                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 4 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

THERESA BROOKE, a married woman                 No. 16-56489
dealing with her sole and separate claim,
                                                D.C. No. 8:16-cv-00438-DOC-
                Plaintiff-Appellant,            DFM

 v.
                                                MEMORANDUM*
THE IRVINE COMPANY, a Delaware
Limited Liability Company doing business
as The Resort at Pelican Hill,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      Theresa Brooke appeals from the district court’s judgment dismissing for

lack of standing her action alleging violations of the Americans with Disabilities

Act (“ADA”). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part,


      *
             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).
vacate in part, and remand.

      In her opening brief, Brooke does not challenge the district court’s dismissal

of her ADA claim for lack of standing or declination of supplemental jurisdiction

over her state law claims, and therefore Brooke waived any such challenge. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments not raised by a

party in its opening brief are deemed waived.”). However, Brooke’s claims should

have been dismissed without prejudice. See Missouri ex rel. Koster v. Harris, 847

F.3d 646, 656 (9th Cir. 2017). (dismissal for lack of subject matter jurisdiction

should be without prejudice); Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d

1041, 1046 (9th Cir. 1994) (dismissal based on declining supplemental jurisdiction

over state law claims should be without prejudice). We vacate the judgment to the

extent it dismisses Brooke’s complaint with prejudice and remand for the sole

purpose of entering judgment without prejudice.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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