Ehm Productions, Inc. v. Starline Tours of Hollywood

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2020
• Docket: 19-55288
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EHM PRODUCTIONS, INC., DBA TMZ, a No. 19-55288 California corporation; WARNER BROS. ENTERTAINMENT INC., a Delaware D.C. No. corporation, 2:16-cv-02001-SJO-GJS

Plaintiffs-Appellees, MEMORANDUM* v.

STARLINE TOURS OF HOLLYWOOD, INC., a California corporation,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Argued and Submitted August 10, 2020 Pasadena, California

Before: WARDLAW and CLIFTON, Circuit Judges, and HILLMAN, ** District Judge.

Starline Tours of Hollywood, Inc. (Starline) appeals the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. orders dismissing its First Amended Counterclaim (FACC) and denying its motion

for leave to amend. We dismiss this appeal for lack of appellate jurisdiction.

1. Under 28 U.S.C. § 1291, the courts of appeals have jurisdiction over

“final decisions of the district court.” Nat’l Distrib. Agency v. Nationwide Mut.

Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997). Generally, “a voluntary dismissal

without prejudice is ordinarily not a final judgment from which the plaintiff may

appeal.” Galaza v. Wolf, 954 F.3d 1267, 1270 (9th Cir. 2020) (cleaned up). A

limited exception to this rule—which Starline seeks to invoke—permits an appeal

“when a party that has suffered an adverse partial judgment subsequently dismisses

its remaining claims without prejudice with the approval of the district court, and

the record reveals no evidence of intent to manipulate our appellate jurisdiction.”

James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1070 (9th Cir. 2002) (cleaned up).

We recently reemphasized that this exception applies only if the dismissing party

secures “the approval and meaningful participation of the district court.” Galaza,

954 F.3d at 1272.

Here, “there was no meaningful district court participation in” the parties’

“voluntary dismissal” of their surviving claims. Id. at 1271. The parties effected

this dismissal through a “Joint Stipulation re Dismissal of Action Without

Prejudice” under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Rule

41(a)(1)(A) is a mechanism for voluntary dismissal “Without a Court Order,” and

2 the parties’ joint dismissal did not request an order or entry of partial judgment.

The district court issued no further orders in this case. Because the district court

played no role in the parties’ voluntary dismissal of the claims, that dismissal did

not produce a final, appealable order. Galaza, 954 F.3d at 1272.

2. Starline’s arguments to the contrary are unavailing.

First, while the joint stipulation stated that the voluntary dismissal was “at

the suggestion of the Court,” it also noted that this suggestion was “to avoid an

unnecessary appearance at the pre-trial conference,” rather than a substantive

direction as to the remaining claims. In any event, even if “the district court

approved the stipulation to . . . dismiss, such approval cannot be said to involve

meaningful consideration or participation by the district court inasmuch as the

parties were entitled to do so without leave of the court.” Am. States Ins. Co. v.

Dastar Corp., 318 F.3d 881, 888 (9th Cir. 2003) (cleaned up).

Second, the clerk of court’s entry of the “Report on the Filing or

Determination of an Action Regarding a Patent or Trademark” on the district court

docket is irrelevant. Clerks of court are required by statute to transmit certain

information in this form to the United States Patent and Trademark Office. 15

U.S.C. §§ 1116, 1127. That the clerk fulfilled this reporting requirement after the

parties dismissed their claims does not signify that the district judge meaningfully

participated in the voluntary dismissal.

3 3. Finally, the record does not contain “unambiguous evidence” that the

parties intended their stipulation of voluntary dismissal to serve as a dismissal with

prejudice. Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738,

751 (9th Cir. 2008). Unlike in some of our prior cases, see id. at 750, the

stipulation here expressly stated that the dismissal was “without prejudice.” Nor

did the stipulation “permit . . . appeal of the underlying order they considered

determinative” or serve some other function that would counsel in favor of treating

their stipulation as effecting a “dismissal with prejudice.” Concha v. London, 62

F.3d 1493, 1508 (9th Cir. 1995) (cleaned up).

DISMISSED.