NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 29 2024

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DANIEL BOUDETTE, No. 22-36003 Plaintiff-Appellant, D.C. No. 6:22-cv-00071-BMM-KLD v.

MEMORANDUM*

TAMMY OSKERSON; ADAM OWENS;

GREGORY G. COSTANZA; GRANITE

PEAK LAW, PLLC,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Brian M. Morris, Chief District Judge, Presiding

Submitted March 29, 2024**

Before: BENNETT, BADE, and COLLINS, Circuit Judges.

Plaintiff Daniel Boudette appeals from the district court’s order dismissing

this case for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

and, alternatively, for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). The district court held that Boudette’s sole federal claim—a claim

against his ex-wife and her Montana attorneys under the Racketeer Influenced and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). Corrupt Organizations Act (“RICO”)—was so insubstantial on its face that it failed

even to invoke the court’s federal jurisdiction. See Bell v. Hood, 327 U.S. 678,

682–83 (1946). Reviewing de novo, Tiedemann v. von Blanckensee, 72 F.4th

1001, 1006–07 (9th Cir. 2023), we agree that the district court lacked jurisdiction,

but we rest that conclusion on the alternative ground that jurisdiction here is barred

under the Rooker-Feldman doctrine, see Ranza v. Nike, Inc., 793 F.3d 1059, 1076

(9th Cir. 2015) (stating that we may affirm the district court “on any ground raised

below and fairly supported by the record”).

A suit in federal court constitutes a forbidden de facto appeal of a state court

judgment under the Rooker-Feldman doctrine if “the plaintiff in federal district

court complains of a legal wrong allegedly committed by the state court, and seeks

relief from the judgment of that court.” Noel v. Hall, 341 F.3d 1148, 1163 (9th

Cir. 2003). The doctrine also extends to claims that are “inextricably intertwined

with a forbidden appeal,” meaning that “the relief requested” in those claims

“would effectively reverse the state court decision or void its ruling.” Cooper v.

Ramos, 704 F.3d 772, 778–79 (9th Cir. 2012) (citations omitted). Under those

standards, this case is clearly barred by Rooker-Feldman. All of Boudette’s

alleged injuries flow from a series of state court judgments that have been entered

against him in protracted litigation with his ex-wife over certain property in

Montana and the liens she has asserted against it. This is a paradigmatic case in

2 which a “state-court loser[] complain[s] of injuries caused by state-court judgments

rendered before the district court proceedings commenced and inviting district

court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 284 (2005) (holding that Rooker-Feldman is confined

to such cases).

Boudette provides two arguments for holding that Rooker-Feldman is

inapplicable here, but neither is persuasive.

First, Boudette argues that, because parallel state court litigation was still

ongoing at the time that he filed this federal action, he “could not have been

attempting to appeal that decision when it had not yet been rendered,” thereby

making Rooker-Feldman inapplicable. But Boudette’s then-pending motion in

Montana state trial court was itself a collateral attack on earlier state court

judgments that were rendered before this federal action was filed, and it is those

judgments that give rise to the bar of Rooker-Feldman. Indeed, on the same day

that the federal district court denied Boudette’s motion for a temporary restraining

order, the Montana state trial court denied Boudette’s motion on the grounds that it

was barred by those prior decisions. Boudette does not cite any authority, nor are

we aware of any, that would support the proposition that a litigant can avoid

Rooker-Feldman by the simple expedient of pursuing a concurrent collateral attack

on a judgment in state court at the same time it pursues a forbidden de facto appeal

3 of that judgment in federal court.

Second, Boudette relies on cases recognizing an extrinsic fraud exception to

the Rooker-Feldman doctrine. But this exception is inapplicable here, because

Boudette failed to allege facts showing that Defendants’ alleged perjury, false

evidence, and flawed legal arguments prevented him from presenting his claims in

state court. See Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140–41 (9th Cir. 2004)

(stating that the Rooker-Feldman doctrine does not apply when a plaintiff “alleges

a cause of action for extrinsic fraud on a state court” and defining extrinsic fraud as

“conduct which prevents a party from presenting his claim in court” (citation

omitted)). And because there is no basis to conclude that Boudette could replead

his claims to avoid the Rooker-Feldman jurisdictional bar, there is no prejudicial

error in the district court’s refusal to grant leave to amend. See Cervantes v.

Countrywide Home Loans, 656 F.3d 1034, 1041 (9th Cir. 2011) (district court may

deny leave to amend if amendment would be futile).

Because, however, a dismissal under the Rooker-Feldman doctrine is for

lack of jurisdiction, see Kougasian, 359 F.3d at 1139, it should be “without

prejudice,” Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir.

1999) (citation omitted). Accordingly, we remand for the district court to amend

the judgment to dismiss this suit without prejudice.

AFFIRMED and REMANDED.

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