Rebecca M. CANNON, Plaintiff-Appellant, v. SPOKANE MERCHANTS ASSOCIATION, a Washington corporation, Defendant-Appellee, 502 F. App'x 683

MEMORANDUM 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. 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, 125 S.Ct. 1517, 161 L.Ed.2d 454 (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-Feld-man, 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 plaintiffs 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, 125 S.Ct. 1517. 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 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 Roolter-Feldman grounds). VACATED AND REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.