OpenJurist

876 F2d 897 McGhee v. City of Los Angeles Department of Water and Power

876 F.2d 897

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Carol A. McGHEE, Plaintiff-Appellant,
v.
CITY OF LOS ANGELES DEPARTMENT OF WATER AND POWER and Los
Angeles Department of Water and Power Employees
Credit Union, Defendants-Appellees.

No. 88-5932.

United States Court of Appeals, Ninth Circuit.

Submitted* April 26, 1989.
Decided June 6, 1989.

Before PREGERSON, O'SCANNLAIN and TROTT, Circuit Judges.

1

MEMORANDUM**

2

Carol McGhee ("McGhee") filed a racial discrimination, harassment, and theft complaint against her former employer, the Los Angeles Department of Water and Power ("DWP"), the City of Los Angeles, and the Los Angeles Department of Water and Power Employees Credit Union ("Credit Union"). The Credit Union filed a motion to dismiss based upon a lack of subject matter jurisdiction and for failure to state a claim. Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The City of Los Angeles and DWP filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), contending that the action was barred by the statute of limitations and that McGhee failed to exhaust her administrative remedies.

3

The district court granted DWP's motions to dismiss the complaint, but was silent as to whether it was with or without prejudice. The district court construed McGhee's failure to file an opposition to be a consent to the granting of defendants' motions pursuant to Local Rule 7.9.1

4

McGhee then filed various motions2 which the district court took off calendar until she "complie[d] with the Local Rules."3 McGhee then moved for entry of default judgment and later, filed an opposition to defendants' motion for dismissal.

5

Finally, the district court denied as moot McGhee's motion for entry of default judgment because "[n]o amended complaint was timely filed following the Court's order of dismissal ..., nor has plaintiff filed a motion for reconsideration of the Court's order of dismissal." McGhee appeals.

DISCUSSION

6

"Ordinarily an order dismissing the complaint rather than dismissing the action is not a final order and thus not appealable." Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987) (citations omitted). Such an order may be regarded 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 which the plaintiff could reasonably be expected to make....' " California v. Harvier, 700 F.2d 1217, 1218 (9th Cir.), cert. denied, 464 U.S. 820 (1983) (citations omitted).

7

Appellant has shown no such "special circumstances." When the district court dismissed the complaint, it clearly did not intend to dismiss the underlying action because (1) the motions filed by McGhee after the dismissal of her complaint were taken off calendar by the district court "until such time as [she] complies with the Local Rules"; and (2) the district court noted in its order denying McGhee's motion for entry of default that the "original complaint was never reinstated ... and no amended complaint has been filed to date." These entries reveal that the district court implicitly found that the complaint could be amended and therefore it did not intend to dismiss the underlying action. See Gerritsen, 819 F.2d at 1514; Harvier, 700 F.2d at 1218.

8

Furthermore, the denial of McGhee's motion for entry of default is not a final order; it is interlocutory, and therefore not appealable. See C. Wright, A. Miller, and E. Cooper, 15 Federal Practice and Procedure, Sec. 3914 at 585 (1976) and 234 (Supp.1988) (citing McNutt v. Cardox, 329 F.2d 107 (6th Cir.1964) and Alexander v. Pacific Maritime Ass'n, 332 F.2d 266, 268 (9th Cir.), cert. denied, 379 U.S. 882 (1964)). Cf. Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 512 (9th Cir.1986) (entry of default is not a final appealable order).

9

DISMISSED.

*

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a), Ninth Circuit Rule 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 Ninth Circuit Rule 36-3

1

Central District Local Rule 7.9 states that papers not timely filed by a party, which are required to be filed, will not be considered and "may be deemed by the Court consent to granting or denial of the motion." Central District Local Rule 7.9

2

McGhee filed a "Notice to continue motion to dismiss the complaint and notice of motion for court appointed attorney" and "Request to reconsider dismissal alias summons and complaint."

3

At this time, McGhee filed a notice of appeal to the Ninth Circuit which was subsequently voluntarily dismissed as premature. McGhee also filed a document entitled "Evidence: Possible or unknown(s) violation of Title 18, Section 2071(A) of the United States Code," in which she alleges that certain documents were removed and altered from the case file, including her "Alias Summons and Complaint."