Jeffrey Malkan; Susan Malkan v. Omni Hotels Management Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY MALKAN; SUSAN MALKAN,
Plaintiffs-Appellants,
v.
OMNI HOTELS MANAGEMENT
CORPORATION,
Defendant-Appellee.
No. 21-15067
D.C. No. 4:20-cv-00060-JGZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted October 12, 2021**
Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.
Jeffrey Malkan and Susan Malkan appeal pro se from the district court’s
judgment dismissing their diversity1 action alleging tort claims under Arizona law.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1 The district court erred in finding that the amount in controversy
requirement for diversity jurisdiction was not met. See Naffe v. Frey, 789 F.3d
1030, 1040 (9th Cir. 2015) (in order to dismiss for lack of diversity jurisdiction, it
FILED
OCT 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-15067
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Colony
Cove Props., LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011). We
affirm.
The district court properly dismissed Jeffrey Malkan’s action because Mr.
Malkan failed to allege facts sufficient to state a plausible claim. See McMurtry v.
Weatherford Hotel, Inc., 293 P.3d 520, 528 (Ariz. Ct. App. 2013) (setting forth
elements of a negligence claim); Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 905 P.2d
559, 562-63 (Ariz. Ct. App. 1995) (setting forth elements of an intentional
infliction of emotional distress claim and explaining that plaintiff must show acts
“so outrageous in character and so extreme in degree, as to go beyond all possible
bounds of decency” (citations and internal quotation marks omitted)).
The district court did not abuse its discretion by dismissing Jeffrey Malkan’s
first amended complaint without leave to amend because amendment would have
been futile. See Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (setting forth
standard of review and factors for determining whether to grant leave to amend).
The district court abused its discretion in finding that the amount in
controversy requirement for diversity jurisdiction was not met. See Saint Paul
must be apparent to a legal certainty that plaintiffs cannot recover what they
claim).”

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3 21-15067
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) (requiring it to be
apparent to a legal certainty that plaintiffs cannot recover what they claim before
dismissal).
AFFIRMED.

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