Gerald Erickson v. Pnc Mortgage

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GERALD ERICKSON; DONNA No. 12-16802
ERICKSON,
D.C. No. 3:10-cv-00678-LRH-
Plaintiffs - Appellants, VPC
v.
MEMORANDUM*
PNC MORTGAGE, a division of PNC
Bank, N.A., successor in interest by
merger to National City Bank of Indiana;
MCT FINANCIAL, INC., DBA Trustee
Corps; FEDERAL HOME LOAN
MORTGAGE CORPORATION,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted October 10, 2014**
San Francisco, California
Before: CANBY, W. FLETCHER, and WATFORD, Circuit Judges.
*
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).
Appellants Gerald and Donna Erickson initiated this litigation after losing
their home through non-judicial foreclosure proceedings. They appeal from the
district court’s order dismissing their action without prejudice for failure to
prosecute. On appeal, the Ericksons challenge various aspects of the district
court’s interlocutory orders, but they do not challenge the dismissal for failure to
prosecute.
Ordinarily, a district court’s interlocutory orders are reviewable after a final
judgment is issued because they are deemed to merge into the judgment. Am.
Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 897–98 (9th
Cir. 2001). There is an exception to this general rule, however. “[I]nterlocutory
rulings do not merge into a judgment of dismissal without prejudice for failure to
prosecute whether the failure to prosecute is purposeful or is a result of negligence
or mistake.” Ash v. Cvetkov, 739 F.2d 493, 498 (9th Cir. 1984). As we explained
in Ash, important policy considerations underlie application of this exception: “the
sufferance of dismissal without prejudice because of failure to prosecute is not to
be employed as an avenue for reaching issues which are not subject to
interlocutory appeal as of right.” Id. (citing Hughley v. Eaton Corp., 572 F.2d 556
(6th Cir. 1978)); accord Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996)
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(“There is no good reason to allow plaintiff to revive his case in the appellate court
after letting it die in the trial court.”).
Here, the Ericksons do not challenge the factual basis for, or propriety of,
the district court’s dismissal without prejudice for failure to prosecute.
Additionally, neither before the district court nor before this Court have they made
a showing of good cause for their failure to prosecute after receiving unfavorable
interlocutory rulings from the district court. Al-Torki, 78 F.3d at 1386 (“ If [a
plaintiff] had a good excuse for the failure to prosecute, that would revive the case,
including the appealability of interlocutory orders, but he would first have to
establish that good excuse, either in the district court or on appeal.”). We therefore
uphold the district court’s unchallenged dismissal for failure to prosecute and,
because the merger doctrine does not apply, we decline to reach on appeal the
issues presented by the district court’s interlocutory orders.
In their reply brief, the Ericksons invite this court to construe the district
court’s order of dismissal as a voluntary dismissal with prejudice, as we did in
Omstead v. Dell, Inc., 594 F.3d 1081 (9th Cir. 2010). We decline to do so because
Omstead is distinguishable. Here, the Ericksons proffer neither evidence nor
argument to support a conclusion that the district court abused its discretion in
dismissing their action for failure to prosecute. Similarly, they point to no record
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evidence of conduct evincing a desire for voluntary dismissal with prejudice to
facilitate appellate review of the district court’s interlocutory rulings. See id. at
1084–85 (explaining that the plaintiffs communicated to the district court their
belief that the interlocutory ruling was fatal to their action and their desire for an
order that would permit appellate review of that issue). The Ericksons’ inaction
following the district court’s unfavorable interlocutory rulings is precisely the
conduct discouraged in Ash. 739 F.2d at 497.
The dismissal of the action without prejudice for failure to prosecute is
AFFIRMED.
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