Unpublished Disposition, 852 F.2d 571 (9th Cir. 1982)

MEMORANDUM^** 

On October 1, 1980, the district court dismissed Carter's prior section 1983 complaint. On March 17, 1982, Carter filed a diversity suit consisting of a contract claim and a claim that McConnel pleaded him guilty without authorization. The district court dismissed the action under principles of res judicata. Contending that the prior action is fictitious, Carter appeals the dismissal. While the contention is wholly unmeritorious, we are nonetheless compelled to reverse.

"Ordinarily an order dismissing the complaint rather than dismissing the action is not a final order...." Gerritsen v. Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987). Such an order may be considered final only if the record shows clearly that the trial court found that " 'the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make....' " State of California v. Harvier, 700 F.2d 1217, 1218 (9th Cir. 1983) (quoting Marshall v. Sawyer, 301 F.2d 639, 643 (9th Cir. 1962)).

Here the language of the dismissal in the prior action suggests that the district court did not intend the order to be final. The court ordered the dismissal of "the complaint" rather than the dismissal of "the action." Although the " [f]ailure to allow leave to amend supports an inference that the district court intended to make the order final," Gerritsen, 819 F.2d at 1514, unlike prior cases where we have found Fed. R. Civ. P. 12(b) (6) dismissals to be final, there is no further indication in the record to support that inference. See id. at 1514-15; Scott v. Eversole Mortuary, 522 F.2d 1110, 1112 n. 1 (9th Cir. 1975). On this record, it is not clear that the district court found that Carter's complaint could not have been saved by appropriate amendment. Indeed, the complaint might easily have been amended to assert a contract theory and diversity jurisdiction. Thus, the order dismissing the complaint is not a final judgment and accordingly lacks claim-preclusive effect.

REVERSED AND REMANDED.