Jeffrey Herson v. City of Reno ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JEFFREY R. HERSON, No. 11-17172
Plaintiff - Appellant, D.C. No. 3:11-cv-00403-LRH-
VPC
v.
CITY OF RENO, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted October 8, 2014
San Francisco, California
Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.
Jeffrey Herson appeals the district court’s order of August 12, 2011 (the
“Order”) dismissing his claims for lack of standing. We dismiss the appeal for lack
of jurisdiction.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
This court’s jurisdiction is limited to final decisions of the district court. 28
U.S.C. § 1291. “Final decisions end the litigation on the merits and leave nothing
for the court to do but execute the judgment.” Am. States Ins. Co. v. Dastar Corp.,
318 F.3d 881, 884 (9th Cir. 2003) (internal quotation marks and alterations
omitted). “The final judgment rule promotes judicial efficiency, avoids multiplicity
of litigation and minimizes delay by forbidding piecemeal disposition on appeal of
what for practical purposes is a single controversy.” Id. (internal quotation marks
and alterations omitted).
“[A]n order granting a motion to dismiss, standing alone, may not be
appealable. In these cases, we have looked beyond the dismissal order and read the
entire record to determine what effect the court intended its order to have.” Nat'l
Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433-34 (9th Cir. 1997)
(citation omitted). Specifically, “[e]vidence of intent consists of the Order's
content and the judge’s and parties [sic] conduct.” In re Slimick, 928 F.2d 304,
308 (9th Cir. 1990). This court also looks at whether a plaintiff "elects to stand on
the dismissed complaint" when determining whether an order granting a motion to
dismiss without prejudice is "final and appealable." Lopez v. City of Needles, 95
F.3d 20, 22 (9th Cir. 1996) (internal quotation marks omitted).
2
In the present case, the court’s Order dismissed Herson’s challenge to the
City of Reno’s sign ordinances without prejudice, thereby allowing Herson to
amend his complaint. Thereafter, Herson filed a “new” complaint in the same
court and against the same defendant. See Herson v. City of Reno and State of
Nevada, Case No. 3:11cv-00633-ECR-WGC. The complaint revived every single
claim Herson had made against the City of Reno’s sign ordinances in his first
complaint. The only differences between the first complaint and the second
complaint were that 1) the second complaint also reflected events that had occurred
since the filing of Herson’s first complaint; 2) Herson joined the State of Nevada to
one of his claims;1 and 3) Herson introduced an equal protection claim.
Challenging the “new” complaint, the City alleged that the “First and Second
Lawsuits are the same.” Thus, looking beyond the dismissal Order, the record
indicates that the Order was not perceived as final because Herson did not stand
upon his original complaint. To avoid piecemeal litigation, the panel holds that the
Order was not an appealable final judgment. Therefore, this court lacks
jurisdiction.
DISMISSED.
1
Herson later voluntarily dismissed the State of Nevada from the suit.
3