estate of Pearl Little, deceased, Defendant-Intervenor.

No. 89-35268.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.*
Decided Nov. 29, 1990.

Before WALLACE, DAVID R. THOMPSON, and TROTT, Circuit Judges.

1

MEMORANDUM**

2

Mary Donnelly and her "power of attorney," Mary Goldstein, ("Donnelly") appeal the district court's dismissal of their action and denial of their motion for a preliminary injunction against Herb Simon Associates, Inc., Adam Neisner, and Chicago Title Insurance Company for lack of subject-matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review de novo, see Elias v. Connett, 908 F.2d 521, 523 (9th Cir.1990); Dweck v. Japan CBM Corp., 877 F.2d 790, 792 (9th Cir.1989), and affirm.

3

* Merits

4

In the complaint, Donnelly, an heir to the estate of Pearl Little, alleged collusion and concealment by the defendants in the buying and selling of the primary asset of the Little estate, real property located on San Juan Island in Washington state. The district court, however, found the complaint failed to state a claim upon which relief could be granted. The district court granted Donnelly 30 days to file an amended complaint. The Estate of Pearl Little moved to intervene and to dismiss the case either for lack of subject-matter jurisdiction or for failure to state a claim. Donnelly then filed a motion for a preliminary injunction to stop the sale of the property contending it contained federally protected Indian burial grounds. The district court dismissed Donnelly's complaint with prejudice and denied their motion for a preliminary injunction, concluding the court was without subject-matter jurisdiction and that Donnelly had "provide[d] no evidence that the land in question has federal protection, nor that any federal law prevents its sale."

5

On appeal, Donnelly reiterates the same claims offered to the district court. We hold Donnelly has failed to carry her burden to establish the existence of subject-matter jurisdiction. Accordingly, the district court did not err in dismissing their action and denying their motion for a preliminary injunction. See Dweck, 877 F.2d at 792.

II

Appellate Sanctions

6

The appellees request sanctions against Donnelly for bringing this appeal. This court has discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed.R.App.P. 38; 28 U.S.C. Sec. 1912; Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir.1988) ($1,500 sanction imposed on pro se litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Wilcox, 848 F.2d at 1009 (citation omitted).

7

Donnelly's appeal is wholly without merit. In exercise of our discretion, however, we decline to impose sanctions on this appeal. Donnelly is advised, however, that frivolous litigation can subject her to substantial sanctions.

8

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3