Ballard v. Baldridge

209 F.3d 1160

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2000
• Docket: 99-17369
• Status: Published

Opinion

209 F.3d 1160 (9th Cir. 2000)

DOUGLAS BALLARD,Plaintiff-Appellant,
v.
RANDY BALDRIDGE, City of Casa Grande Fire Marshall; BRAD JOHNSON, City of Casa Grande Building Inspector; KENT MYERS,City of Casa Grande Manager; RON GIBSON, City of Casa Grande Fire Inspector; DOUG CURRIE, City of Casa Grande Building ORDER Inspector; BOB MITCHELL, City of Casa Grande Mayor; RALPH WEST, City of Casa Grande Councilman; STEPHEN COOPER; VERNON HANCOCK; RICHARD REID; RUDY SALAZAR; MERRIL FORSYTH, City of Casa Grande Councilmen,Defendants-Appellees.

No. 99-17369

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

April 17, 2000

COUNSEL: A. Thomas Cole, Cole & O'Neil, Casa Grande, Arizona for the plaintiff-appellant.

Scott A. Salmon, O'Connor, Cavanagh, Anderson, Killingswoth & Beshears, Phoenix, Arizona, for the defendantsappellees.

Before: Betty B. Fletcher, Dorothy W. Nelson, and Robert R. Beezer, Circuit Judges.

ORDER

We dismiss without prejudice the appeal for lack of jurisdiction because the district court's order vacating the judgment was not a final order. See 28 U.S.C.S 1291. A final order is 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.' Catlin v. United States , 324 U.S. 229, 233 (1945)." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). Orders vacating judgments without more under Rule 60(b) are interlocutory orders which are not appealable. Resnik v. La Paz Guest Ranch, 289 F.2d 814, 817 (9th Cir. 1961). This is in keeping with the general rule in other circuits that a vacatur of a judgment in response to a Rule 60(b) order is not a final judgment. See Parks v. Collins , 761 F.2d 1101, 1103-4 (5th Cir. 1985) ("When an order granting a Rule 60(b) motion, `merely vacates the judgment and leaves the case pending for further determination the order is akin to an order granting a new trial and is interlocutory and nonappealable.' 7 J. Moore, Moore's Federal Practice P 60.30 (2d ed. 1983)"). At such time as a final order is entered in this matter, an appeal may be taken.

DISMISSED without prejudice