919 F2d 144 Cello-Whitney v. E Curry

919 F.2d 144

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

James CELLO-WHITNEY, Jr., Plaintiff-Appellant,
Richard E. CURRY, et al., Defendants-Appellees.

No. 89-35801.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.*
Decided Nov. 29, 1990.

Before WALLACE, DAVID R. THOMPSON and TROTT, Circuit Judges.

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James Cello-Whitney, Jr., a Washington state prisoner, appeals pro se the district court's order (1) dismissing two defendants from this 42 U.S.C. Sec. 1983 action for failure to effect proper service of process, and (2) imposing sanctions under Fed.R.Civ.P. 11 for filing pleadings in bad faith and engaging in a persistent pattern of abusive litigation activity. We dismiss this appeal for lack of jurisdiction.


Pursuant to 28 U.S.C. Sec. 1291, this court has jurisdiction over appeals from final orders of the district court. Absent certification under Fed.R.Civ.P. 54(b), the dismissal of some parties where the action is not ended as to other parties does not constitute a final appealable order. Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 554 (9th Cir.1986), cert. denied, 484 U.S. 822 (1987); Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985). Here, the district court dismissed the Arizona defendants, Kohl and Lewis, two of the ten defendants in the action. Certification under Fed.R.Civ.P. 54(b) was neither sought by Cello-Whitney nor granted by the district court. Therefore, because the action has not ended as to the eight Washington defendants, the order dismissing Kohl and Lewis is not a final appealable order.


Moreover, sanction orders are generally deemed interlocutory and cannot be appealed by parties until a final judgment has been rendered in the action. Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1425 (9th Cir.1985); Kordich v. Marine Clerks Ass'n, 715 F.2d 1392, 1393 (9th Cir.1983); Johnny Pflocks, Inc. v. Firestone Tire & Rubber Co., 634 F.2d 1215, 1216 (9th Cir.1980). Therefore, the district court's order imposing sanctions on Cello-Whitney pursuant to Fed.R.Civ.P. 11 is not a final appealable order.1




The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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Because the sanction order is reviewable on appeal from a final judgment, it is not appealable now under the collateral order doctrine. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)