Paul Christiansen v. Lincoln National Life Ins. Co.

MEMORANDUM

Paul Merritt Christiansen appeals pro se from the district court’s order dismissing his action for lack of prosecution and lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo a dismissal for lack of subject matter jurisdiction. Crum v. Circus Circus Enters., 231 F.3d 1129 , 1130 (9th Cir.2000). We review for an abuse of discretion a dismissal for lack of prosecution. Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir.1998). We vacate and remand.

Dismissal for lack of prosecution was improper because Christiansen timely responded to and attempted to comply with the orders to show cause why the action should not be dismissed. See id. at 401 (reversing dismissal for lack of prosecution where plaintiffs promptly complied with order to show cause).

We vacate the judgment and remand for further proceedings because ap-pellee concedes diversity jurisdiction, and it is not clear that Christiansen could not plead facts establishing diversity jurisdiction if given another opportunity to amend the complaint. See Snell v. Cleveland, Inc., 316 F.3d 822 , 828 & n. 6 (9th Cir. 2002) (per curiam) (noting that dismissal without…