# Robert J. Wright v. Frank Gregg

> Court of Appeals for the Ninth Circuit · August 26, 1982 · 685 F.2d 340

URL: https://www.frixlaw.com/law-library/cases/9469555

## Case

- **Full name:** Robert J. WRIGHT, Plaintiff-Appellant, v. Frank GREGG, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** August 26, 1982
- **Citations:** 685 F.2d 340; 1982 U.S. App. LEXIS 16319
- **Precedential status:** Published
- **Opinion:** Dissent by Wallace
- **Judges:** Boochever, Browning, Per Curiam, Wallace
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469555

## Opinion text

WALLACE, Circuit Judge,
dissenting:
The majority reading of McClellan is fraught with potential dangers. I would restrict that ejectment case to its facts and not transfer its questionable quiet title action reasoning to this case.
The only issue then remaining would be whether it was an abuse of discretion to dismiss the action rather than dismiss the complaint and allow another effort at amendment. Ordinarily discretion is abused when the pleader’s affidavits or other evidence show either that the court actually has jurisdiction over the case or that the nonmoving party might be able to amend to allege jurisdiction. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350, at 552 (1969); Mountain Fuel Supply Co. v. Johnson, 586 F.2d 1375, 1382 (10th Cir. 1978), cert. denied, 441 U.S. 952 , 99 S.Ct. 2182 , 60 L.Ed.2d 1058 (1979); Hoefferle Truck Sales, Inc. v. Divco-Wayne Corp., 523 F.2d 543 (7th Cir. 1975). However, this general rule should not apply when the plaintiff fails to seek leave to amend and, as here, adamantly refuses to amend even up through the time of oral argument. Here the magistrate’s findings and recommendations clearly stated why jurisdiction was lacking:
... However, jurisdiction based upon 28 U.S.C. § 2409 (a) is appropriate only where the United States is a defendant. The United States is not named as a defendant in the case at bar.
In Wright’s objections to the magistrate’s findings and recommendations he raised no objection to that part of the report nor made any attempt to argue that the district court had jurisdiction. Compare Simons v. United States, 497 F.2d 1046 (9th Cir. 1974) (error for district court not to deem plaintiff’s complaint amended where plaintiff prayed in reply to government’s motion to dismiss that jurisdiction existed under Tucker Act and amendment would not have been futile).
Wright has never made a request to amend the pleadings to name the United States as a party. If we were to apply the general rule stated above to the present case, it would mean that the district judge must grant leave to amend on his own initiative, when leave to amend has never been sought by the plaintiff and when the complaint contains allegations which are insufficient to confer subject matter jurisdiction. Moreover, in this case the magistrate’s report specifically alerted the plaintiff to the reason why his second amended complaint failed to meet the jurisdictional requirements, thus giving him notice that an amendment could easily have cured the deficiency. With no request to name the United States and no objection to this part of the magistrate’s report, I would hold the district judge did not abuse his discretion in dismissing the action.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469555. Public record. Not legal advice.