Robert A. Jones, Appellant, v. J. F. Coakley, District Attorney; Jerry G. Murphy, Deputy District Attorney; Chris C. Gasparich, Deputy Public Defender in and for the County of Alameda, of the State of California, et al., Appellees, 418 F.2d 1238 (9th Cir. 1969)

In this civil rights action, plaintiff Robert A. Jones initially named, as defendants, J. F. Coakley, District Attorney, Jerry G. Murphy, Deputy District Attorney, and Chris G. Gasparich, Deputy Public Defender. On motion of Coakley, who was the only defendant originally served with process, the complaint was dismissed as to him on November 8, 1966, under Rule 12(b), Federal Rules of Civil Procedure.

Jones filed an amended complaint naming the three original defendants and three additional defendants. It was not until after the filing of the amended complaint that service of summons was made upon defendant Gasparich. Service of summons has never been made on the remaining four defendants.

On motion of Gasparich the action was dismissed as to him under Rule 12(b), Federal Rules of Civil Procedure on June 5, 1968. Jones filed a timely notice of appeal referring only to the dismissal order of June 5, 1968. While Jones indicated in his notice of appeal that he regarded that order as a dismissal of the action not only as to Gasparich, but also as to Coakley, the order actually did not dismiss the action as to Coakley. Gasparich, but not Coakley, appeared in this court on the appeal.

The appeal must be dismissed because it is not taken from a final decision, as required by 28 U.S.C. § 1291. While, as indicated above, the original complaint was dismissed as to Coakley, the action has never been dismissed as to him. While the action was dismissed as to Gasparich, the pendency of the action as to codefendant Coakley deprives the Gasparich dismissal of finality under Rule 54(b), Federal Rules of Civil Procedure.