Fantasy, Inc., Plaintiff-appellant, v. La Face Records, Defendant-appellee, 168 F.3d 498 (9th Cir. 1999)

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US Court of Appeals for the Ninth Circuit - 168 F.3d 498 (9th Cir. 1999) Argued and Submitted Dec. 8, 1998. Decided Jan. 26, 1999

Appeal from the United States District Court for the Northern District of California Samuel Conti, District Judge, Presiding.

Before REINHARDT, NOONAN and HAWKINS, Circuit Judges.


ORDER

Final judgment was not entered by the district court in this case. The district court dismissed the complaint under Rule 12(b) (6) but, as no answer had been filed, the plaintiff had an automatic right to amend under Rule 15--a right which it did not choose to exercise. The case is therefore governed by WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). We lack jurisdiction.

The appeal is dismissed. The district court may enter judgment if Fantasy, Inc. elects not to exercise its right to amend. If Fantasy, Inc. does elect to amend to allege common law copyright claims, the district court cannot enter judgment if a disputed factual issue exists as to the effect of the California statute of limitations.

The present appeal is DISMISSED.