Chad Barnes v. Kris Henry ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHAD BARRY BARNES, No. 21-17094
Plaintiff-Appellant, D.C. No.
1:13-cv-00002-ACK-WRP
v.
KRIS HENRY; ALOHA OCEAN MEMORANDUM*
EXCURSIONS LLC,
Defendants-Appellees,
and
KRIS HENRY, INC.; et al.,
Defendants.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted April 11, 2022**
San Francisco, California
Before: HAWKINS, R. NELSON, and FORREST, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Chad Barnes was injured when the vessel he was working on exploded.
Barnes has litigated various claims in admiralty against his employer at the time of
the injury, Sea Hawaii Rafting, LLC (SHR), and SHR’s sole member and owner,
Kris Henry. This appeal concerns the district court’s denial of Barnes’s motion to
compel the transfer of a commercial-use permit, return the permit to him through
replevin, and order an injunction barring Henry, or his new company, from using the
permit. The district court concluded that it lacked jurisdiction to decide Barnes’s
motion because it raised “the same fundamental issues” that were pending on appeal
in this Court. Barnes timely appealed and contends that interlocutory jurisdiction
exists under 28 U.S.C. § 1292(a)(3). We disagree and dismiss for lack of jurisdiction.
Section 1292(a)(3) provides jurisdiction to review interlocutory orders that
decide “rights and liabilities” that “are substantive in nature,” such that they decide
“the merits of the controversies between [the parties],” not those that are “adjective,
tactical, or procedural.” Rogers v. Alaska S.S. Co., 249 F.2d 646, 649 (9th Cir. 1957)
(citation omitted). In determining whether a ruling decides the merits of a
controversy, we consider the “financial realities,” All Alaskan Seafoods, Inc. v. M/V
Sea Producer, 882 F.2d 425, 428 (9th Cir. 1989), as well as other “practical
matter[s],” Kesselring v. F/T Arctic Hero, 30 F.3d 1123, 1125 (9th Cir. 1994). We
construe § 1292(a)(3) “narrowly” because it is an exception to the final judgment
rule. Sw. Marine Inc. v. Danzig, 217 F.3d 1128, 1136 (9th Cir. 2000). The district
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court’s order denying Barnes’s motion on jurisdictional grounds neither defined his
rights or liabilities, nor addressed the merits of his case. Rogers, 249 F.2d at 649.
Thus, we lack interlocutory jurisdiction over the order that Barnes appealed.1
DISMISSED.
1
Barnes argues that the district court erred in finding that he agreed to allow
Henry to retain and use the commercial-use permit “in perpetuity.” This issue is
unrelated to the order appealed here and is beyond the scope of this appeal. See Swint
v. Chambers Cnty. Comm’n, 514 U.S. 35, 50 (1995) (recognizing that the scope of
interlocutory jurisdiction is generally limited to the “precise decision independently
subject to appeal”). Barnes also argues that this appeal should be consolidated or
joined with one of his other appeals. We have already decided the case that he seeks
to consolidate or join with this appeal. See Barnes v. Henry, No. 21-16120, 2022
WL 501122 (9th Cir. Feb. 18, 2022). Therefore, this argument is moot.
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