67 F3d 310 Whitehorn v. Bodnar

67 F.3d 310

Jack R. WHITEHORN, Plaintiff-Appellant,
Billie Jean (Deleo) BODNAR, and Billie Jean Bodnar (DeLeo)
dba Magical Cherubs; Joseph Deleo, Jr.,; Bank of
America Nevada, Defendants-Appellees.

No. 94-15490.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 15, 1995.*
Decided Sept. 19, 1995.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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Before: KOZINSKI and HAWKINS, Circuit Judges, and SILVER,** District Judge.




The district court correctly dismissed this case for lack of diversity jurisdiction, as the complaint alleges that plaintiff Whitehorn and defendant Joseph DeLeo, Jr., each reside in Nevada. See Gould v. Mutual Life Ins. Co., 790 F.2d 769, 773 (9th Cir.), cert. denied, 479 U.S. 987 (1986). The court also did not abuse its discretion in denying Whitehorn's motion for leave to file supplemental pleadings, as he wasn't seeking leave to cure the complaint's flawed jurisdictional allegations.


It matters not at all whether Bodnar's motion to dismiss for lack of subject matter jurisdiction became moot when she filed bankruptcy a few months into the litigation; as the district court recognized, it was entitled to raise the question on its own. Finally, it's irrelevant whether Whitehorn would have been entitled to a default judgment against Bank of America if there had been subject matter jurisdiction here, because there was not.


Whitehorn's brief refers to his motion in this court to amend the pleadings or, in the alternative, to dismiss DeLeo as a defendant. A motions panel considered this motion and denied it; this is the law of the case, and we find no basis for reconsidering this ruling. The bank's motion to strike materials included in Whitehorn's Excerpts of Record that are not part of the record on appeal, referred to us by the motions panel, is denied as moot.


The bank's request for attorneys' fees and sanctions is denied.



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


The Honorable Roslyn O. Silver, United States District Judge, District of Arizona, sitting by designation


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