Chweya v. Baca

65 F. App'x 598

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 29, 2003
• Docket: No. 02-55382
• Status: Published

Opinion

ORDER

Rodney Chweya appeals a judgment entered by the district court on behalf of defendants Scott Hoglund and Nicholas Cabrera. The district court denied on the merits the claims raised by Chweya. We dismiss Chweya’s appeal for lack of jurisdiction.

Chweya bases jurisdiction on 28 U.S.C. § 1291, which provides for appellate jurisdiction over final decisions. An order which does not resolve the claims against all of the parties in the action is not a final decision. Fed R. Civ. P. 54(b); see also Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir.1981). The district court, over the course of two orders, ruled on Chweya’s claims, but did not address all the parties in the case. Normally, this would not bar jurisdiction if the district court intended to include all defendants within the scope of its orders. See Johnson v. Meltzer, 134 F.3d 1393, 1396 (9th Cir.1998).

The district court’s summary judgment order was rendered non-final, however, when we reversed the district court’s earlier dismissal of defendant Leroy Baca from the case. The claims against Baca were not before the district court once Chweya’s proper interlocutory notice of appeal was filed. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (filing a notice of appeal divests a district court of control over aspects of the case involved in the appeal).

We reversed the dismissal of the claims against Baca on February 15, 2002, ten days after the district court granted Hoglund and Cabrera summary judgment and four days before the judgment in Hoglund and Cabrera’s favor was entered. The district court lacked jurisdiction over the Baca claims until our mandate issued on March 19, 2002. See Caldwell v. Puget Sound Apprenticeship & Training Trust, 824 F.2d 765, 767 (9th Cir.1987) (issuance of mandate returns matter to the district court).

As the claims against Baca could not have been included in the district court’s summary judgment order, Baca remains as a defendant in the case and the claims against him have not been adjudicated.¹ There is no final decision. We lack jurisdiction.

DISMISSED.

1 . We also note that on June 17, 2002, we affirmed the district court’s denial of absolute and qualified immunity for Zev Yaroslavsky, another defendant whose matter was on interlocutory appeal before us. See Chweya v. Yaroslavsky, 2002 WL 1316484 (9th Cir. 2002).