NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 21 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY MALKAN; SUSAN MALKAN, No. 21-15067

Plaintiffs-Appellants, D.C. No. 4:20-cv-00060-JGZ

v.

MEMORANDUM*

OMNI HOTELS MANAGEMENT

CORPORATION,

Defendant-Appellee.

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 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).”

2 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.

3 21-15067