                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 20 2012

                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS



                            FOR THE NINTH CIRCUIT



REBECCA M. CANNON,                               No. 12-35012

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00083-LRS

       v.
                                                 MEMORANDUM *
SPOKANE MERCHANTS
ASSOCIATION, a Washington
corporation,

              Defendant - Appellee.

                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                     Argued and Submitted November 7, 2012
                              Seattle, Washington

Before: W. FLETCHER and FISHER, Circuit Judges, and QUIST, District Judge.**

      Appellant Rebecca M. Cannon appeals the district court’s judgment

dismissing her complaint for lack of subject matter jurisdiction on the basis of the

Rooker-Feldman doctrine. We vacate and remand.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
        The Honorable Gordon J. Quist, Senior United States District Judge for
the Western District of Michigan, sitting by designation.
       1.     The district court erred in concluding that the Rooker-Feldman

doctrine applies to this case. Cannon is not a state-court loser complaining of

injuries caused by an allegedly erroneous state court judgment, nor does she seek

relief from the state court judgment. See Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 284 (2005). Because she “asserts as a legal wrong an

allegedly illegal act or omission by an adverse party, Rooker-Feldman does not bar

jurisdiction.” Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003). That the subject

matter of the federal action may be “intertwined” with the subject matter of the

state court action does not require dismissal under Rooker-Feldman, because

Cannon does not seek to bring a de facto appeal of a state court judgment. Id. at

1158 (“Only when there is already a forbidden de facto appeal in federal court does

the ‘inextricably intertwined’ test come into play . . . .”).

       2.     Because the district court clearly “reaffirm[ed] its dismissal of

plaintiff’s claim on Rooker-Feldman grounds,” which is jurisdictional, we construe

the court’s order to not reach the issue of res judicata, which is an affirmative

defense that goes to the merits of Cannon’s claims. See Exxon Mobil, 544 U.S. at

293. The applicability of this defense involves issues of state law that were not

analyzed by the district court in its order denying reconsideration. Additionally,

resolution of this issue requires further development and explication of the factual



                                            2
basis for Cannon’s claims than was presented to this court. We therefore decline to

reach the applicability of res judicata and leave it to the district court to determine

in the first instance should Spokane raise the issue on remand. See Kougasian v.

TMSL, Inc., 359 F.3d 1136, 1143-44 (9th Cir. 2004) (discussing examples of state

preclusion law and remanding for the district court to determine in the first

instance after reversing the district court’s dismissal on Rooker-Feldman grounds).

      VACATED AND REMANDED.




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