Unpublished Disposition, 896 F.2d 555 (9th Cir. 1988)

MEMORANDUM^** 

Tao Chang, Peter Chang, and Danny Chang appeal from the district court's order dismissing their 42 U.S.C. § 1983 claim with prejudice for failure to state a cause of action pursuant to Fed. R. Civ. P. 12(b) (6). We vacate and remand for clarification of our jurisdiction.

PERTINENT FACTS

On February 20, 1986, Richmond Police Officer Richard Clark received a report of a residential burglary, in which a .44 magnum handgun was listed as among the items stolen. Several days later, Officer Clark obtained information from a juvenile informant about the burglary. The informant stated that the perpetrator was Chae Won Chang, who attended De Anza High School and lived on Morningside Drive in Richmond. The informant pointed out 3584 Morningside Drive as Chae Won Chang's residence.

On February 24, 1986, Officer Clark spoke with the Dean of Boys at the De Anza High School. The dean informed Officer Clark that Chae Won Chang was currently enrolled at De Anza High School and that his residence was 3584 Morningside Drive. A school official furnished Officer Clark with an identification card that listed Chae Won Chang's residence as 3584 Morningside Drive.

Officer Clark and another Richmond police officer then traveled to 3584 Morningside Drive. Officer Clark ran a Department of Motor Vehicles check on the license plate of an automobile parked in front of the residence. The check showed that the automobile was registered to a Mr. Chang at 3584 Morningside Drive. Officer Clark was informed by the Pacific Gas & Electric Company that service at that address was in the name of Chang.

Based on this information, the officers obtained a search warrant for 3584 Morningside Drive. On February 26, 1986, the officers conducted a search of the residence. Because no one was at home at the time the warrant was executed, the officers forced open the front door.

The residence searched was the home of Tao, Peter, and Danny Chang (the Changs). De Anza High School had incorrectly listed Chae Won Chang's residence as 3584 Morningside Drive. The juvenile informant had pointed out the wrong house to the officers.

The Changs filed a complaint pursuant to 42 U.S.C. § 1983 seeking damages for alleged constitutional violations resulting from the search. The Changs also alleged pendent state claims for invasion of privacy as well as and negligent and intentional infliction of emotional distress.

On January 6, 1988, at the pre-trial conference, the district court ordered the Changs to set forth in writing all evidence on which they based their prima facie case pursuant to 42 U.S.C. § 1983. On July 18, 1988, after considering the briefs and the evidence submitted by all parties, the district court indicated that it would dismiss sua sponte the Sec. 1983 claims. On October 25, 1988, the district court filed an order dismissing "all federal causes of action" in the plaintiffs' complaint "for failure to state a cause of action under 42 U.S.C. § 1983." The district court reasoned that the plaintiffs had failed "to state facts showing more than mere negligence on the part of defendants as required by section 1983." In the final sentence of the order, the district court stated: "IT IS ORDERED that this cause be, and hereby is, dismissed with prejudice."

This language leaves unclear whether the district court dismissed only the Changs' federal causes of action, or, in addition, exercised its discretion to dismiss the Changs' state causes of action pursuant to United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966). It is also unclear whether the district court meant to reach the merits of the state issues by dismissing them with prejudice. If the district court did not dismiss the pendent claims, we may not have jurisdiction over this matter. See Fed. R. Civ. P. 54(b).

When a doubt arises regarding what occurred in the district court, Federal Rule of Appellate Procedure 10(e) provides that this court may sua sponte remand the question for settlement by the district court. Fed. R. App. P. 10(e); see United States v. Miller, 771 F.2d 1219, 1231 (9th Cir. 1985) (approving remand to district court to correct record). Upon remand, the district court is directed to enter a new order setting forth its disposition, if any, of the pendent claims as well as the federal causes of action. The judgment of dismissal is VACATED and this matter is REMANDED to the United States District Court for the Northern District of California.