WMX TECHNOLOGIES, INC. v. MILLER

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Docket Number

No. 93-55917

Attorney(S)

Robert H. Friebert, Friebert, Finerty St. John, Milwaukee, Wisconsin, and Gerald L. McMahon, Seltzer Caplan Wilkins McMahon, San Diego, California, for Plaintiffs-Appellants. Morris J. Hill, Office of the County Counsel, San Diego, California, for Defendant-Appellee.

Judges

Ferdinand Francis Fernandez

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Smart Summary

Factual and Procedural Background

WMX Technologies, Inc. filed a lawsuit against Edwin L. Miller, Jr., the District Attorney of San Diego County, California, following the issuance of a report unfavorable to WMX. The district court granted Miller's Federal Rule of Civil Procedure 12(b)(6) motion to dismiss the complaint, dismissing plaintiffs' first, second, and fifth claims with prejudice and their third and fourth claims without prejudice but with leave to amend. The district court ordered that any amended complaint be filed within thirty days. WMX neither filed an amended complaint nor informed the district court that it would not do so. Instead, WMX filed a notice of appeal without obtaining a final order of dismissal from the district court.

Legal Issues Presented

Whether the appellate court has jurisdiction to hear an appeal when the district court has dismissed some claims with prejudice and others without prejudice but granted leave to amend, and the plaintiff has not filed an amended complaint or obtained a final judgment.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jung v. K. D. Mining Co., Inc., 356 U.S. 335 (1958)	Dismissal with leave to amend is not a final judgment until a final order is entered; appealability requires a definitive end to the case.	The court relied on Jung to hold that the district court's order granting leave to amend did not constitute a final judgment, thus depriving the appellate court of jurisdiction.
MacKay v. Pfeil, 827 F.2d 540 (9th Cir. 1987)	Appellate courts must raise jurisdictional questions sua sponte.	The court raised the jurisdictional issue sua sponte and concluded it lacked jurisdiction over the appeal.
Rodgers v. Watt, 722 F.2d 456 (9th Cir. 1983) (en banc)	Reinforces the necessity of finality for appellate jurisdiction.	Supported the court’s determination that no final judgment existed.
Proud v. United States, 704 F.2d 1099 (9th Cir. 1983) (per curiam)	Dismissing complaint with leave to amend is not final; failure to amend without notifying the court does not create finality.	The court applied Proud to dismiss the appeal for lack of jurisdiction due to absence of final judgment.
Lopez v. City of Needles, 95 F.3d 20 (9th Cir. 1996)	Dismissal without prejudice with leave to amend is not appealable final decision unless plaintiff files written notice of intent not to amend.	Reaffirmed the rule that without such notice or final judgment, the appeal must be dismissed.
Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468 (9th Cir. 1994)	Some cases have suggested a plaintiff may stand on a complaint after dismissal without prejudice.	The court overruled any contrary interpretation, requiring a final district court order.
McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1992)	Similar to Carson Harbor, previously suggested plaintiff could stand on complaint.	Overruled to the extent inconsistent with the requirement of a final judgment.
North Carolina Nat'l Bank v. Montilla, 600 F.2d 333 (1st Cir. 1979) (per curiam)	Order dismissing with leave to amend is interlocutory, not final.	Referenced to show circuit consensus that leave to amend delays finality.
Richards v. Dunne, 325 F.2d 155 (1st Cir. 1963) (per curiam)	Order dismissing with leave to amend requires subsequent final dismissal order to be appealable.	Supports the necessity of a final order before appeal.
Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35 (2d Cir. 1990)	Dismissal with leave to amend becomes final after amendment deadline passes.	Discussed the timing of finality but noted lack of specific finality date.
Shapiro v. UJB Fin. Corp., 964 F.2d 272 (3d Cir. 1992)	Dismissal with leave to amend is interlocutory but can be made final if plaintiff elects to stand on complaint.	Referenced for the condition under which finality may be achieved.
Anastasiadis v. S.S. Little John, 339 F.2d 538 (5th Cir. 1965)	Dismissal with leave to amend is not a final appealable order.	Supports the general principle of non-finality absent explicit final order.
Azar v. Conley, 480 F.2d 220 (6th Cir. 1973)	Dismissal without prejudice to amend is not final where amendment is possible.	Affirms the need for finality before appeal.
Otis v. City of Chicago, 29 F.3d 1159 (7th Cir. 1994) (en banc)	Finality arises when time to amend expires; adherence to federal rules preferred.	Discussed but not adopted as controlling; court favors clear finality.
Tietz v. Local 10 of Int'l Ass'n of Bridge, Struct., Ornamental Iron Workers, 525 F.2d 688 (8th Cir. 1975) (per curiam)	Dismissal with leave to amend is not final and appealable.	Supports the principle reaffirmed by this court.
Landmark Land Co. v. Buchanan, 874 F.2d 717 (10th Cir. 1989)	Dismissal with leave to amend is not appealable.	Consistent with the court’s position on finality.
Schuurman v. Motor Vessel Betty K V, 798 F.2d 442 (11th Cir. 1986) (per curiam)	Order allowing time to amend is not final until that time expires.	Supports the requirement of a definitive terminal date for appealability.

