Alfredo Patrick Acosta, Plaintiff,androse Malfabon, Applicant-in-intervention/appellant, v. Toyota Motor Sales, U.s.a., Inc., a California Corporation,et al., Defendants-appellees, 24 F.3d 244 (9th Cir. 1994)

MEMORANDUM^** 

Rose Malfabon appeals the district court's denial of her motion for Fed. R. Civ. P. 54(b) certification of the court's order denying her motion to intervene as a plaintiff in this diversity action. We dismiss the appeal for lack of jurisdiction.

Alfredo Patrick Acosta filed this action against Toyota Motor Sales, U.S.A., Inc., et al. after his daughter was killed in a car accident. Toyota filed a third-party complaint against Malfabon, the victim's mother, who had previously settled with Toyota. Malfabon filed a counterclaim against Toyota and a cross-claim against her former counsel. On July 11, 1991 the district court dismissed Toyota's third-party complaint, and on November 21, 1991 it dismissed Malfabon's counterclaim and cross-claim, thereby removing Malfabon from the action.

Malfabon then moved to intervene as a plaintiff. The district court denied the motion on January 8, 1992. Malfabon moved for reconsideration, or, alternatively, for certification for appeal under Fed. R. Civ. P. 54(b). On March 13, 1992 the court denied reconsideration without addressing the Rule 54(b) certification. Malfabon did not appeal.

On September 27, 1993 the district court denied Malfabon's request for Rule 54(b) certification. Malfabon filed her notice of appeal from that order on October 27, 1993.

The district court's order denying Rule 54(b) certification is not appealable. See McCall v. Deeds, 849 F.2d 1259 (9th Cir. 1988). While one or more of the previous orders might have been appealable,¹  Malfabon's failure to timely appeal them deprives this court of jurisdiction to review them. See Fed. R. App. P. 4(a) (1); Alexander v. Sacha, 439 F.2d 742 (9th Cir. 1971).

DISMISSED.