NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 11 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
EDWIN K. SLAUGHTER; REBECCA No. 10-15439
FLINN; MEL HEALEY; and CAROL
HEALEY, D.C. No. 2:08-cv-01223-RCJ-
GWF
Plaintiffs - Appellants,
DENNIS FABBRI; CARMEN FABBRI; MEMORANDUM*
ROBERT WOLINSKY; MARTHA
WOLINSKY; and JANA M.
ANDERSON,
Plaintiff-Intervenors -
Appellants,
v.
UPONOR, INC.; UPONOR NORTH
AMERICA, INC.; RCR PLUMBING
AND MECHANICAL, INC.;
INTERSTATE PLUMBING &
CONDITIONING, LLC; UNITED
PLUMBING, LLC; FERGUSON
ENTERPRISES, INC.; HUGHES WATER
& SEWER, LP; and STANDARD
WHOLESALE SUPPLY COMPANY,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
EDWIN K. SLAUGHTER; REBECCA No. 10-17844
FLINN; MEL HEALEY; and CAROL
HEALEY, D.C. No. 2:08-cv-01223-RCJ-
GWF
Plaintiffs - Appellants,
DENNIS FABBRI; CARMEN FABBRI;
ROBERT WOLINSKY; MARTHA
WOLINSKY; and JANA M.
ANDERSON,
Plaintiff-Intervenors -
Appellants,
v.
UPONOR, INC.; UPONOR NORTH
AMERICA, INC.; RCR PLUMBING
AND MECHANICAL, INC.;
INTERSTATE PLUMBING &
CONDITIONING, LLC; UNITED
PLUMBING, LLC; FERGUSON
ENTERPRISES, INC.; HUGHES WATER
& SEWER, LP; and STANDARD
WHOLESALE SUPPLY COMPANY,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted December 7, 2011
San Francisco, California
2
Before: O’SCANNLAIN and BERZON, Circuit Judges, and ENGLAND, District
Judge.**
Edwin Slaughter and several other homeowners (collectively,
“Homeowners”) appeal the dismissal of their complaint with prejudice.
Homeowners raise several issues on appeal. The facts are known to the parties and
will not be recounted here.
I
First, Homeowners contend that the district court abused its discretion by
imposing the condition of prejudice in its dismissal order.1 Federal Rule of Civil
Procedure 41(a)(2) states: “[A]n action may be dismissed at the plaintiff’s request
only by court order, on terms that the court considers proper.”
Homeowners argue that state law requires the dismissal of this action
without prejudice. See Nev. Rev. Stat. § 40.647(2) (“If a claimant commences an
action without complying with [Chapter 40], the court shall: (a) Dismiss the action
without prejudice and compel the claimant to comply with those provisions before
filing another action . . . .”). It is unclear whether section 40.647(2) applies to this
**
The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
1
Defendants respond that we are without jurisdiction to consider a
voluntary dismissal. That argument is foreclosed by our decision in Concha v.
London, 62 F.3d 1493, 1507 (9th Cir. 1995).
3
case. While the Homeowners did provide their contractors written notice of their
construction defect claims, id. § 40.645(1), such notice was provided after the
instant suit had been commenced. Moreover, it is not clear whether the
Homeowners “[a]llow[ed] an inspection of the alleged constructional defect” as
required by Nevada Revised Statutes § 40.647(1)(a).
The district court’s failure to consider whether the Homeowners complied
with Chapter 40 — and the district court’s subsequent failure to consider whether
Federal Rule of Civil Procedure 41(a)(2) or section 40.647(2) applies to this action
under the Erie doctrine — was an abuse of discretion. See generally Erie R.R. Co.
v. Tompkins, 304 U.S. 64 (1938); Goldberg v. Pac. Indem. Co., 627 F.3d 752,
755–56 (9th Cir. 2010).
II
Homeowners next ask us to pass judgment on various orders by the district
court pertaining to several unrelated cases, including Gables Condominium Owners
Ass’n v. Uponor, Inc., No. 2:09-CV-01868 (D. Nev. 2010). We are without
jurisdiction to render opinions on orders extraneous to the case at hand.2 See
2
Accordingly, we deny both Homeowners’ Motion to Take Judicial
Notice, filed September 12, 2011, and Homeowners’ Motion to Take Judicial
Notice, filed November 7, 2011, as moot.
4
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000)
(en banc).
III
Finally, Homeowners argue that the district court erred by refusing to allow
certain formerly putative class members to intervene after Homeowners’ request
for class certification was withdrawn. No one disputes that the applicants’ motion
was timely or that they asserted “an interest relating to the property or transaction
which is the subject of the action.” Scotts Valley Band of Pomo Indians v. United
States, 921 F.2d 924, 926 (9th Cir. 1990). Yet the district court denied intervention
because it concluded that applicants’ interests were adequately represented by
Homeowners. We disagree. The very fact that the motion to intervene was filed
after Homeowners withdrew their motion for class certification shows that
Homeowners did not adequately represent applicants’ interests. The district
court’s denial of the motion to intervene was in error.
REVERSED AND REMANDED.3
3
The district court’s award of costs and fees to defendants falls with the
reversal of the district court’s judgment. Bourns, Inc. v. Raychem Corp., 331 F.3d
704, 712 (9th Cir. 2003).
5