                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 05 2010

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




                             FOR THE NINTH CIRCUIT



 TED ERUM, JR.,                                   Nos. 08-16027
                                                       08-16634
               Plaintiff - Appellant,                  08-16666

   v.                                             D.C. No. 1:08-CV-00113-SOM-BMK

 COUNTY OF KAUAI; et al.,                         MEMORANDUM *

               Defendants - Appellees.




                    Appeals from the United States District Court
                              for the District of Hawaii
                 Susan Oki Mollway, Chief District Judge, Presiding

                            Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Ted Erum, Jr., appeals pro se from the order dismissing his action seeking to

prevent defendants from cutting monkeypod trees on land intended for commercial

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

EN/Research
development. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

district court’s dismissal for lack of subject matter jurisdiction. Alvarado v. Table

Mt. Rancheria, 509 F.3d 1008, 1015 (9th Cir. 2007). We affirm.

       The district court properly dismissed Erum’s action because evidence in the

record, including Erum’s statements and past behavior, demonstrated that his

attempt to amend his complaint to state constitutional violations was solely for the

purpose of obtaining federal question subject matter jurisdiction after failing to

obtain diversity jurisdiction and his constitutional claim was frivolous and not

colorable. See Arbaugh v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006).

       The district court properly dismissed Erum’s action without leave to amend

because amendment of the complaint would be futile. See Orsay v. U.S. Dep’t of

Justice, 289 F.3d 1125, 1136 (9th Cir. 2002); see also Newman-Green, Inc. v.

Alfonzo-Larrain, 490 U.S. 826, 831 (1989) (“Section 1653 speaks of amending

‘allegations of jurisdiction,’ which suggests that it addresses only incorrect

statements about jurisdiction that actually exists, and not defects in the

jurisdictional facts themselves.”) (alteration in original).

       The district court did not abuse its discretion when it granted only in part

defendants’ motion for sanctions. See Chambers v. Nasco, Inc., 501 U.S. 32, 44




EN/Research                                 2                                    08-16027
(1991); Leon v. IDX Systems Corp., 464 F.3d 951, 961 (9th Cir. 2006).

       AFFIRMED.




EN/Research                             3                               08-16027
