Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 925 F.2d 1470 (9th Cir. 1989)

No. 89-15865.

United States Court of Appeals, Ninth Circuit.

Before ALARCON, POOLE, Circuit Judges; and HATTER,**  District Judge.

MEMORANDUM*** 

FACTS

On May 14, 1987, Anne Gunsberg and her two children, whom she represents as guardian ad litem ("Gunsberg"), filed suit against the County of San Francisco and various agencies, officials and employees thereof ("San Francisco defendants"). The complaint alleged civil rights and pendent state claims arising over custody of the children.

On January 6, 1989, Gunsberg amended her complaint, adding as defendants, Marin County, and various agencies, officials and employees thereof ("Marin defendants"), and Parents United, Inc. and its employee, Nancy Frease ("Parents United").

The amended complaint's allegations against various officials and employees includes a litany of injurious acts and omissions. The district court found that the acts underlying Gunsberg's claims took place from July, 1984, through March, 1986. Thus, the original complaint was filed over a year after all the acts or omissions occurred.

On May 18, 1989, the court granted the motion of the San Francisco defendants for summary judgment. The order explained that the entire action was barred by the one year statute of limitations applicable to personal injury actions in California. The court rejected Gunsberg's arguments in opposition to summary judgment that injurious occurrences took place as late as May, 1987. Likewise, the court rejected, as unsupported by any evidence and completely lacking in merit, Gunsberg's claims of a conspiracy whose last overt act took place in November, 1988. Judgment was entered dismissing the entire action as to the San Francisco defendants on June 14, 1989.

On May 18, 1989, the court denied the Marin defendants' summary judgment motion, but granted their motion to dismiss. The last acts attributable to the Marin defendants, as alleged in the amended complaint, occurred in March, 1986. Thus, since the Marin defendants were not even named in the action until the January, 1989, amended complaint, the action was barred by the statute of limitations. The May 18 order was revised to include a Marin County employee omitted in the original order. Final judgments on the Marin defendants were entered on May 16 and 18, 1989.

There is no order or judgment which refers to Parents United before this Court. In their brief, appellees Marin County and Marin employees note that Parents United was apparently served with the amended complaint, but never appeared in the proceedings below.

ANALYSIS

Absent final judgment as to all parties in a lawsuit, a judgment is not final pursuant to 28 U.S.C. § 1291. When a party appeals a judgment in such a case, the court of appeals lacks jurisdiction. Fed. R. Civ. P. 54(b).

Before a party may appeal judgment as to some, but not all, claims or parties in a multi-claim or multi-party suit, the court of appeals requires certification pursuant to Rule 54(b) of the Federal Rules of Civil Procedure by the district court. Baker v. Limber, 647 F.2d 912, 916 (9th Cir. 1981). Such certification requires express determinations by the district court that the appeal should not be delayed and that its judgment should be entered. Baker, 647 F.2d at 916. However, in the absence of Rule 54(b) certification in a multi-party suit, if subsequent to the appeal, all claims are finalized as to all parties, the appellate court may treat the judgment as final for purposes of the appeal. Baker, 647 F.2d at 916.

Absent prejudice to the appellees, this circuit has been lenient in treating a pro se plaintiff's premature notice of appeal as effective when final judgment was entered subsequent to the notice of appeal. Eason v. Dickson, 390 F.2d 585 (9th Cir.), cert. denied, 392 U.S. 914 (1968). Such leniency is particularly apropos when the district court has disposed of the major issues in the case and the pro se appellant has put the court and appellees on notice that he thought that the appeal would apply to the final judgment. Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358 (9th Cir. 1967). Cf. Huene v. United States, 743 F.2d 703 (9th Cir. 1984) (judgment entered as to only one of two consolidated cases brought by pro se plaintiff not appealable absent Rule 54(b) certification).

If neither party is prejudiced, this circuit will recognize a premature notice of appeal when the district court retroactively certifies its prior judgment pursuant to Rule 54(b). Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir. 1986), citing Hope v. International Brotherhood of Electrical Workers, 785 F.2d 826, 828, n. 4 (9th Cir.), cert. dismissed, 478 U.S. 1039 (1986).

Here, there is no record of an order or judgment as to defendant Parents United, or its employee, Nancy Frease. Likewise, although the order of dismissal of Marin County employee S. Margaret Lee ("Lee") is noted as docketed on October 6, 1989 (Appellant's Excerpt of Record) there is no record before this Court of entry of judgment as to this defendant. Moreover, although judgment was entered on May 18, 1989, dismissing the entire action as to defendant Marin Court Appointed Special Advocate Project ("CASA"), Robin Turner Allen ("Allen"), an employee of CASA and named defendant, was not mentioned in the signed judgment.

The deficiencies in the record as to Lee and Allen are probably technical, but should be clarified before any future appeal. However, as there is no indication whatsoever of the status of Parents United in this suit, the lack of disposition as to this party is more serious. Therefore, absent final judgment as to Parents United, and since none of the judgments dismissing the other defendants in this case was certified for appeal pursuant to Rule 54(b), this Court lacks jurisdiction to hear the appeal.

Unlike the situation in Aguirre and Hope, there is no indication that either final judgment as to Parents United will be entered or that the district court will, retroactively, certify the appealed judgments pursuant to Rule 54(b) prior to this Court's impending consideration of the appeal. In Aguirre and Hope, oral argument on the appeal came at least six months after the district court issued the retroactive 54(b) certification order.

This Court lacks jurisdiction to hear this appeal. Therefore, we dismiss.

 *

The panel unanimously finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Federal Rule of Appellate Procedure 34(a)

 **

The Honorable Terry J. Hatter, Jr., United States District Court Judge for the Central District of California, sitting by designation

 ***

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