Vander Kley v. Acstar Insurance

MEMORANDUM **

Christopher Vander Kley appeals the district court’s dismissal of his diversity action against Acstar Insurance Company. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part, reverse in part and remand.

Vander Kley argues that the district court erroneously dismissed as unripe his claims arising out of Acstar’s settlement with OC America. In ruling on Acstar’s facial motion to dismiss for lack of subject matter jurisdiction, the district court appears to have looked beyond the allegations of the first amended complaint in deciding that the case was not ripe. The complaint alleged a present injury— namely, that Acstar damaged Vander Kley by having impeded Vander Kley’s pursuit of its legal remedies against OC America. On a facial motion to dismiss, the district court was required to assume the allegation to be true. Savage v. Glendale Union High Sch. Dist., 343 F.3d 1036 , 1039 n. 2 (9th Cir.2003). It remains to be seen, at the summary judgment stage or at trial, whether the allegation is substantiated by proof—e.g., whether Vander Kley actually pursued his legal remedies, was actually impeded by OC America, and actually sustained damages. However,…