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Lincoln v. Rowland

*fn* submitted: December 6, 1993.

RICKY LEE LINCOLN, AKA RICHARD LEE LINCOLN; SHELLEY DIANN LINCOLN, PLAINTIFFS-APPELLANTS,
v.
JAMES ROWLAND; ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California. D.C. No. CV-91-01640-EJG. Edward J. Garcia, District Judge, Presiding

Before: Sneed, Noonan, and Trott, Circuit Judges.

MEMORANDUM

Ricky Lee Lincoln and Shelley Diann Lincoln appeal pro se the district court's order dismissing this action against certain defendants and dismissing certain plaintiffs. We conclude that we lack jurisdiction, and dismiss the appeal.

A district court order dismissing some but not all of the defendants is not a "final decision" appealable under 28 U.S.C. § 1291. McGuckin v. Smith, 974 F.2d 1050, 1053 n.1 (9th Cir. 1992); Patchick v. Kensington Publishing Corp., 743 F.2d 675, 677 (9th Cir. 1984) (per curiam). Nevertheless, upon an express determination that there is no just reason for delay and upon an express instruction for the entry of judgment, the district court may direct the entry of a final judgment as to one or more but fewer that all of the claims. Fed. R. Civ. P. 54(b); Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir. 1985). Without a Rule 54(b) certification, orders dismissing some but not all of the defendants or claims are not final. Fed. R. Civ. P. 54(b); Frank Briscoe Co., 776 F.2d at 1416.

Here, on 4 March 1992, the district court dismissed the action against defendants Rowland, Hubbard, Cram, Keller, and Camasural; however, the district court allowed the Lincolns to serve defendants Ylst, Corioso, Le, Chavez, Moser, Lopez, Sychokuk, Rosenthal, Jessup, Newton, and Sylvia. Thus, the district court's 4 March 1992 order is not a "final decision" appealable under 28 U.S.C. § 1291. See McGuckin, 974 F.2d at 1053 n.1. Moreover, because the district court has not issued a Rule 54(b) certification, the order is not appealable. See Frank Briscoe Co., 776 F.2d at 1416.

Accordingly, this appeal is premature and is dismissed for lack of jurisdiction.

DISMISSED.

Disposition

DISMISSE ...


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