                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 10 2014

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



                            FOR THE NINTH CIRCUIT


FRED KENNETH MACDONALD,                          No. 12-55949

              Plaintiff - Appellant,             D.C. No. 3:11-cv-01088-IEG-KSC

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                 Irma E. Gonzalez, Senior District Judge, Presiding

                      Argued and Submitted February 7, 2014
                               Pasadena, California

Before: PREGERSON, MURPHY**, and BERZON, Circuit Judges.

       Appellant Fred Kenneth MacDonald voluntarily dismissed his case without

prejudice after the district court dismissed some of his claims based on motions of

the government and the individual defendants. On appeal, he seeks review of the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
district court’s orders regarding those motions to dismiss. We lack jurisdiction

over his appeal.

       “Under the final judgment rule embodied in 28 U.S.C. § 1291, the courts of

appeal have jurisdiction over ‘appeals from all final decisions of the district courts

of the United States.’” Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010).

In general, “[a] district court order is . . . not appealable unless it disposes of all

claims as to all parties or unless judgment is entered in compliance with Federal

Rule of Civil Procedure 54(b).” Romoland Sch. Dist. v. Inland Empire Energy

Ctr., 548 F.3d 738, 747 (9th Cir. 2008). And a “voluntary dismissal without

prejudice is ordinarily not a final judgment from which the plaintiff may appeal.”

Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995) (emphasis omitted).

       We have recognized two exceptions to this general rule. See James v. Price

Stern Sloan, Inc., 283 F.3d 1064, 1066-69 (9th Cir. 2002); Romoland, 548 F.3d at

750-51. MacDonald’s appeal falls into neither one.

       1. Under the first exception, in certain limited circumstances we may review

a judgment entered by a district court after “a party that has suffered an adverse

partial judgment subsequently dismisses remaining claims without prejudice.”

James, 283 F.3d at 1070. The James exception is not available here, for a number

of reasons.


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      First, MacDonald did not dismiss only the “remaining claims” that survived

the district court’s orders; instead, he explicitly sought dismissal of his entire case.

Cf. id. at 1065. Second, in James, the appellant sought an appealable judgment,

and the district court entered a “final judgment” on the claims on appeal, intending

to grant a final, appealable judgment. Id. at 1068. That the district court made that

determination demonstrated that it deemed “its adjudication of those claims was

ripe for review,” basically the functional equivalent of a partial judgment under

Rule 54(b). Id. at 1068-69. No such determination was made here, and no

judgment was entered. Instead, the district court believed that the claims were not

ripe for review, and denied MacDonald’s request for certification of an

interlocutory appeal under 28 U.S.C. § 1292(b).

      Further, in contrast to James, MacDonald’s actions provide evidence that he

sought to circumvent the district court’s gatekeeping roles under Federal Rule of

Civil Procedure 54(b) and § 1292(b) and thereby to manufacture appellate

jurisdiction improperly. Id. at 1066-69. MacDonald first made a §1292(b) motion,

and only voluntarily dismissed his entire case after it was denied. When doing so,

he did not make clear to the district court that he planned to appeal any portion of

the case. Instead, his request to dismiss the entire case communicated that he did

not intend to proceed with any of his claims. As a result, the district court’s


                                            3
decision to allow the voluntary dismissal “did not imply its intent to grant . . . a

final appealable judgment,” similar to the grant of a Rule 54(b) motion, unlike in

James. Am. States Ins. Co. v. Dastar Corp., 318 F.3d 881, 888-89 (9th Cir. 2003)

(quoting James, 283 F.3d at 1068) (internal quotation marks omitted).

      It was only immediately after the district court dismissed the case in its

entirety that MacDonald informed the court that he intended to “stand on the

Second Amended Complaint” and take an immediate appeal. At that point, having

already dismissed the case without prejudice, the district court could no longer

consider whether to issue a final appealable judgment, and did not. Moreover, it is

unlikely that the court would have issued any such judgment, in light of its denial

of the § 1292(b) request and the close relationship between the dismissed and

unadjudicated claims.

       In short, unlike in James, MacDonald’s voluntary dismissal did not allow

the district court to exercise its discretion as to whether to grant the functional

equivalent of a partial judgment under Rule 54(b).

      2. MacDonald’s appeal also does not fall into the second exception, which

permits us in limited circumstances to treat a dismissal without prejudice as one

with prejudice, where that designation is consistent with the clear, consistent intent




                                            4
of the court and the parties. See Romoland, 548 F.3d at 750; Concha, 62 F.3d at

1508-09.

      Here, there was no clear, consistent intent that the voluntary dismissal be

with prejudice. After MacDonald requested dismissal, the government argued to

the district court that MacDonald should be required to pay its fees and costs if the

case were dismissed without prejudice, or alternatively the dismissal should be

with prejudice. The district court explicitly granted MacDonald’s request for

dismissal without prejudice over the government’s objection. So MacDonald had

reason to seek dismissal without prejudice, and the district court’s intent was to

grant that variety of dismissal.

      In contrast, in Romoland, the plaintiffs sought dismissal of their claims

against one defendant, directly telling the district court it sought “final judgment

for purposes of appeal,” but the order of dismissal was silent as to whether the

dismissal was with prejudice. 548 F.3d at 740. And in Concha, both parties

understood that dismissal was sought in order to permit an appeal, which could

only be effectuated through a dismissal with prejudice. 62 F.3d at 1508-09.

      Further, MacDonald’s behavior after the dismissal confirms that he had not

at the time of its entry intended the dismissal to be with prejudice, and that he

believed the remaining claims could be revived. Unlike in Romoland,


                                           5
MacDonald’s dismissal was not only of unadjudicated claims, but rather of the

entire case, including the Fifth Amendment claim for which he had successfully

opposed dismissal. After his successful defense of it, it would have seemed

unlikely that he intended to dismiss that claim with prejudice.

      Further, on appeal, MacDonald continued to treat the Fifth Amendment

claim, which the district court had declined to dismiss, as part of his case. He

argued its merits in his appellate briefs. He also argued that the unserved

defendants should be maintained in the appeal. Although MacDonald suggested at

oral argument, once it became evident that the panel was concerned about its

jurisdiction, that he would now be willing to abandon the Fifth Amendment claim,

that turnabout came too late, given what had come before; the relevant issue is

whether the dismissal was with or without prejudice when approved by the district

court. In Romoland, in contrast, the appellants’ filings and oral representations

consistently showed the intent to dismiss with prejudice before the district court

and throughout the appeal, including at oral argument. 548 F.3d at 750.

      Accordingly, we dismiss MacDonald’s appeal for lack of appellate

jurisdiction.

      DISMISSED.




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