Unpublished Disposition, 908 F.2d 976 (9th Cir. 1990)

No. 89-15787.

United States Court of Appeals, Ninth Circuit.

Before NELSON and TROTT, Circuit Judges, and STEPHENS,^**  Jr., District Judge.

ORDER^*** 

Appellant Edward Diamontiney challenges the district court's refusal to address pendent claims in his 42 U.S.C. § 1983 suit. In response to an order to show cause why this appeal should not be dismissed for lack of jurisdiction, appellant argued that this court could review the district court's decision on the pendent claims in conjunction with a review of the district court's "final decision" on a related Eighth Amendment claim.¹  Appellant also argued, in his response, that the district court decision is reviewable under the "collateral order" doctrine.

A. Appealability of Partial Summary Judgment

Absent an express judicial finding to the contrary, an order adjudicating fewer than all of the claims in a suit is not a final order for purposes of 28 U.S.C. § 1291 (1988). Fed. R. Civ. P. 54(b).²  The district court's order granting partial summary judgment is thus not appealable and does not provide a basis for review of appellant's pendent claims. See Cheng v. Commissioner, 878 F.2d 306, 309 (9th Cir. 1989).

"To fall within the limited class of final collateral orders, an order must (1) 'conclusively determine the disputed question,' (2) 'resolve an important issue completely separate from the merits of the action,' and (3) 'be effectively unreviewable on appeal from a final judgment.' " Midland Asphalt Corp. v. United States, 109 S. Ct. 1494, 1497 (1989) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)); Estate of Bishop v. Bechtel Power Corp., No. 89-55018, slip op. at 5958 (9th Cir. June 8, 1990).

The third element, unreviewability, "is present only in a narrow class of cases where 'denial of immediate review would render impossible any review whatsoever.' " Estate of Bishop, slip op. at 5959. Because this court can review the district court's treatment of appellant's pendent claims after the district court has rendered a final decision on the merits of the case, the order in question does not meet the strict requirements of the third prong of the collateral order test.

Since this court cannot hear appellant's claims either in conjunction with a review of a partial summary judgment order or under the collateral order doctrine, this appeal is dismissed for lack of jurisdiction.