Nhuong Van Nguyen v. Jackson Lucky;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NHUONG VAN NGUYEN,
Plaintiff-Appellant,
v.
JACKSON LUCKY; et al.,
Defendants-Appellees.
No. 18-56400
D.C. No. 5:18-cv-01452-JGB-KK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Nhuong Van Nguyen appeals pro se from the district court’s judgment
dismissing his action arising out of his prior state court divorce proceedings. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal under the Rooker-Feldman doctrine. Noel v. Hall, 341 F.3d 1148, 1154
* 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
AUG 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 18-56400
(9th Cir. 2003). We affirm.
The district court properly dismissed Nguyen’s action against defendant
Judge Lucky and the Riverside County Superior Court for lack of subject matter
jurisdiction under the Rooker-Feldman doctrine because Nguyen’s action is a
“forbidden de facto appeal.” Id. at 1163 (“It is a forbidden de facto appeal under
Rooker-Feldman when 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.”); see also Cooper v. Ramos, 704 F.3d 772, 782 (9th Cir. 2012) (“To
determine whether an action functions as a de facto appeal, [courts] pay close
attention to the relief sought by the federal-court plaintiff.” (citation and internal
quotation marks omitted)).
Contrary to Nguyen’s contention that he has alleged “fraud upon the court,”
the district court properly concluded that Nguyen did not allege facts sufficient to
show that an adverse party committed an extrinsic fraud on the state court. See
Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140-41 (9th Cir. 2004) (defining
extrinsic fraud, and recognizing that the Rooker-Feldman doctrine does not apply
if extrinsic fraud prevented a party from presenting his or her claim in state court).
The district court did not abuse its discretion in dismissing defendant Miller
because Nguyen voluntarily moved to dismiss Miller under Federal Rule of Civil
Procedure 41(a)(2). See Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143,

-- 2 of 3 --

3 18-56400
145 (9th Cir. 1982) (setting forth standard of review); see also Fed. R. Civ. P.
41(a)(2) (explaining that an “action may be dismissed at the plaintiff’s request . . .
by court order, on terms that the court considers proper”).
Nguyen’s contention that Federal Rule Civil Procedure 60(d)(3) provides
federal subject matter jurisdiction over this action is unpersuasive.
Nguyen’s motion to vacate the judgment (Docket Entry No. 3) is denied.
AFFIRMED.

-- 3 of 3 --