849 F. 2d 1475 - International Association of Machinists and Aerospace Workers v. Regal Auto Body Shop Inc

MEMORANDUM*

Regal Auto Body appeals from the order of the district court denying its motion for summary judgment and remanding an arbitration award to the arbitrator for clarification. We dismiss for want of jurisdiction.

Appellees filed a petition in California Superior Court to confirm the arbitration decision of Arbitrator Joe H. Henderson. Appellant Regal Auto Body removed the action to district court and filed a counterclaim to vacate the decision. Each party moved for summary judgment. The district court then issued an order denying Regal Auto Body's motion for summary judgment and remanding the matter to the arbitrator for clarification of his decision. Regal then brought this appeal.

Both parties claim that we have jurisdiction under 28 U.S.C. Sec. 1291. Section 1291 provides jurisdiction over all "final decisions" of the district courts. We hold that neither aspect of the district court's order is a final decision within the meaning of section 1291.

It is well-established that the denial of a motion for summary judgment is an interlocutory order which is not appealable. White by White v. Pierce County, 797 F.2d 812, 814 (9th Cir.1986); Kraus v. County of Pierce, 793 F.2d 1105, 1107-08 (9th Cir.1986), cert. denied, 107 S.Ct. 1571 (1987).1

Likewise, remand orders normally are not appealable under section 1291. Eluska v. Andrus, 587 F.2d 996, 999 (9th Cir.1978); see In re Martinez, 721 F.2d 262, 265 (9th Cir.1983). To determine whether the remand order is "final", we must determine whether it is equivalent to an order of dismissal. Eluska, 587 F.2d at 999.

It is clear that the district court remanded the matter to the arbitrator for clarification because the court did not want to confirm or vacate the decision unless it fully understood what the arbitrator meant. The court merely deferred ruling on the merits. This is not a final decision.

APPEAL DISMISSED.