Unpublished Disposition, 935 F.2d 274 (9th Cir. 1987)

MEMORANDUM^** 

James Thomas Mincey, Sr., appeals from the July 14, 1986, order of distribution of settlement and the September 28, 1987, order denying his motion for summary judgment and to vacate the July 14, 1986, order, as well as granting Marjean Carney and Alfred Fowler's motions to enforce the settlement. Appellant concedes that the July 14, 1986, order is not an appealable order (Appellant's Supplemental Brief at P. 6), but contends that the September 28, 1987, order is appealable. We disagree.

The denial of a motion for summary judgment is not ordinarily an appealable order. Roth v. Veteran's Administration of the Government of the United States, 856 F.2d 1401, 1404 (9th Cir. 1988). Furthermore, the district court did not dismiss this action in accordance with the settlement agreement as requested by Marjean Carney on September 4, 1987. On October 27, 1986, the district court ordered the parties to prepare a "formal order" regarding the oral settlement. No such order was ever prepared and presented to the court for its approval.

That portion of the September 28, 1987, order that directs enforcement of the settlement agreement is equally unappealable. At most, this order purported to resolve the dispute between the adult plaintiffs to this action. " [A] determination of whether an order is final is not always clear." Cheng v. Commissioner Internal Revenue Service, 878 F.2d 306, 309 (9th Cir. 1989). The Supreme Court has described a final decision, however, as a "decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).

The record demonstrates that the enforcement order was not final. The court held an evidentiary hearing on October 27, 1986, to determine whether Appellant voluntarily entered into the settlement agreement.

The parties agree that the settlement was contingent upon approval by the Los Angeles City Council. The record does not indicate that such approval was ever sought or obtained. The fact that the district court failed to rule on the motion to dismiss this action and conducted further proceedings in this matter demonstrates that the court was not prepared to enter a final judgment in this matter.

The district court's September 28, 1987, order enforcing the settlement agreement did not end the litigation so that all that was left for the court to do was to enforce the judgment. No order of dismissal of this action has been entered. This appeal is DISMISSED for lack of jurisdiction.