Tutor-saliba-perini Jv, Plaintiff-appellant, v. Laborers International Union Local 300, Defendant-appellee, 34 F.3d 1074 (9th Cir. 1994)

Before: O'SCANNLAIN and T.G. NELSON, Circuit Judges, and MERHIGE, Senior District Judge.² 

MEMORANDUM³ 

Appellant Tutor-Saliba-Perini JV appeals from the district court's order dismissing the cause without prejudice. After appellant sought, without leave of court, to amend the original complaint so as to drop the original plaintiff, substitute the original defendant as the new plaintiff, and add a different defendant, the court ordered the parties to show cause why the matter should not be dismissed. After a hearing, the district court dismissed the action without prejudice. At the time of the district court's dismissal order, the statute of limitations on the action to vacate the underlying arbitration awards had run, and the district court declined to order that a new complaint relate back to the original filing.

Assuming, arguendo, that appellant has standing to bring the instant appeal, see Estate of Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1276 (9th Cir. 1990) (to have standing to appeal, party must be aggrieved by district court's order), the Court determines that, as the original defendant, appellant could not amend an opposing party's pleading. The district court's dismissal based on Federal Rule of Civil Procedure 41(b) was not an abuse of discretion. See Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (court will overturn dismissal sanction only where it has definite and firm conviction that it was clearly outside acceptable range of sanctions), cert. denied, 488 U.S. 819 (1988).

In addition, appellant contends that the district court's findings of fact were clearly erroneous. Appellant has come forward with no grounds to overcome the clearly erroneous standard this Court applies to the district court's findings of fact. See Harbeson v. Parke Davis, Inc., 746 F.2d 517, 521 (9th Cir. 1984) (court must accept district court's factual findings unless left with definite and firm conviction that a mistake has been committed).

AFFIRMED.