Fred Kenneth Macdonald v. United States of America;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED KENNETH MACDONALD,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA; et al.,
Defendants - Appellees.
No. 12-55949
D.C. No. 3:11-cv-01088-IEG-KSC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Argued and Submitted February 7, 2014
Pasadena, California
Before: PREGERSON, MURPHY**, and BERZON, Circuit Judges.
Appellant Fred Kenneth MacDonald voluntarily dismissed his case without
prejudice after the district court dismissed some of his claims based on motions of
the government and the individual defendants. On appeal, he seeks review of the
FILED
JUN 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.

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district court’s orders regarding those motions to dismiss. We lack jurisdiction
over his appeal.
“Under the final judgment rule embodied in 28 U.S.C. § 1291, the courts of
appeal have jurisdiction over ‘appeals from all final decisions of the district courts
of the United States.’” Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010).
In general, “[a] district court order is . . . not appealable unless it disposes of all
claims as to all parties or unless judgment is entered in compliance with Federal
Rule of Civil Procedure 54(b).” Romoland Sch. Dist. v. Inland Empire Energy
Ctr., 548 F.3d 738, 747 (9th Cir. 2008). And a “voluntary dismissal without
prejudice is ordinarily not a final judgment from which the plaintiff may appeal.”
Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995) (emphasis omitted).
We have recognized two exceptions to this general rule. See James v. Price
Stern Sloan, Inc., 283 F.3d 1064, 1066-69 (9th Cir. 2002); Romoland, 548 F.3d at
750-51. MacDonald’s appeal falls into neither one.
1. Under the first exception, in certain limited circumstances we may review
a judgment entered by a district court after “a party that has suffered an adverse
partial judgment subsequently dismisses remaining claims without prejudice.”
James, 283 F.3d at 1070. The James exception is not available here, for a number
of reasons.
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First, MacDonald did not dismiss only the “remaining claims” that survived
the district court’s orders; instead, he explicitly sought dismissal of his entire case.
Cf. id. at 1065. Second, in James, the appellant sought an appealable judgment,
and the district court entered a “final judgment” on the claims on appeal, intending
to grant a final, appealable judgment. Id. at 1068. That the district court made that
determination demonstrated that it deemed “its adjudication of those claims was
ripe for review,” basically the functional equivalent of a partial judgment under
Rule 54(b). Id. at 1068-69. No such determination was made here, and no
judgment was entered. Instead, the district court believed that the claims were not
ripe for review, and denied MacDonald’s request for certification of an
interlocutory appeal under 28 U.S.C. § 1292(b).
Further, in contrast to James, MacDonald’s actions provide evidence that he
sought to circumvent the district court’s gatekeeping roles under Federal Rule of
Civil Procedure 54(b) and § 1292(b) and thereby to manufacture appellate
jurisdiction improperly. Id. at 1066-69. MacDonald first made a §1292(b) motion,
and only voluntarily dismissed his entire case after it was denied. When doing so,
he did not make clear to the district court that he planned to appeal any portion of
the case. Instead, his request to dismiss the entire case communicated that he did
not intend to proceed with any of his claims. As a result, the district court’s
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decision to allow the voluntary dismissal “did not imply its intent to grant . . . a
final appealable judgment,” similar to the grant of a Rule 54(b) motion, unlike in
James. Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 888-89 (9th Cir. 2003)
(quoting James, 283 F.3d at 1068) (internal quotation marks omitted).
It was only immediately after the district court dismissed the case in its
entirety that MacDonald informed the court that he intended to “stand on the
Second Amended Complaint” and take an immediate appeal. At that point, having
already dismissed the case without prejudice, the district court could no longer
consider whether to issue a final appealable judgment, and did not. Moreover, it is
unlikely that the court would have issued any such judgment, in light of its denial
of the § 1292(b) request and the close relationship between the dismissed and
unadjudicated claims.
In short, unlike in James, MacDonald’s voluntary dismissal did not allow
the district court to exercise its discretion as to whether to grant the functional
equivalent of a partial judgment under Rule 54(b).
2. MacDonald’s appeal also does not fall into the second exception, which
permits us in limited circumstances to treat a dismissal without prejudice as one
with prejudice, where that designation is consistent with the clear, consistent intent
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of the court and the parties. See Romoland, 548 F.3d at 750; Concha, 62 F.3d at
1508-09.
Here, there was no clear, consistent intent that the voluntary dismissal be
with prejudice. After MacDonald requested dismissal, the government argued to
the district court that MacDonald should be required to pay its fees and costs if the
case were dismissed without prejudice, or alternatively the dismissal should be
with prejudice. The district court explicitly granted MacDonald’s request for
dismissal without prejudice over the government’s objection. So MacDonald had
reason to seek dismissal without prejudice, and the district court’s intent was to
grant that variety of dismissal.
In contrast, in Romoland, the plaintiffs sought dismissal of their claims
against one defendant, directly telling the district court it sought “final judgment
for purposes of appeal,” but the order of dismissal was silent as to whether the
dismissal was with prejudice. 548 F.3d at 740. And in Concha, both parties
understood that dismissal was sought in order to permit an appeal, which could
only be effectuated through a dismissal with prejudice. 62 F.3d at 1508-09.
Further, MacDonald’s behavior after the dismissal confirms that he had not
at the time of its entry intended the dismissal to be with prejudice, and that he
believed the remaining claims could be revived. Unlike in Romoland,
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MacDonald’s dismissal was not only of unadjudicated claims, but rather of the
entire case, including the Fifth Amendment claim for which he had successfully
opposed dismissal. After his successful defense of it, it would have seemed
unlikely that he intended to dismiss that claim with prejudice.
Further, on appeal, MacDonald continued to treat the Fifth Amendment
claim, which the district court had declined to dismiss, as part of his case. He
argued its merits in his appellate briefs. He also argued that the unserved
defendants should be maintained in the appeal. Although MacDonald suggested at
oral argument, once it became evident that the panel was concerned about its
jurisdiction, that he would now be willing to abandon the Fifth Amendment claim,
that turnabout came too late, given what had come before; the relevant issue is
whether the dismissal was with or without prejudice when approved by the district
court. In Romoland, in contrast, the appellants’ filings and oral representations
consistently showed the intent to dismiss with prejudice before the district court
and throughout the appeal, including at oral argument. 548 F.3d at 750.
Accordingly, we dismiss MacDonald’s appeal for lack of appellate
jurisdiction.
DISMISSED.
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