Hughes Salaried Retirees Action Committee; Peter Formo;richard E. Miller; Normal C. Rigby, Plaintiffs-appellants, v. Administration of the Hughes Non-bargaining Retirement Plan,defendant-appellee, 978 F.2d 1265 (9th Cir. 1992)

ORDER

At oral argument, the panel suggested there might be no final order. Counsel said the district court made it clear at the hearing that the dismissal was to be with prejudice.

The district court's instructions to counsel at the hearing on the motion were to "submit a proposed court order for my editing that states fully the reasons for this."

In editing the ten-page proposed order, the district court struck out language saying the complaint was dismissed in its entirety "without leave to amend." It also struck an entire paragraph which said, in part, that the defects in the pleading could not be cured by amendment. The court also struck language denying the cross-motion for summary judgment as moot. Language was substituted which "deemed" the cross-motion moot and taking it off calendar. The order of dismissal also speaks to dismissal of the complaint, but not the action.

While this court will consider an order of dismissal to be final if it appears that the district court intended to dismiss the action ( see Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984)), that is not the situation here. The form of the order, the lack of a separate judgment as required by Rule 58, Fed. R. Civ. P. and the specific language edited out and added by the district court lead us to conclude there is no final decision of the district court, without which we have no jurisdiction. 28 U.S.C. § 1291.

APPEAL DISMISSED.