OpenJurist

101 F3d 705 Avechuco v. City of La Mesa

101 F.3d 705

Kathy AVECHUCO, Plaintiff-Appellant,
v.
CITY OF LA MESA; La Mesa Police Department; Walter
Mitchell; City of La Mesa Chief of Police; John
Carrigan; Officer, individually and as
an employee of City of La
Mesa, Defendants-Appellees.

No. 95-56017.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 1996.
Decided Nov. 14, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Before: FERNANDEZ and HAWKINS, Circuit Judges, and SCHWARZER, District Judge.*

2

MEMORANDUM**

3

Kathy Avechuco appeals from the dismissal of her action under 42 U.S.C. § 1983 and various state law theories. We dismiss for lack of jurisdiction.

4

This action was filed against John Carrigan, who was Avechuco's former boyfriend, and who was also a police officer. He stalked and harassed her after they broke up. The action was also filed against Carrigan's employer, the City of La Mesa, and against the City's Police Chief, Walter Mitchell. The district court dismissed the action against the City and the Police Chief. It did not dismiss the case as to Carrigan, against whom a default had been entered by the clerk, nor did it enter judgment against him, nor did it make the determinations which would allow an appeal of the dismissal alone. See Fed.R.Civ.P. 54(b).

5

When judgment is entered against some of the defendants in a case but not against others, we lack jurisdiction unless the district court has certified the limited judgment for appeal. See Cotter v. Desert Palace, Inc., 880 F.2d 1142, 1144 (9th Cir.1989); Ackerman-Chillingsworth, Div. of Marsh & McLennan, Inc. v. Pacific Elec. Contractors Ass'n, 579 F.2d 484, 489 (9th Cir.1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 872, 59 L.Ed.2d 56 (1979); see also Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir.1981). Thus, because the case still remains open as it relates to Carrigan, we lack appellate jurisdiction.

6

DISMISSED. The mandate shall issue immediately upon the filing of this disposition. The parties shall bear their own costs on appeal.

*

The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3