United States Court of Appeals, Ninth CircuitJul 16, 2007
243 Fed. Appx. 268 (9th Cir. 2007)

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No. 06-55524.

Submitted June 4, 2007.

This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed July 16, 2007.

Maunaloa T. Avery, Los Angeles, CA, pro se.

Herbert B. Avery, M.D., Los Angeles, CA, pro se.

James L. Crandall, Genson, Even, Crandall Wade, Eric T. Lamhofer, Esq., Wolfe Wyman, LLP, Irvine, CA, Chris D. Greinke, Esq., Douglas M. McGrave, Esq., Poliquin DeGrave, Laguna Hills, CA, for Defendants-Appellees.

Appeal from the United States District Court for the Central District of California, R. Gary Klausner, District Judge, Presiding. D.C. No. CV-05-04609-RGK.

Before: FARRIS, BOOCHEVER, and LEAVY, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Dr. Herbert B. Avery and his wife Maunaloa T. Avery (the Averys) appeal pro se the district court's judgment dismissing the Averys' action for lack of jurisdiction over the subject matter, pursuant to Federal Rule of Civil Procedure 12(b)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

The district court properly found that the Averys failed to allege federal jurisdiction based upon diversity of citizenship because plaintiffs and several defendants are citizens of California. See 28 U.S.C. § 1332(a); Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (holding that 28 U.S.C. § 1332(a) applies only when the state citizenship of each plaintiff is diverse from the citizenship of each defendant).

The district court also properly found no federal question jurisdiction because the Averys' action, which alleged breach of contract, breach of fiduciary duties, bad faith, unfair and deceptive practices, fraud on the court, malice, and failure to defend, does not arise "under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Nor does the district court have jurisdiction under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, because that statute does not provide the district courts with an independent basis for federal question jurisdiction. Nationwide Mut. Ins. Co. v. Liberators, 408 F.3d 1158, 1161-62 (9th Cir. 2005).