                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                                FILED
                            FOR THE NINTH CIRCUIT                                 MAY 18 2012

                                                                           MOLLY C. DWYER, CLERK
                                                                                U.S. COURT OF APPEALS

RAVINDRA K. PATEL; et al.,                       No. 10-57060

              Plaintiffs - Appellants,           D.C. No. 2:10-cv-05818-GHK-
                                                 FMO
  v.

KISHOR PATEL; et al.,                            MEMORANDUM*

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                        Argued and Submitted May 7, 2012
                              Pasadena, California

Before: NOONAN and FISHER, Circuit Judges, and MUELLER, District Judge.**


       Ravindra K. Patel and Yogi Krupa, Inc. appeal the district court’s dismissal

with prejudice for lack of subject matter jurisdiction of their first amended



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kimberly J. Mueller, District Judge for the U.S.
District Court for Eastern California, sitting by designation.
complaint alleging one claim, for violation of the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. Having conducted a de novo

review, we hold that the district court’s decision was not clearly erroneous. Kruso

v. Int’l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989); Griggs v. Pace Am.

Group, Inc., 170 F.3d 877, 879 (9th Cir. 1999). Accordingly, we affirm.

      The district court applied the substantiality doctrine in finding that it lacked

subject matter jurisdiction. “Under the substantiality doctrine, the district court

lacks subject matter jurisdiction when the question presented is too insubstantial to

consider.” Cook v. Peter Kiewit Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985)

(citing Hagans v. Lavine, 415 U.S. 528, 536-39 (1974)). “The claim must be ‘so

insubstantial, implausible, foreclosed by prior decisions of this Court or otherwise

completely devoid of merit as not to involve a federal controversy within the

jurisdiction of the District Court, whatever may be the ultimate resolution of the

federal issue on the merits.’” Id. (quoting Oneida Indian Nation v. County of

Oneida, 414 U.S. 661, 666 (1974)).

      Appellants’ allegation that defendants-appellees Kishor and Gita Patel

engaged in a pattern of racketeering activity by dealing in obscene matter is devoid

of merit under both 18 U.S.C. §§ 1961(1)(A) and (B). We have not considered

appellants’ Federal Rule of Appellate Procedure 28(j) letter filed on May 4, 2012


                                           2
because it raises new arguments, which we consider waived for purposes of this

appeal. Confederated Tribes v. Bonneville Power Admin., 342 F.3d 924, 933 (9th

Cir. 2003); Medina-Morales v. Ashcroft, 362 F.3d 1263, 1269 n.6 (9th Cir. 2004).

This decision does not foreclose appellants from bringing their new theory in a

new case. Cook, 775 F.2d at 1035. Appellees’ request for judicial notice is denied

as moot. (Doc. No. 21.)

      AFFIRMED.




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