Gherini v. Lagomarsino

MEMORANDUM * Francis Denby Gherini appeals the district court’s dismissal of his action pursuant to Fed.R.Civ.P. 12(b)(6). We affirm. The district court dismissed Gherini’s action with prejudice on the ground that it lacked subject matter jurisdiction due to the “probate exception” to federal jurisdiction. Following the Supreme Court’s subsequent decision in Marshall v. Marshall, 547 U.S. 293 , 126 S.Ct. 1735 , 164 L.Ed.2d 480 (2006), however, that ground is no longer valid. Gherini’s first amended complaint asserts RICO and tort claims and seeks an in personam damages judgment against the defendants themselves; it does not seek to administer an estate, probate a will, or otherwise assume in rem jurisdiction over property in the custody of a state probate court. Therefore, the probate exception does not deprive the district court of subject matter jurisdiction over Gherini’s claims. See Marshall, 547 U.S. at 311-12 , 126 S.Ct. 1735 . Nevertheless, we may affirm the district court’s grant of a motion to dismiss on any ground supported by the record. Beeman v. TDI Managed Care Servs., Inc., 449 F.3d 1035 , 1038 (9th Cir.2006). We hold that the district court lacks jurisdiction over Gherini’s RICO claim for two reasons. First, Gherini does not have standing to bring his RICO challenge. Because he never had a property interest in the Gherini Ranch, Gherini was not *84 “injured in his business or property by reason of a [RICO] violation.” 18 U.S.C. § 1964 (c) (emphasis added). Second, because Gherini alleged no injury to his own business or property, his RICO claim is insubstantial. See Markham v. United States, 434 F.3d 1185, 1188 (9th Cir.2006). Because the district court lacks subject matter jurisdiction over Gherini’s federal claim, it has no discretion to exercise supplemental jurisdiction over Gherini’s remaining state-law claims. See Skysign Int’l, Inc. v. City and County of Honolulu, 276 F.3d 1109 , 1118 n. 7 (9th Cir.2002) (“[H]ad Skysign lacked standing to bring its federal claim, the district court would have lacked subject matter jurisdiction over that claim and accordingly would have had no discretion to hear the state law claims.”); Brady v. Brown, 51 F.3d 810, 816 (9th Cir.1995) (noting that supplemental jurisdiction exists only “when the federal claim is sufficiently substantial to confer federal jurisdiction,” and that an insubstantial federal claim “divest[s] the court of [supplemental] jurisdiction”); see also 28 U.S.C. § 1367 (c)(3) (giving district courts discretion to decline to exercise supplemental jurisdiction where “the district court has dismissed all claims over which it has original jurisdiction ”) (emphasis added). Accordingly, the district court’s dismissal of Gherini’s action is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.