Opinion
No. 14-55001
02-09-2016
FLOYD L. MORROW and MARLENE MORROW, individually and on behalf of those similarly situated, Plaintiffs - Appellants, v. CITY OF SAN DIEGO, a charter city; et al., Defendants - Appellees.
NOT FOR PUBLICATION
D.C. No. 3:11-cv-01497-GPC-KSC MEMORANDUM Appeal from the United States District Court for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted February 5, 2016 Pasadena, California Before: CALLAHAN and N.R. SMITH, Circuit Judges and RAKOFF, Senior District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District Court for the Southern District of New York, sitting by designation.
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Floyd L. and Marlene Morrow appeal from the district court's December 4, 2013 order denying their motions to file an amended complaint and substitute Doe defendants in their 42 U.S.C. § 1983 action alleging that defendants violated the Morrows' equal protection rights by citing them for land use violations on their property. We grant the City of San Diego's motion to dismiss the appeal for lack of appellate jurisdiction.
The December 4, 2013 order is not an appealable final decision because it did not end the litigation on the merits or "clearly evidence[] the judge's intention that it be the court's final act in the matter." Nat'l Distribution Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir. 1997) (quoting Slimick v. Silva (In re Slimick), 928 F.2d 304, 307 (9th Cir. 1990)); see also 28 U.S.C. § 1291 ("The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . ."). The Morrows contend that the order nonetheless is appealable because it was based on Pullman abstention. See R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941); Confederated Salish v. Simonich, 29 F.3d 1398, 1407 (9th Cir. 1994) (holding that a decision granting Pullman abstention is an appealable order). The December 4, 2013 order, however, did not grant Pullman abstention; rather, the district court granted abstention in an earlier order, from which the Morrows did not timely appeal. We therefore lack jurisdiction to hear this appeal.
DISMISSED.