Court's Reasoning and Analysis

The court's analysis centers on the principle that an order granting leave to amend is interlocutory and not a final judgment, thus depriving the appellate court of jurisdiction to hear an appeal. The court noted that WMX did not amend its complaint, nor did it inform the district court of an intent to stand on the complaint, and no final order of dismissal was entered. The court relied heavily on the Supreme Court's decision in Jung v. K. D. Mining Co., Inc., which held that a dismissal with leave to amend does not constitute a final judgment and that finality requires a definitive order ending the case. The court reaffirmed its prior precedents, including Proud and Lopez, which emphasize that an appeal cannot proceed without a final judgment or a written notice of intent not to amend, followed by a final dismissal order. The court also recognized some conflicting language in prior Ninth Circuit cases but expressly overruled any contrary holdings, emphasizing the need for a final district court determination before appeal. The court acknowledged varying approaches among other circuits but concluded that its reaffirmed rule is clearer and more consistent with federal procedural principles. Ultimately, WMX's failure to amend or obtain a final dismissal deprived the court of appellate jurisdiction.

Holding and Implications

DISMISSED for lack of jurisdiction.

The court held that an appeal cannot be taken from a district court order that dismisses claims with leave to amend without a final judgment or a clear indication that the plaintiff will not amend and a subsequent final dismissal order. Because WMX did not amend its complaint, nor obtained a final dismissal order, the appellate court lacked jurisdiction to hear the appeal. The direct effect is dismissal of the appeal. The opinion does not establish new substantive precedent but clarifies and reaffirms the procedural requirement for finality in appeals from dismissals with leave to amend.

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WMX TECHNOLOGIES, INC., f/k/a WASTE MANAGEMENT, INC., a Delaware corporation, and WASTE MANAGEMENT OF CALIFORNIA, INC., a California corporation, Plaintiffs-Appellants, v. EDWIN L. MILLER, JR., as District Attorney of San Diego County, California, Defendant-Appellee.

OPINION

FERNANDEZ, Circuit Judge:

WMX Technologies, Inc. brought this action against Edwin L. Miller, the District Attorney of San Diego County, California, after Miller issued a report which was unfavorable to WMX. The district court dismissed WMX's claims, but gave leave to amend certain ones. WMX did not amend, did not tell the district court that it would not do so, and did not obtain a final order of dismissal. It simply appealed.

We considered the serious substantive issues raised by the appeal and affirmed. See WMX Technologies, Inc. v. Miller, 80 F.3d 1315 (9th Cir. 1996). We then agreed to hear the case en banc, but upon reflection we have determined that we have no jurisdiction over this appeal because there is no final judgment. Thus, we dismiss for lack of jurisdiction.

BACKGROUND

While the substantive facts of this case and the substantive legal issues are interesting, they are not relevant to our decision. What is relevant is the procedural posture. When Miller filed his Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, the district court granted that motion and ruled as follows:

Plaintiffs' first, second and fifth claims for relief are dismissed with prejudice for failure to state a claim under the Constitution or laws of the United States upon which relief can be granted.

