Floyd Morrow v. City of San Diego

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 09 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FLOYD L. MORROW and MARLENE No. 14-55001
MORROW, individually and on behalf of
those similarly situated, D.C. No. 3:11-cv-01497-GPC-
KSC
Plaintiffs - Appellants,
v. MEMORANDUM*
CITY OF SAN DIEGO, a charter city; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted February 5, 2016**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: CALLAHAN and N.R. SMITH, Circuit Judges and RAKOFF,*** Senior
District Judge.
Floyd L. and Marlene Morrow appeal from the district court’s December 4,
2013 order denying their motions to file an amended complaint and substitute Doe
defendants in their 42 U.S.C. § 1983 action alleging that defendants violated the
Morrows’ equal protection rights by citing them for land use violations on their
property. We grant the City of San Diego’s motion to dismiss the appeal for lack
of appellate jurisdiction.
The December 4, 2013 order is not an appealable final decision because it
did not end the litigation on the merits or “clearly evidence[] the judge’s intention
that it be the court’s final act in the matter.” Nat’l Distribution Agency v.
Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997) (quoting Slimick v.
Silva (In re Slimick), 928 F.2d 304, 307 (9th Cir. 1990)); see also 28 U.S.C. § 1291
(“The courts of appeals . . . shall have jurisdiction of appeals from all final
decisions of the district courts of the United States . . . .”). The Morrows contend
that the order nonetheless is appealable because it was based on
Pullman abstention. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496
(1941); Confederated Salish v. Simonich, 29 F.3d 1398, 1407 (9th Cir. 1994)
***
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
2
(holding that a decision granting Pullman abstention is an appealable order). The
December 4, 2013 order, however, did not grant Pullman abstention; rather, the
district court granted abstention in an earlier order, from which the Morrows did
not timely appeal. We therefore lack jurisdiction to hear this appeal.
DISMISSED.
3