OpenJurist

917 F2d 566 Bacon v. Municipal Court of California

917 F.2d 566

Unpublished Disposition

Richard BACON, Plaintiff-Appellant,
v.
MUNICIPAL COURT OF CALIFORNIA, Mount Diablo Judicial
District, Contra Costa District Attorney, and
Department of Motor Vehicles,
Defendants-Appellees.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

No. 89-15581.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1990.*
Decided Oct. 26, 1990.

Before HUG, NELSON and LEAVY, Circuit Judges.

1

MEMORANDUM**

2

Richard Bacon appeals the district court's orders (1) quashing return of service of summons and dismissing his pleading against Municipal Court of California, Mount Diablo Judicial District and Contra Costa District Attorney ("Court and District Attorney") under Fed.R.Civ.P. 12(b)(5) and 8(a) and (e)(1), and (2) dismissing California Department of Motor Vehicles ("DMV") from this action with prejudice under Fed.R.Civ.P. 12(b)(6). We dismiss this appeal for lack of appellate jurisdiction.

3

We raise sua sponte the issue of our jurisdiction to hear this appeal. See Abernathy v. Southern California Edison, 885 F.2d 525, 527 (9th Cir.1989). Pursuant to 28 U.S.C. Sec. 1291, this court has jurisdiction over appeals from final orders of the district court. Ordinarily, an order dismissing a complaint rather than dismissing the action is not appealable under section 1291 unless it is clear that the court concluded the action could not be saved by amendment, or if it appears that the court intended the dismissal to dispose of the entire action. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984). Here, the district court expressly dismissed Bacon's pleading, not his underlying action. The court gave no indication that it did not believe the pleading could be saved by amendment, or that it intended to dispose of the entire action. Therefore, the court's order dismissing Bacon's pleading pursuant to Rule 8(a) and (e)(1) is not a final order reviewable in this court. See Gerritsen, 819 F.2d at 1514.

4

Furthermore, an order quashing service of process is also not a final order in the sense of terminating the action below, and thus is not normally reviewable in this court. Stevens v. Security Pac. Nat'l. Bank, 538 F.2d 1387, 1388 (9th Cir.1976). Because defendants were all still amenable to process, the order quashing return of service of summons did not terminate the action, and there was no final appealable order entered as to defendants Court and District Attorney.

5

Finally, the dismissal of one party where the action is not terminated as to other parties does not constitute a final appealable order. See Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548, 554 (9th Cir.1986); Anderson v. Allstate Ins. Co., 630 F.2d 677, 680 (9th Cir.1980).1 In this case, the district court did not issue a final order as to defendants Court and District Attorney; thus, the action has not been terminated as to those parties. Accordingly, the order dismissing the DMV from the action with prejudice is not appealable. Therefore, the entire appeal must be dismissed for lack of jurisdiction.

DISMISSED.2

*

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

1

Without district court certification pursuant to Fed.R.Civ.P. 54(b), this court lacks jurisdiction to hear an appeal from an order dismissing only one party in a multiple party action. See Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985). Here, certification was not granted, and Bacon never moved to certify the order dismissing the DMV pursuant to Rule 54(b)

2

On June 27, 1990, this court issued an order to show cause why the appeal should not be dismissed for failure to prosecute and why a $250 sanction should not be imposed against Bacon's counsel for failure to abide by the court's rules pursuant to Fed.R.App.P. 46(c). Bacon responded by filing a cause to avoid dismissal, but failed to show why the sanction was unwarranted. Accordingly, the sanction is affirmed