Slaughter-Payne v. Peake

304 F. App'x 487

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 2, 2008
• Docket: No. 07-15749
• Status: Published

Opinion

MEMORANDUM

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We dismiss Martha Elizabeth Slaughter-Payne’s (Slaughter-Payne) appeal for lack of jurisdiction. See 28 U.S.C. § 1291. Slaughter-Payne filed a first amended complaint, asserting four claims. She then moved for leave of the court to file a second amended complaint, dropping one claim and adding a new claim for bad faith spoliation. While the motion to amend the complaint was pending, both parties moved for summary judgment on the first amended complaint. The district court granted Slaughter-Payne’s motion to file the second complaint. It subsequently granted the government’s motion for summary judgment on the first complaint. The district court’s order did not refer to the newly added claim of bad faith spoliation. We were confronted with the same sequence of events in Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir.1981), and concluded that we must dismiss such an appeal because the order dismissing only some of the claims was not a final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. We similarly lack jurisdiction over this appeal because the bad faith spoliation claim remains pending before the district court. If another appeal is filed in this case, the clerk is directed to refer it to this panel.

APPEAL DISMISSED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.