Charles G. Kinney v. Three Arch Bay Community Services District;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES G. KINNEY,
Plaintiff-Appellant,
v.
THREE ARCH BAY COMMUNITY
SERVICES DISTRICT; et al.,
Defendants-Appellees.
No. 17-55899
D.C. No. 8:16-cv-00796-RGK-JC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Charles G. Kinney appeals pro se from the district court’s judgment
dismissing his action alleging violations of the Clean Water Act (“CWA”), 33
U.S.C. § 1365. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
* 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). Kinney’s request for oral
argument, set forth in the opening brief, is denied.
FILED
MAY 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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a dismissal for lack of subject matter jurisdiction due to insufficient notice under
the CWA. Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1353 (9th Cir.
1995). We affirm.
The district court properly determined that it lacked subject matter
jurisdiction over Kinney’s action because Kinney failed to provide defendants with
adequate notice of the alleged CWA violations. See 40 C.F.R. § 135.3 (notice
under CWA must provide sufficient information to permit recipient to identify
violation); Washington Trout, 45 F.3d at 1354-55 (affirming dismissal of CWA
action for lack of subject matter jurisdiction where notice was “insufficient as
required by the regulations promulgated under the CWA”); see also Stock West,
Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th
Cir. 1989) (stating that the Declaratory Judgment Act “only creates a remedy and
is not an independent basis for jurisdiction”).
The district court did not abuse its discretion by dismissing Kinney’s claims
against defendant Three Arch Bay Community Services District (“TAB”) because
Kinney failed to effectuate timely service of the summons and complaint on TAB
or to show good cause for this failure. See Fed. R. Civ. P. 4(m) (requiring service
within 90 days after the complaint is filed); In re Sheehan, 253 F.3d 507, 511-13
(9th Cir. 2001) (setting forth standard of review and discussing district court’s
broad discretion to dismiss the action without prejudice). For this same reason, the

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district court did not abuse its discretion by denying Kinney’s motion for entry of
default against TAB. See Fed. R. Civ. P. 55(a) (entry of default); Aldabe v.
Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980) (setting forth standard of review).
The district court did not abuse its discretion by dismissing the complaint
without leave to amend because amendment would be futile. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
standard of review and explaining that dismissal without leave to amend is proper
when amendment would be futile).
We reject Kinney’s contention that the district court erred by assigning this
case to Judge Klausner in the Western Division of the U.S. District Court for the
Central District of California.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
The Chaldus’ motion to take judicial notice (Docket Entry No. 14) is
granted.
AFFIRMED.

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