                                                                           FILED
                           NOT FOR PUBLICATION                             APR 15 2014

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



                            FOR THE NINTH CIRCUIT


ARISTEO CANELOS AVILA, an                        No. 12-56938
individual,
                                                 D.C. No. 3:11-cv-02863-AJB-KSC
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

CHIQUITA FRESH NORTH AMERICA,
LLC, a Delaware limited liability company
and successor in interest to Chiquita
Frupac, Inc.; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                     Argued and Submitted February 12, 2014
                              Pasadena, California

Before: PAEZ and NGUYEN, Circuit Judges, and MOTZ, Senior District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
      Plaintiff Aristeo Canelos Avila (“Avila”) appeals the district court’s order

granting Defendant Aristeo Alejandro Canelos Guillen’s (“Guillen”) motion to

dismiss for failure to state a claim and forum non conveniens, and denying Avila’s

motion for leave to amend. In denying Avila leave to amend, the district court

determined that, even if Avila’s proposed revisions were successful in curing the

deficiencies in the original complaint, the court would decline to exercise

jurisdiction under the Declaratory Judgment Act. See Brillhart v. Excess Ins. Co.

of Am., 316 U.S. 491, 494, 62 S. Ct. 1173, 1175, 86 L. Ed. 1620 (1942).

      We construe the district court’s ruling as a dismissal under Brillhart, and

conclude that the court properly exercised its discretion in dismissing on this

ground. Applying the Brillhart factors, the district court determined that it should

not assert jurisdiction over Avila’s declaratory relief claim because, “[a]t the time

that [Avila] filed this Complaint, there was a proceeding pending in

Mexico—which is still pending—discussing issues relating directly to this

Complaint and involving essentially the same parties.” Moreover, “adjudication of

Plaintiff’s declaratory action could result in duplicative litigation and lead to

inconsistent rulings by this Court and the Mexican court.”

      In light of these circumstances, we conclude that the district court did not

abuse its discretion in declining to entertain Avila’s claim for declaratory relief.


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We further conclude that, given the interrelated nature of Avila’s accounting and

equitable indemnity claims and the declaratory relief claim, and the fact that he

was willing to dismiss the former two claims in his amended complaint, Avila’s

accounting and equitable indemnity claims were properly dismissed as well.

      The district court did, however, err in dismissing Avila’s action “with

prejudice.” The phrase “dismissal with prejudice” is “synonymous” with “[f]inal

judgment on the merits.” Hells Canyon Pres. Council v. U.S. Forest Serv., 403

F.3d 683, 686 (9th Cir. 2005). Here, the district court clearly did not intend to

finally decide the merits. Instead, it contemplated that Avila would litigate his

claims in Mexico. We remand to the district court with directions to correct the

dismissal order to reflect that dismissal of the complaint is “without prejudice.”

      In light of the foregoing, we need not resolve whether the district court erred

in granting Guillen’s motion to dismiss for failure to state a claim and forum non

conveniens.

      AFFIRMED in part and REMANDED with instructions.




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