876 F. 2d 897 - McGhee v. City of Los Angeles Department of Water and Power

MEMORANDUM**

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.

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

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.

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.

"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).

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.

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).

DISMISSED.