Plaintiffs' third and fourth claims for relief are dismissed without prejudice for failure to state a claim under the Constitution or laws of the United States upon which relief can be granted.

. . . .

Plaintiffs may further amend as to their third and fourth claims for relief. Any amended complaint shall be filed and served within thirty (30) days following the hearing date set forth above.

The court then followed that up with a "judgment" which read:

It is ORDERED and ADJUDGED plaintiffs' first, second and fifth claims are dismissed with prejudice. Plaintiffs' third and fourth claims are dismissed without prejudice. Plaintiffs may amend as to their third and fourth claims. Any amended complaint shall be filed and served within thirty days of May 17, 1993. WMX neither took advantage of the opportunity to amend nor told the district court it would not do so. Instead, on the thirtieth day it filed its notice of appeal, without obtaining a final judgment of dismissal from the district court.

DISCUSSION

Although the parties did not raise the question of our jurisdiction, we have raised it sua sponte, as we must. See MacKay v. Pfeil, 827 F.2d 540, 542-43 (9th Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 457-58 (9th Cir. 1983) (en banc). Having asked whether we do have jurisdiction, we answer the question "no." We do so on the basis of Supreme Court authority and because we agree with our prior cases, which so held.

At root our decision is informed by Jung v. K. D. Mining Co., Inc., 356 U.S. 335, 78 S.Ct. 764, 2 L. Ed. 2d 806 (1958), where the Supreme Court considered an issue which was quite similar to the one which now confronts us. There the district court had dismissed the complaint on May 10, 1955, and granted "`twenty days . . . within which to file an amended complaint.'" Id. at 336, 78 S.Ct. at 765. On May 27, 1955, the district court gave an extension of twenty more days to file an amended complaint. No amendment was filed within the allotted time. Instead of that, the plaintiffs waited about two years and then told the district court that they chose to stand on their complaint. Thereupon, the district court dismissed in an order entered March 25, 1957, and the plaintiffs appealed. The defendant moved to dismiss the appeal because, as it thought, the appeal came two years after the district court had issued its judgment. The Court of Appeals for the Seventh Circuit agreed. It held that "the order of May 27, 1955, became the District Court's final judgment in the case when petitioners failed to file an amended complaint within the 20 days thereby allowed for that purpose." Id. The Supreme Court emphatically disagreed with that reasoning. It said:

We think that the District Court's order of May 27, 1955, denying petitioners' motion to vacate the order of May 10, 1955, but granting further leave to petitioners to amend their complaint, did not constitute the final judgment in the case. It did not direct "that all relief be denied" but left the suit pending for further proceedings "either by amendment of the [complaint] or entry of final judgment."

Id. at 336-37, 78 S.Ct. at 765-66 (citation omitted). The Court further explained its reasoning when it stated:

Although to be sure nearly two years elapsed between the time petitioners were given leave to file an amended complaint and their motion of March 25, 1957, the defendants also did not, as they so easily could have done, nor did the District Court exercising power sua sponte over its own calendar, take any step to put a definitive end to the case and thereby fix an unequivocal terminal date for appealability. The undesirability of useless delays in litigation is more than offset by the hazards of confusion or misunderstanding as to the time for appeal.

Id. at 337, 78 S.Ct. at 766.

We have embraced that explication of the law. In Proud v. United States, 704 F.2d 1099 (9th Cir. 1983) (per curiam), the district court had dismissed the complaint "with leave to amend within 60 days." Id. at 1100. The plaintiffs appealed instead. We declared, "It is immaterial that plaintiffs decided not to amend. The district court was not advised of that decision and no final judgment was entered." Id. Thus, we dismissed the appeal.

We recently reemphasized that rule in Lopez v. City of Needles, 95 F.3d 20 (9th Cir. 1996). The district court had dismissed the complaint without prejudice, but with statements clearly contemplating that an amendment could be made. Lopez appealed instead. We cited Proud and explained that the fact that the plaintiff chose not to amend was irrelevant where some amendment was possible. We added:

Unless a plaintiff files in writing a notice of intent not to file an amended complaint, such dismissal order is not an appealable final decision. In a typical case, filing of such notice gives the district court an opportunity to reconsider, if appropriate, but more importantly, to enter an order dismissing the action, one that is clearly appealable.

