Hung M. Nguyen v. Cache Creek Casino Resort

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUNG M. NGUYEN,
Plaintiff-Appellant,
v.
CACHE CREEK CASINO RESORT,
Defendant-Appellee.
No. 21-15351
D.C. No. 2:20-cv-01748-TLN-KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Hung M. Nguyen appeals pro se from the district court’s judgment
dismissing his action for lack of subject matter jurisdiction. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Cook v. AVI Casino Enters., Inc.,
548 F.3d 718, 722 (9th Cir. 2008). We affirm.
* 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).
FILED
JAN 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-15351
The district court properly dismissed Nguyen’s action because Nguyen
failed to satisfy his burden of establishing that tribal sovereign immunity did not
bar his action. See Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (“In the
context of a Rule 12(b)(1) motion to dismiss on the basis of tribal sovereign
immunity, the party asserting subject matter jurisdiction has the burden of proving
its existence, i.e. that immunity does not bar the suit.” (citation and internal
quotation marks omitted)). Furthermore, Nguyen did not pursue the remedies
available to him.
We reject as without merit Nguyen’s contentions that the district court was
biased and prejudiced against him.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Nguyen’s motion for judicial notice is denied as unnecessary.
AFFIRMED.

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