NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DILLARD JAMES McNELEY, No. 19-55432

Plaintiff-Appellant, D.C. No. 2:18-cv-08766-MWF-

MAA

v.

SHEPPARD, MULLIN, RICHTER AND MEMORANDUM*

HAMPTON LLP; et al.,

Defendants-Appellees.

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

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Dillard James McNeley appeals pro se from the district court’s judgment

dismissing his employment action alleging due process and fraud claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of

subject matter jurisdiction under the Rooker–Feldman doctrine. Kougasian v.

* 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). TMSL, Inc., 359 F.3d 1136, 1139 (9th Cir. 2004). We affirm, and remand with

instructions.

The district court properly dismissed McNeley’s claims, other than the claim

under the California Bane Act, for lack of subject matter jurisdiction under the

Rooker-Feldman doctrine because these claims amounted to a forbidden “de facto

appeal” of two prior state court judgments. Noel v. Hall, 341 F.3d 1148, 1163-65

(9th Cir. 2003) (discussing Rooker–Feldman doctrine); see also Henrichs v. Valley

View Dev., 474 F.3d 609, 616 (9th Cir. 2007) (explaining Rooker–Feldman

doctrine barred plaintiff’s claim because alleged legal injuries arose from the “state

court’s purportedly erroneous judgment” and the relief he sought “would require

the district court to determine that the state court’s decision was wrong and thus

void”).

Contrary to McNeley’s contention that his fraud-based claim fell within the

extrinsic fraud exception to the Rooker–Feldman doctrine, the district court

properly concluded that the Rooker–Feldman doctrine barred review of his fraud-

based claim because it was already litigated in one of his prior state court actions.

See Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 860 (9th Cir. 2008) (holding

that the Rooker–Feldman doctrine barred review of a claim of extrinsic fraud

because that claim “was itself separately litigated before and rejected by” the state

court (emphasis omitted)).

2 19-55432 The district court did not abuse its discretion in denying McNeley’s motions

for reconsideration because McNeley failed to establish any basis for such relief.

See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63

(9th Cir. 1993) (setting forth standard of review and grounds for reconsideration

under Fed. R. Civ. P. 59(e) and 60(b)).

A dismissal under the Rooker–Feldman doctrine is a dismissal for lack of

subject matter jurisdiction, see Kougasian, 359 F.3d at 1139, and thus should be

without prejudice, see Kelly v. Fleetwood Enterprises, Inc., 377 F.3d 1034, 1036

(9th Cir. 2004). Additionally, dismissals based on declining to exercise

supplemental jurisdiction should be without prejudice. See Gini v. Las Vegas

Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994). Accordingly, we remand

with instructions to enter judgment without prejudice.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED; REMANDED with instructions to enter judgment

without prejudice.

3 19-55432