                                                                             FILED
                                                                              DEC 14 2009
                             NOT FOR PUBLICATION
                                                                         MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

                      UNITED STATES COURT OF APPEALS

                             FOR THE NINTH CIRCUIT



 PAUL MERRITT CHRISTIANSEN,                       No. 08-56863

               Plaintiff - Appellant,             D.C. No. 2:08-cv-03948-PSG-JWJ

   v.
                                                  MEMORANDUM *
 LINCOLN NATIONAL LIFE
 INSURANCE CO.,

               Defendant - Appellee.



                     Appeal from the United States District Court
                         for the Central District of California
                     Philip S. Gutierrez, District Judge, Presiding

                           Submitted November 17, 2009 **


Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Paul Merritt Christiansen appeals pro se from the district court’s order



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

JS/Research
dismissing his action for lack of prosecution and lack of subject matter jurisdiction.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for

lack of subject matter jurisdiction. Crum v. Circus Circus Enters., 231 F.3d 1129,

1130 (9th Cir. 2000). We review for an abuse of discretion a dismissal for lack of

prosecution. Hernandez v. City of El Monte, 138 F.3d 393, 398 (9th Cir. 1998).

We vacate and remand.

        Dismissal for lack of prosecution was improper because Christiansen timely

responded to and attempted to comply with the orders to show cause why the

action should not be dismissed. See id. at 401 (reversing dismissal for lack of

prosecution where plaintiffs promptly complied with order to show cause).

        We vacate the judgment and remand for further proceedings because

appellee concedes diversity jurisdiction, and it is not clear that Christiansen could

not plead facts establishing diversity jurisdiction if given another opportunity to

amend the complaint. See Snell v. Cleveland, Inc., 316 F.3d 822, 828 & n.6

(9th Cir. 2002) (per curiam) (noting that dismissal without leave to amend is

improper unless it is clear that the complaint could not be saved by amendment,

and ordering the pleadings amended to correct defective jurisdictional allegations

where it was undisputed that complete diversity of citizenship existed).

        We deny Christiansen’s request to remand this case to a different judge


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because the record does not indicate that the case presents the rare circumstances

necessary to warrant reassignment. See Hernandez, 138 F.3d at 402–03.

        The parties shall bear their own costs on appeal.

        VACATED and REMANDED.




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