940 F2d 668 Hintze v. Pershing Direct Brokerage Services Vnb

940 F.2d 668

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Barry J. HINTZE, Plaintiff-Appellant,
v.
PERSHING DIRECT BROKERAGE SERVICES, VNB Investment Services,
Inc., a subsidiary of the Valley National Bank of
Arizona, Defendants-Appellees.

No. 89-15491.

United States Court of Appeals, Ninth Circuit.

Submitted July 23, 1991.*
Decided July 25, 1991.

Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.


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1

MEMORANDUM**

2

Barry J. Hintze appeals pro se the district court's dismissal of his action to recover money allegedly wrongfully withdrawn from his account. The district court found that it lacked subject-matter jurisdiction and denied Hintze's motion to amend his complaint. The district court also imposed sanctions against Hintze under Fed.R.Civ.P. 11. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

3

* Subject Matter Jurisdiction

4

The existence of subject-matter jurisdiction is a question of law which we review de novo. Allah v. Superior Court of State of Cal., 871 F.2d 887, 890 (9th Cir.1989).

A. Diversity Jurisdiction

5

In order for the district court to have diversity jurisdiction over a claim, the plaintiff and each of the defendants must be citizens of different states. Munoz v. Small Business Admin., 644 F.2d 1361, 1365 (9th Cir.1981). A corporation is a citizen of the state where it is incorporated and where it has its principal place of business. Id. An individual is a citizen of the state in which he or she is domiciled. Id.

6

Here, Hintze's complaint fails to allege any basis for the district court's jurisdiction. Because Hintze and the defendant, VNB Investment Services ("VNB"), are both citizens of Arizona, complete diversity of citizenship is lacking, and the district court is without jurisdiction on that basis.

B. Federal Question Jurisdiction

7

Federal question jurisdiction exists when an action arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. Sec. 1331; Caterpillar Tractor, Co. v. Williams, 482 U.S. 386, 392 (1987). A court determines a federal question by looking to the face of the plaintiff's well-pleaded complaint. Caterpillar, 482 U.S. at 392.


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8

Hintze's complaint labelled "Notice of Proposed Settlement of Class Action Suit" fails to assert a claim arising under the Constitution, laws or treaties of the United States. Hintze apparently attempted to assert jurisdiction under 28 U.S.C. Sec. 1348 in a subsequent pleading entitled "Reply in Support of Motion to Amended Bill of Complaint." Under 28 U.S.C. Sec. 1348, district courts have jurisdiction over civil actions brought by the United States against any national banking association. Hintze is not an officer of the United States nor is the defendant, VNB, a national banking association. Accordingly, section 1348 cannot serve as a basis for jurisdiction.

9

In his opening brief to this court, Hintze alleges violations of sections 10b-5 and 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78j as a basis for the district court's jurisdiction. Because this allegation was never presented to the district court, we decline to consider it for the first time on appeal. See Jones v. Aero/Chem Corp., 921 F.2d 875, 877 n. 1 (9th Cir.1990).

II

Motion for Leave to Amend

10

We review for abuse of discretion the district court's denial of leave to amend a pleading after a responsive pleading has been filed. Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir.1991).

11

Hintze contends that the district court erred by denying his motion to amend his complaint. The district court denied the motion on the ground that any amendment would be futile because an amended complaint would remain subject to a meritorious motion to dismiss.

12

The district court may decline to grant leave to amend where there is "any apparent or declared reason" for doing so including futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Lockman, 930 F.2d at 772.

13

In view of the vague allegations contained in Hintze's complaint and subsequent pleadings, we find that the district court did not abuse its discretion by denying Hintze's motion for leave to amend. See Lockman, 930 F.2d at 772.1

14

AFFIRMED.

*

The panel unaminously finds this case suitable for decision 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

1

The district court awarded VNB attorney's fees of $250.00 in the form of sanctions under Fed.R.Civ.P. 11. Hintze lists these sanctions in the notice of appeal to this court, but fails to raise the issue of sanctions in his opening brief. Accordingly he has waived this issue on appeal. See Wilcox v. Commissioner, 848 F.2d 1007, 1008 n. 2 (9th Cir.1988)