Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1025 (9th Cir. 1989)

Jacinto ZAMORA, Executor of the Estate of Jacinto ClarkZamora, Jr., Deceased, Plaintiff-Appellee,v.George T. HART, individually and as Chief of Police of thePolice Department of the City of Oakland, California; Cityof Oakland, Tommie Lee Young, Sidney Rice, Leon Drummer,individually and in their capacity as employees of the Cityof Oakland, Defendants-Appellants.

No. 88-15277.

United States Court of Appeals, Ninth Circuit.

Submitted June 26, 1989.* Decided Aug. 24, 1989.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.


ORDER

This appeal is ordered dismissed. Leon Drummer, Thomas Young, and Sidney Rice--the only remaining defendants in this case--are not named in the notice of appeal as required by Fed. R. App. P. 3(c). We therefore do not have jurisdiction over them, even considering the use of the phrase "et al." in the caption. Torres v. Oakland Scavenger Co., 108 S. Ct. 2405, 2509 (1988). Appellants' reliance on Ford v. Nicks, 866 F.2d 865, 869 (6th Cir. 1989), is not persuasive under the circumstances of this case. In Ford, the Court of Appeals for the Sixth Circuit distinguished Torres because,

English, unlike Latin, does have articles, and the body of the notice filed on behalf of Chancellor Nicks et al. says that the appeal is being taken by "the" defendants. There are some 18 defendants, and the statement that "the" defendants are taking the appeal gives fair notice that all 18 desire to be appellants, not just some of them.

Id. at 870.

Unlike the notice in Ford, however, Appellants' notice states, "defendants appeal," not "the defendants appeal." Id. (emphasis added). The omitted article is--as the court in Ford made clear--critical, because without it there is no way of discerning whether all the defendants are appealing or whether "some number greater than one but less than all" is appealing. Id. at 869. The body of Appellants' notice of appeal is thus equivalent to the "et al." distinction that was found in Torres to be insufficient for purposes of specifying unnamed parties as appellants.

Accordingly, the APPEAL is DISMISSED.

Judge Reinhardt dissents.

 *

The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4