NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 14 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
ELEANOR RIGGIO; CHESTER WISE; No. 11-15696
DEE ADAMS; BARRY MANN;
ARTHUR SHAW; JAMES STICKLE; D.C. No. 2:10-cv-01265-MHM
FRANK ACUNA, on behalf of themselves
and all employees similarly situated,
MEMORANDUM *
Plaintiffs - Appellants,
v.
SERVICE CORPORATION
INTERNATIONAL; SCI FUNERAL
AND CEMETERY PURCHASING
COOPERATIVE INCORPORATED; SCI
WESTERN MARKET SUPPORT
CENTER LP, AKA SCI Western Market
Support Center Incorporated; JANE D.
JONES; GWEN PETTEWAY; THOMAS
RYAN; SCI 401K RETIREMENT
SAVINGS PLAN; JULIE DOUGLAS,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted August 8, 2012
San Francisco, California
Before: CALLAHAN and WATFORD, Circuit Judges, and SINGLETON, Senior
District Judge.**
The district court erred in applying res judicata to dismiss this case because
the Stickle action in which the claims at issue were raised had not yet reached final
judgment. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Even
assuming the order deeming those claims waived constituted an adjudication on the
merits, it would have been an interlocutory order that – absent certification under
Rule 54(b) – was not yet entitled to res judicata effect. See Continental Airlines,
Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1525 (9th Cir. 1987); see also
Clausen Co. v. Dynatron/Bondo Corp., 889 F.2d 459, 466 (3d Cir. 1989) (district
court order disposing of second count of infringement was interlocutory because
first count was still pending and thus had no res judicata effect); Avondale
Shipyards, Inc. v. Insured Lloyd’s, 786 F.2d 1265, 1270 (5th Cir. 1986) (noting
that “partial summary judgment orders lack the finality necessary for preclusion”).
Appellees argue for the first time on appeal that the case should be dismissed
as duplicative of the ongoing Stickle action under Adams v. California Department
**
The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
2
of Health Services, 487 F.3d 684 (9th Cir. 2007). Although we held in Adams that
the district court had not abused its discretion in dismissing the action as
duplicative, we recognized that it also had discretion to consolidate the two actions
or to stay or enjoin proceedings. See id. at 692. Here, because the district court
dismissed the case under res judicata, it has not yet decided whether to exercise its
discretion under Adams. Given subsequent developments in the Stickle action, we
believe it is prudent to allow the district court to decide whether to exercise its
discretion in the first instance. Accordingly, without expressing any view as to the
proper result, we remand the case to the district court to decide whether to allow
the action to proceed or, under Adams, to dismiss the action, consolidate it with the
Stickle action, or stay or enjoin proceedings.
VACATED AND REMANDED.
3