Unpublished Disposition, 881 F.2d 1083 (9th Cir. 1988)

MEMORANDUM^** 

Dulles appeals, pro se, the dismissal of his complaint by the district court. We dismiss his appeal, but remand to the district court to clarify whether its order is a final order of dismissal.

FACTS AND PROCEEDINGS BELOW

On March 22, 1988 Dulles filed a complaint in district court alleging that the named defendants had conspired to destroy evidence and defraud the federal courts. Having found no basis for subject matter jurisdiction the district court dismissed the complaint without prejudice. We lack jurisdiction under 28 U.S.C. § 1291 (1982) to hear this appeal.

STANDARD OF REVIEW

A dismissal of the complaint by the district court is reviewed de novo. Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir. 1986).

JURISDICTION

The district court dismissed Dulles' complaint without prejudice. There was no express dismissal of the underlying action. This is ordinarily not an appealable final order under 28 U.S.C. § 1291 (1982). See Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984). An exception to this rule, recognized in Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987), may apply. It is also possible that the district court determined that the appellant had stated no federal cause of action, but that a state cause might exist. Under these circumstances, a dismissal without prejudice would not bar the appellant's proceeding on his state cause in the proper state forum.

We are uncertain what the district court intended. Therefore, we dismiss this appeal and remand this case to the district court. That court may then either dismiss the action, permit Dulles to amend his complaint, or indicate that the dismissal was without prejudice to preserve any state cause of action the appellant might possess.

APPEAL DISMISSED and CASE REMANDED.