NOT FOR PUBLICATION
D.C. No. 3:11-cv-00530-JLS-MDD MEMORANDUM Appeal from the United States District Court for the Southern District of California
Janis L. Sammartino, District Judge, Presiding Submission Deferred December 7, 2017Resubmitted January 29, 2018 Pasadena, California Before: REINHARDT and NGUYEN, Circuit Judges, and BLOCK, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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 Frederic Block, United States Senior District Judge for the Eastern District of New York, sitting by designation. --------
Dianna Montez seeks review of the district court's order dismissing her Second Amended Complaint with leave to amend. However, we lack jurisdiction to review that order because it was not a final decision that ended the litigation on the merits. See 28 U.S.C. § 1291; Lovell v. Chandler, 303 F.3d 1039, 1047 (9th Cir. 2002). Moreover, the order did not merge into the district court's final order dismissing for failure to prosecute. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996) (holding that dismissal for failure to prosecute "forfeits a litigant's right to appeal interlocutory orders prior to judgment"). We therefore decline to consider Montez's challenge to the district court's dismissal with leave to amend.
Although we have jurisdiction to review the dismissal for failure to prosecute, Montez has forfeited any challenge to it. See Sharemaster v. SEC, 847 F.3d 1059, 1070 (9th Cir. 2017) ("Ordinarily, we will not consider 'matters on appeal that are not specifically and distinctly argued in appellant's opening brief.'" (quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992))).
We have carefully considered Montez's remaining arguments, including her claim of judicial bias, and hold that they are without merit.