                                                                             FILED
                             NOT FOR PUBLICATION                              OCT 06 2010

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




                             FOR THE NINTH CIRCUIT



WADE ROBERTSON,                                   No. 09-15355

               Plaintiff - Appellant,             D.C. No. 5:06-cv-04624-JF

  v.
                                                  MEMORANDUM *
SHIRAZ QADRI; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeremy D. Fogel, District Judge, Presiding

                           Submitted September 13, 2010 **

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

       Wade Robertson appeals pro se from the district court’s judgment in his

action alleging false imprisonment and false arrest, and from the order denying his

motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo the district court’s dismissal for lack of diversity jurisdiction, and

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review for clear error its factual determinations. Kroske v. U.S. Bank Corp., 432

F.3d 976, 979 (9th Cir. 2005). We review for an abuse of discretion the denial of

leave to amend, Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th

Cir. 2009), and the denial of a motion for reconsideration, Sch. Dist. No. 1J,

Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We

affirm.

      The district court did not clearly err by finding that Robertson failed to

establish that he was domiciled in a state different from defendants, and thus

properly dismissed for lack of diversity jurisdiction. See Lew v. Moss, 797 F.2d

747, 750 (9th Cir. 1986) (listing factors for courts to consider in determining

domicile, and reviewing for clear error district court’s determination of domicile);

see also Kanter v. Warner-Lambert Co., 265 F.3d 853, 857-58 (9th Cir. 2001)

(“the party asserting diversity jurisdiction bears the burden of proof”).

      The district court did not abuse its discretion by denying Robertson leave to

amend to allege a claim under 42 U.S.C. § 1983 because amendment would have

been futile. See Ahlmeyer, 555 F.3d at 1055 (“futility of amendment alone can

justify the denial of a motion [to amend]”); Guerrero v. Gates, 442 F.3d 697, 703-

05 (9th Cir. 2006) (concluding that section 1983 claims were barred by Heck v.

Humphrey, 512 U.S. 477 (1994), even though plaintiff was no longer in custody,


                                           2                                       09-15355
because success on the claims would necessarily imply the invalidity of plaintiff’s

convictions). Robertson’s res judicata argument is unpersuasive.

      The district court also did not abuse its discretion by denying Robertson’s

motion for reconsideration. See Sch. Dist. No. 1J, 5 F.3d at 1263.

      Robertson’s request for judicial notice is granted, and his request for a stay

is denied.

      AFFIRMED.




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