                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 24 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FRANCIE E. MOELLER; EDWARD                       No. 12-17144
MUEGGE; KATHERINE CORBETT;
CRAIG THOMAS YATES,                              D.C. No. 4:02-cv-05849-PJH

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
  v.

TACO BELL CORP.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                       Argued and Submitted June 13, 2013
                            San Francisco, California

Before: O’SCANNLAIN and M. SMITH, Circuit Judges, and ANELLO, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      Plaintiffs-Appellants (Plaintiffs) attempt to appeal two orders of the district

court. One order amended the findings of facts and conclusions of law the court

had issued after the first phase of a bifurcated trial regarding an exemplar Taco

Bell restaurant. The second modified the court’s case management plan. Both

stated that the district court would defer any decision concerning whether it would

grant any form of injunctive relief. Plaintiffs assert that we have jurisdiction to

review the referenced orders pursuant to 28 U.S.C. § 1292(a)(1), which gives us

jurisdiction to review “orders of the district courts of the United States . . .

granting, continuing, modifying, refusing or dissolving injunctions.” We disagree,

and dismiss for lack of jurisdiction.

      The district court’s decision to defer judgment on the merits of a permanent

injunction is not an express refusal to enter an injunction. See Paige v. California,

102 F.3d 1035, 1038 (9th Cir. 1996) (explaining that orders that fall “squarely

within the scope of § 1292(a)(1)” are appealable as a matter of right). Nor have

plaintiffs satisfied the Supreme Court’s “practical effect” test by demonstrating that

the orders have “serious, perhaps irreparable consequences that petitioners can

effectually challenge only by an immediate appeal.” Carson v. Am. Brands, Inc.,

450 U.S. 79, 90 (1981) (internal quotation marks omitted); see also Oregon

Natural Res. Council, Inc. v. Kantor, 99 F.3d 334, 337 (9th Cir. 1996). In the ten

year span of this litigation, plaintiffs have never sought any form of preliminary
injunctive relief. Therefore, in this case, as was true in the Supreme Court’s

decision in Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., 385

U.S. 23 (1966), “not only [is] the [district] court free to grant the requested

injunctive relief in full after conducting [full proceedings] on the merits, but it [is]

also not precluded from granting a motion for preliminary injunction during the

pendency of the litigation if petitioners were to allege that further delay would

cause them irreparable harm.” Carson, 450 U.S. at 85 n.10 (describing the Court’s

reasoning in Switzerland Cheese).

      DISMISSED.
