Joseph A. Parise, Plaintiff-appellant, v. California Highway Patrol, Defendant-appellee, 892 F.2d 83 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 892 F.2d 83 (9th Cir. 1989)

Submitted Dec. 11, 1989. *Decided Dec. 18, 1989

Before EUGENE A. WRIGHT, HUG, and LEAVY, Circuit Judges.


Joseph A. Parise appeals the dismissal of his complaint against the California Highway Patrol. We dismiss for lack of jurisdiction.

The district court entered an order dismissing the complaint on the government's motion under Fed. R. Civ. P. 12(b) (6). No final judgment was entered. This circuit does not ordinarily allow appeal from an order dismissing the complaint rather than the action. Gerritson v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987); Jackson v. Nelson, 405 F.2d 872 (9th Cir. 1968). We lack jurisdiction in such cases because there is no "final decision" to be appealed. 28 U.S.C. § 1291.

Although the order here does not specify that Parise had leave to amend, amendment is a matter of course in a dismissal under Fed. R. Civ. P. 12(b) (6). See Scanlon v. Atascadero State Hospital, 677 F.2d 1271 (9th Cir. 1982), vacated on other grounds, 465 U.S. 1095 (1984). We find no special circumstances demonstrating that the court found that the plaintiff could not save the complaint with any reasonable amendment. See Proud v. United States, 704 F.2d 1099 (9th Cir. 1983).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3