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Merten v. City of Los Angeles

*fn* submitted: August 11, 1993.

RALPH MERTEN, PLAINTIFF-APPELLANT,
v.
CITY OF LOS ANGELES, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-92-03732-KN(GH. David V. Kenyon, District Judge, Presiding

Before: Pregerson, Brunetti and Rymer, Circuit Judges.

MEMORANDUM

Ralph Merten appeals pro se the district court's dismissal with prejudice of his action pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and pendent state law claims against the City of Los Angeles (City). The government argues that, because Merten moved to voluntarily dismiss his action with prejudice, we lack jurisdiction over this appeal. We agree and dismiss the appeal.

Merten contends the district court erred by dismissing his original complaint instead of staying the lawsuit and dismissing three new ADEA claims in his amended complaint. This contention lacks merit.

"A plaintiff may not appeal a voluntary dismissal because it is not an involuntary adverse judgment against him." Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (9th Cir. 1986) (order); accord Plasterers Local U. No. 346 v. Wyland Enterprises, Inc., 819 F.2d 217, 218 (9th Cir. 1987).

On June 23, 1992, Merten filed his original complaint alleging violations of the ADEA and pendent state claims before the statutory sixty-day period had passed from the filing of Merten's charges with the Equal Employment Opportunity Commission. On September 25, 1992, when the sixty-day statutory period had passed, Merten filed an amended complaint re-alleging his original ADEA claim and adding three new claims under the ADEA, and four new claims under 42 U.S.C. § 1983. The district court dismissed the original complaint for lack of subject matter jurisdiction on October 2, 1992 and dismissed the three new ADEA claims on November 19, 1992. Nonetheless, Merten was allowed to proceed on his initial ADEA claim and was granted leave to amend his section 1983 claims.

Merten filed two notices of appeal from the two dismissal orders of the district court. On December 18, 1992, Merten filed a motion to dismiss the action "for the sole purpose of obtaining prompt appellate review." The district court granted Merten's motion to voluntarily dismiss his action with prejudice.

Because Merten moved to voluntarily dismiss the action with prejudice, we lack jurisdiction over this appeal.*fn1 See Seidman, 785 F.2d at 1448.

DISMISSED.

Disposition

DISMISSE ...


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