FILED
UNITED STATES COURT OF APPEALS MAY 30 2014
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
LORENZO MENDOZA MARTINEZ; No. 12-16043
ELIEZER MENDOZA MARTINEZ;
ELIU MENDOZA; GLORIA MARTINEZ D.C. No. 3:11-cv-03194-WHA
MONTES, Northern District of California,
San Francisco
Plaintiffs - Appellants,
v. ORDER
AERO CARIBBEAN; EMPRESSA
AEROCARIBBEAN, S.A.; CUBANA DE
AVIACION, S.A.; ATR; GIE AVIONS
DE TRANSPORT REGIONAL,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted April 7, 2014
San Francisco, California
Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.
Plaintiffs appeal the district court’s dismissal of their claims against Avions
de Transport Régional (“ATR”) for lack of personal jurisdiction. Plaintiffs are the
heirs of Lorenzo Corazon Mendoza Cervantes, who was a passenger on an airplane
that crashed in Cuba, killing everyone aboard. ATR designed and manufactured
the airplane. At the time of the crash, the airplane allegedly was owned and
operated by Aero Caribbean, Empresa Aerocaribbean S.A., and Cubana de
Aviation S.A. (collectively “the Cuban defendants”), international airlines based in
Cuba. Plaintiffs sued ATR and the Cuban defendants in federal district court,
seeking damages for Cervantes’s death.
The district court granted ATR’s motion to dismiss and entered judgment for
ATR. That is the decision from which plaintiffs appeal. However, the district
court granted ATR’s motion to dismiss before plaintiffs had properly served the
Cuban defendants. The district court’s order entering judgment for ATR expressly
did not enter judgment with respect to the Cuban defendants. Therefore, at the
time plaintiffs filed their notice of appeal with this court, their claims against the
Cuban defendants remained pending before the district court. Plaintiffs have since
served the Cuban defendants and are pursuing their claims against those defendants
in the district court.
Under these circumstances, we conclude that plaintiffs’ notice of appeal was
premature because the district court’s order granting ATR’s motion to dismiss was
not an appealable final judgment. We order a limited remand for the district court
“to specify whether it intended that its dismissal order be treated as an appealable
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final judgment pursuant to Federal Rule of Civil Procedure 54(b).” Rollins v.
Mortg. Elec. Registration Sys., Inc., 737 F.3d 1250, 1251 (9th Cir. 2013).
Under 28 U.S.C. § 1291, we have jurisdiction over appeals from “final
judgment[s] that dispose[] of all claims with respect to all parties.” Dream Games
of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 987 (9th Cir. 2009). In Patchick v.
Kensington Publishing Corp., 743 F.2d 675 (9th Cir. 1984), we recognized an
exception to that rule where “an action is dismissed as to all of the defendants who
have been served and only unserved defendants remain.” Id. at 677. In such a
case, “the district court’s order may be considered final.” Id. However, we have
since qualified the Patchick rule, holding that it does not apply “where no final
judgment is entered and it is clear from the course of proceedings that further
adjudication is contemplated.” Disabled Rights Action Comm. v. Las Vegas
Events, Inc., 375 F.3d 861, 872 (9th Cir. 2004) (emphasis omitted). Although the
district court here entered final judgment with respect to ATR, it did not do so with
respect to the Cuban defendants. And, as in Disabled Rights Action Committee,
“the entire course of events suggests that” the order dismissing plaintiffs’ claims
against ATR was “not intended finally to dispose of the whole case.” Id. at 870.
As in Disabled Rights Action Committee, the district court here “appeared to
assume that even after the case was dismissed as to [ATR],” plaintiffs were “free to
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serve the [Cuban defendants] if [they] wished to do so.” Id. at 871. The district
court granted ATR’s motion to dismiss on April 20, 2012, and plaintiffs filed their
notice of appeal on May 1, 2012. We know from the docket sheet that after
dismissing ATR, the district court scheduled a pretrial conference and a trial for
plaintiffs’ claims against the Cuban defendants. On January 9, 2013, the district
court requested a status report from plaintiffs, who responded that they were still
trying to serve the Cuban defendants. On November 19, 2013, plaintiffs moved
the district court clerk for entry of default against the Cuban defendants. The clerk
declined to enter default. On December 11, 2013, plaintiffs moved the district
court for entry of default and default judgment. The district court denied the
motion because plaintiffs still had not properly served the Cuban defendants.
In March 2014, plaintiffs served the Cuban defendants. On plaintiffs’
motion, the clerk of court entered default against the Cuban defendants. The
district court set a deadline of June 6, 2014, for plaintiffs to file a motion for
default judgment. Plaintiffs have not yet moved for default judgment.
The district court’s order dismissing ATR thus “was not one that ‘left
nothing for the court to do but execute the judgment.’” Id. at 871 (alteration
omitted). “[F]urther adjudication” of plaintiffs’ claims was both “contemplated”
and actually carried out. Id. at 872. Therefore, the order granting ATR’s motion to
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dismiss was not a final judgment, and plaintiffs’ appeal from that order was
premature.
Under Federal Rule of Civil Procedure 54(b), a district court “may direct
entry of a final judgment as to one or more, but fewer than all, claims . . . if the
court expressly determines that there is no just reason for delay.” While the district
court’s order granting ATR’s motion to dismiss resolved fewer than all of
plaintiffs’ claims, the court did not “expressly determin[e] that there is no just
reason for delay” under Rule 54(b). “It may be that, by entering judgment, the
[district] court intended for the judgment to be appealable, but without a Rule
54(b) certification, we cannot be certain.” Rollins, 737 F.3d at 1254.
“[A]n order containing a Rule 54(b) certification is sufficient to validate a
prematurely filed notice of appeal if neither party is prejudiced.” Id. at 1253
(quoting Quach v. Cross, 216 F. App’x 666, 667 (9th Cir. 2007)) (internal
quotation mark omitted). In Rollins, this court ordered a limited remand of a
premature appeal for the district court to decide whether its nonfinal dismissal
order “should be certified as an appealable final judgment under Rule 54(b).” Id.
at 1254. We follow that approach here. “We find that neither party would be
prejudiced by a Rule 54(b) certification entered on limited remand.” Id. at
1253–54 (quoting Quach, 216 F. App’x at 667) (internal quotation mark omitted).
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Conclusion
We order a limited remand for the district court to determine whether its
order dismissing plaintiffs’ claims against ATR for lack of personal jurisdiction
should be certified as an appealable final judgment under Rule 54(b). If the district
court wishes to certify its order under Rule 54(b), it should make an express
finding that there is no just reason for delay. This panel shall retain jurisdiction
over this appeal. A copy of this order shall serve as the mandate of limited
remand. See id. at 1254.
IT IS SO ORDERED.
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