951 F. 2d 360 - Krain v. Wagner

MEMORANDUM**

Lawrence C. Krain appeals pro se the district court's orders (1) dismissing his claims against fourteen defendants for failure of proof of service, and (2) dismissing his claims against defendant Kagen for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). We dismiss this appeal for lack of appellate jurisdiction.

We raise sua sponte the issue of our jurisdiction to hear this appeal. See Abernathy v. Southern Cal. Edison, 885 F.2d 525, 527 (9th Cir.1989). Pursuant to 28 U.S.C. § 1291, this court has jurisdiction over appeals from final orders of the district court. A district court order which dismisses an action as to only some of the defendants is not a final order pursuant to 28 U.S.C. § 1291. Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548, 554 (9th Cir.1986), cert. denied, 484 U.S. 822 and 484 U.S. 823 (1987); Anderson v. Allstate Ins. Co., 630 F.2d 677, 680 (9th Cir.1980). Such an order is not appealable without district court certification pursuant to Fed.R.Civ.P. 54(b). Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985). Nevertheless, an order which disposes of only some of the claims may be treated as final if the remaining claims have subsequently been finalized. Unioil, 809 F.2d at 554.

Here, Krain initially filed his action against 44 defendants. On September 21, 1990, the district court entered an order dismissing Krain's action against 13 defendants1 for failure of proof of service. Krain filed a notice of appeal from that order on October 9, 1990. On October 9, 1990, the district court dismissed Krain's claims against Kagen for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Krain filed an amended notice of appeal from both orders on October 17, 1990. Subsequently, the district court issued orders dismissing Krain's claims against 15 of the remaining defendants.2 Krain's claims against the other 15 defendants remain to be decided.3

The district court orders of September 25 and October 9, 1990 are not final appealable orders because they did not dispose of all claims against all parties. See Unioil, 809 F.2d at 554. Further, the district court's subsequent orders of dismissal did not serve to finalize the previous orders because the entire action was not terminated. See id. Accordingly, we dismiss this appeal for lack of appellate jurisdiction.

DISMISSED.