62 F3d 1423 Benoza v. Target Personnel Services

62 F.3d 1423

Cora BENOZA, Plaintiff-Appellant,

No. 95-15047.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 2, 1995.*
Decided Aug. 7, 1995.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: ALARCON, FERNANDEZ, and RYMER, Circuit Judges.




Cora B. Benoza appeals pro se the district court's sua sponte dismissal of her complaint for lack of subject matter jurisdiction pursuant to 28 U.S.C. Sec. 1915(d). The district court's dismissal was without prejudice. We dismiss the appeal for lack of jurisdiction.


A dismissal without prejudice is usually not a final appealable order. McGuckin v. Smith, 974 F.2d 1050, 1053 (9th Cir. 1992). "Ordinarily, an order dismissing a complaint but not the underlying action is not a final order and is, therefore, not appealable under 28 U.S.C. Sec. 1291 (1976). We may regard such an order as final and appealable only if the record shows 'special circumstances,' such that it is 'clear' that the court below found that 'the action could not be saved by any amendment of the complaint' ...." State of Cal. v. Harvier, 700 F.2d 1217, 1218 (9th Cir.), cert. denied, 464 U.S. 820 (1983) (citations omitted).


Here, the district court dismissed Benoza's complaint because it did not contain sufficient facts to give rise to federal jurisdiction. Prior to dismissal, the district court informed Benoza of the deficiencies of her complaint and explained that she would have an opportunity to refile her complaint to allege sufficient facts to support federal jurisdiction. Benoza has not yet filed an amended complaint.


Because the district court intended to permit Benoza the opportunity to refile her complaint, the district court's order dismissing Benoza's complaint can not be considered a final order. See McGuckin, 974 F.2d at 1053. Accordingly, we dismiss the appeal for lack of appellate jurisdiction.




The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4


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