NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 23 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FELICIA TUITAMA; LILOI TUITAMA, No. 17-56312

Plaintiffs-Appellants, D.C. No. 2:17-cv-03084-MWF-JPR

v.

MEMORANDUM*

U.S. BANK, N.A., as Trustee for Lehman XS Trust Mortgage Pass-through Certificates, Series 2005-5N; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted March 13, 2018**

Before: LEAVY, SILVERMAN, and M. SMITH, Circuit Judges.

Felicia Tuitama and Liloi Tuitama appeal pro se from the district court’s

order dismissing their diversity action alleging state law claims arising from

foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We

* 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). review de novo the existence of subject matter jurisdiction. Attorneys Tr. v.

Videotape Comput. Prods., Inc., 93 F.3d 593, 594 (9th Cir. 1996). We vacate and

remand.

The district court dismissed the Tuitamas’ first amended complaint based on

res judicata and failure to state a claim. However, the district court did not address

the Tuitamas’ allegations that the district court lacked subject matter jurisdiction

based on the citizenship of defendants named in the first amended complaint. See

Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) (“Courts have an independent

obligation to determine whether subject-matter jurisdiction exists, even when no

party challenges it.”). We vacate and remand for the district court to address

whether it had subject matter jurisdiction, and in doing so express no opinion as to

whether any defendants were fraudulently joined after removal from state court.

See Weeping Hollow Ave. Tr. v. Spencer, 831 F.3d 1110, 1113 (9th Cir. 2016) (the

citizenship of a fraudulently joined, non-diverse defendant is not considered for

purposes of determining diversity).

VACATED and REMANDED.

2 17-56312