Morris Wilner v. Ford Motor Company

FILED
NOT FOR PUBLICATION
MAR 14 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MORRIS WILNER, No. 20-56400
Plaintiff-Appellant, D.C. No.
8:20-cv-01688-CJC-DFM
v.
FORD MOTOR COMPANY, a MEMORANDUM*
corporation,
Defendant-Appellee,
and
HUNTINGTON BEACH FORD, a
business entity, form unknown; DOES, 1
through 50, inclusive,
Defendants.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted March 8, 2022**
Pasadena, California
*
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).
Before: IKUTA, LEE, and FORREST, Circuit Judges.
Morris Wilner appeals the district court’s denial of his ex parte application
to vacate an order dismissing Wilner’s claims without prejudice.
We lack jurisdiction to hear Wilner’s appeal because the district court’s
November 25, 2020 order denying Wilner’s ex parte application was not a final
order.1 First, the November 25, 2020 order left multiple issues unresolved,
including a determination of the reasonable attorney’s fees that Wilner is owed,
and a resolution of the dispute over the interpretation of Ford’s agreement in the
Rule 68 offer of judgment to pay Wilner $42,359.79. Second, the order stated that
Wilner could “file a regularly-noticed motion seeking whatever additional relief he
contends is appropriate,” thereby indicating that the district court contemplated
further action in the case. See Elliott v. White Mountain Apache Tribal Ct., 566
F.3d 842, 846 (9th Cir. 2009); Way v. Cnty. of Ventura, 348 F.3d 808, 810 (9th Cir.
2003).
We reject Wilner’s argument that the district court’s October 6, 2020 order,
which dismissed Wilner’s claims without prejudice and retained jurisdiction for
thirty days, became final once the district court denied Wilner’s ex parte
1
We have jurisdiction to determine whether we have jurisdiction to hear the
case. See Atl. Nat’l Tr. LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 933 (9th Cir.
2010).
2
application for an order to vacate the dismissal and enter judgment. Because the
district court’s November 25, 2020 order expressly invited additional motion
practice, it rendered any prior dismissal order non-final. See Nat’l Distrib. Agency
v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997); Montes v. United
States, 37 F.3d 1347, 1351 (9th Cir. 1994).
We also reject Wilner’s argument that the “pragmatic finality” doctrine
applies. Wilner failed to explain why each of the four requirements for applying
that doctrine are satisfied here, and nothing in the record indicates that Wilner’s
case presents an issue of national significance. See Way, 348 F.3d at 811.
DISMISSED.
3