FILED
NOT FOR PUBLICATION FEB 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT BURKART, individually; No. 12-35886
TANJA M BURKART, individually and
the marital community thereof,
D.C. No. 2:11-cv-01921-RAJ
Plaintiffs - Appellants,
v. MEMORANDUM*
GLOBAL ADVISORY GROUP, INC., a
Washington corporation,
Defendant,
And
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
Delaware corporation; BAC HOME
LOANS SERVICING, LP, a foreign
corporation; BANK OF AMERICA NA, a
national bank; BANK OF AMERICA
CORPORATION, a Delaware corporation;
COUNTRYWIDE FINANCIAL
CORPORATION, a Delaware corporation;
COUNTRYWIDE HOME LOANS, INC.,
a New York corporation; LINDA GREEN
DOES 1-10,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted February 7, 2014**
Seattle, Washington
Before: GOULD and CHRISTEN, Circuit Judges, and KOBAYASHI, District
Judge.***
Plaintiffs Herbert and Tanja Burkart contest language in the district court’s
order dismissing their complaint with leave to amend. The district court dismissed
Plaintiffs’ complaint because it did not meet the pleading standard of Federal Rule
of Civil Procedure 8(a). In its order, the district court gave guidance on how to
replead Plaintiffs’ claims so as to comply with Rule 8(a). This guidance included a
direction that Plaintiffs “must consider” an unpublished Washington Court of
Appeals decision1 as part of repleading their Washington Consumer Protection Act
claim. Instead of amending their complaint, Plaintiffs appealed. The district court
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Leslie E. Kobayashi, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
1
Peterson v. Citibank, N.A., 170 Wash. App. 1035, at *3 (2012) (discussing
Bain v. Metro. Mortg. Grp., Inc., 285 P.3d 34 (Wash. 2012) (en banc)).
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then dismissed the case without prejudice for failure to prosecute under Federal
Rule of Civil Procedure 41(b).
Plaintiffs challenge the district court’s power to direct Plaintiffs to consider
an unpublished state court decision when amending their complaint. However, a
dismissal with leave to amend is not an appealable final order under 28 U.S.C. §
1291. Greensprings Baptist Christian Fellowship Trust v. Cilley, 629 F.3d 1064,
1068 (9th Cir. 2010); WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136-37
(9th Cir. 1997) (en banc). Nor does the specific guidance within the district court’s
order satisfy the stringent requirements of an appealable collateral order. See
Greensprings, 629 F.3d at 1066-67. The district court’s repleading guidance is not
effectively unreviewable because any subsequent determination by the district
court on the applicability of the unpublished Washington Court of Appeals case to
Plaintiffs’ CPA claim would be reviewable once the district court rendered a final
judgment. See DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1014 (9th Cir.
2013). The unpublished case, moreover, pointed Plaintiffs in the direction of the
Washington State Supreme Court decision that it cited.
The district court’s later dismissal without prejudice of Plaintiffs’ case under
Rule 41(b) does not give us jurisdiction to hear a premature appeal. See Serine v.
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Peterson, 989 F.2d 371, 373 (9th Cir. 1993). Accordingly, we dismiss this appeal
for lack of jurisdiction.
DISMISSED.
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