Id. at 22. Again, we dismissed the appeal.

[1] We recognize that although Proud and Lopez speak with a good deal of clarity, dissonance has been introduced by some of our cases. We have, on occasion, stated that a plaintiff, whose complaint has been dismissed without prejudice, may elect to stand on his pleading. We have not then referred to the rule that a dismissal with leave to amend is not an appealable decision. See, e.g., Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468, 471 n. 3 (9th Cir. 1994); McGuckin v. Smith, 974 F.2d 1050, 1053 (9th Cir. 1992). We now specifically rule that a plaintiff, who has been given leave to amend, may not file a notice of appeal simply because he does not choose to file an amended complaint. A further district court determination must be obtained. To the extent that any of our cases may suggest a different rule, we now overrule them.

We recognize that the circuits have not been uniform in their approach to this issue. See (in circuit order) North Carolina Nat'l Bank v. Montilla, 600 F.2d 333, 334 (1st Cir. 1979) (per curiam) (order dismissing an action with leave to amend is interlocutory); Richards v. Dunne, 325 F.2d 155, 156 (1st Cir. 1963) (per curiam) (after an order dismissing claim with leave to amend, another order of final dismissal is required); Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990) (once deadline to amend has passed, the dismissal becomes final — date of finality not specifically stated); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 278 (3d Cir. 1992) (dismissal with leave to amend is not final, but can be made so if plaintiff specifically declares he will stand on his complaint); Anastasiadis v. S.S. Little John, 339 F.2d 538, 539-40 (5th Cir. 1965) (a dismissal with leave to amend is not a final appealable order); Azar v. Conley, 480 F.2d 220, 223 (6th Cir. 1973) (a dismissal without prejudice to filing an amended complaint is not a final order where some amendment is possible); Otis v. City of Chicago, 29 F.3d 1159, 1166-68 (7th Cir. 1994) (en banc) (finality springs into existence when the time for leave to amend expires — it is better to adhere to the federal rules, but not necessary and court suspects that parties will become more attentive); Tietz v. Local 10 of Int'l Ass'n of Bridge, Struct., Ornamental Iron Workers, 525 F.2d 688, 689 (8th Cir. 1975) (per curiam) (dismissal with leave to amend is not a final appealable order); Landmark Land Co. v. Buchanan, 874 F.2d 717, 720 (10th Cir. 1989) (dismissal of complaint with leave to amend is not appealable); Schuurman v. Motor Vessel Betty K V, 798 F.2d 442, 445 (11th Cir. 1986) (per curiam) (where time to amend is allowed, the order becomes final when that time expires). However, in our opinion the rule we reaffirm today is both easily applied and more consonant with the teachings of Jung. It requires only a modicum of diligence by the parties and the district court, avoids uncertainty, and provides for a final look before the arduous appellate process commences.

In the case at hand, the district court granted leave to amend. WMX did not choose to do so, and it did not obtain a final order of dismissal from the district court. We are, therefore, without jurisdiction.

We recognize that certain causes of action were dismissed without leave to amend. However, that is of no significance because leave to amend was granted as to others, and there was no Federal Rule of Civil Procedure 54(b) certification.

CONCLUSION

We are sometimes faced with construction difficulties when a complaint is simply dismissed without prejudice. Absent further explicit illumination from the district court, we may have to determine from the whole record whether it was contemplated that the dismissal was for lack of jurisdiction, whether further amendment was anticipated, whether the district court made it plain that there could be no further amendment, or whether it was contemplated that the whole action was dismissed on the merits. It would always be helpful if district courts made their intentions in that regard both plain and explicit.

[2] However, when a district court expressly grants leave to amend, it is plain that the order is not final. Something more is both anticipated and required. In that event, a further step must be taken to "fix an unequivocal terminal date for appealability," and to avoid "the hazards of confusion or misunderstanding as to the time for appeal." Jung, 356 U.S. at 337, 78 S.Ct. at 766. A final judgment must be obtained before the case becomes appealable.

DISMISSED for lack of jurisdiction.