                                                                            FILED
                     UNITED STATES COURT OF APPEALS                          MAY 30 2014

                                                                         MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                         U.S. COURT OF APPEALS




LORENZO MENDOZA MARTINEZ;                         No. 12-16043
ELIEZER MENDOZA MARTINEZ;
ELIU MENDOZA; GLORIA MARTINEZ                     D.C. No. 3:11-cv-03194-WHA
MONTES,                                           Northern District of California,
                                                  San Francisco
              Plaintiffs - Appellants,

  v.                                              ORDER

AERO CARIBBEAN; EMPRESSA
AEROCARIBBEAN, S.A.; CUBANA DE
AVIACION, S.A.; ATR; GIE AVIONS
DE TRANSPORT REGIONAL,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                         Argued and Submitted April 7, 2014
                             San Francisco, California

Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.

       Plaintiffs appeal the district court’s dismissal of their claims against Avions

de Transport Régional (“ATR”) for lack of personal jurisdiction. Plaintiffs are the

heirs of Lorenzo Corazon Mendoza Cervantes, who was a passenger on an airplane

that crashed in Cuba, killing everyone aboard. ATR designed and manufactured
the airplane. At the time of the crash, the airplane allegedly was owned and

operated by Aero Caribbean, Empresa Aerocaribbean S.A., and Cubana de

Aviation S.A. (collectively “the Cuban defendants”), international airlines based in

Cuba. Plaintiffs sued ATR and the Cuban defendants in federal district court,

seeking damages for Cervantes’s death.

       The district court granted ATR’s motion to dismiss and entered judgment for

ATR. That is the decision from which plaintiffs appeal. However, the district

court granted ATR’s motion to dismiss before plaintiffs had properly served the

Cuban defendants. The district court’s order entering judgment for ATR expressly

did not enter judgment with respect to the Cuban defendants. Therefore, at the

time plaintiffs filed their notice of appeal with this court, their claims against the

Cuban defendants remained pending before the district court. Plaintiffs have since

served the Cuban defendants and are pursuing their claims against those defendants

in the district court.

       Under these circumstances, we conclude that plaintiffs’ notice of appeal was

premature because the district court’s order granting ATR’s motion to dismiss was

not an appealable final judgment. We order a limited remand for the district court

“to specify whether it intended that its dismissal order be treated as an appealable




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final judgment pursuant to Federal Rule of Civil Procedure 54(b).” Rollins v.

Mortg. Elec. Registration Sys., Inc., 737 F.3d 1250, 1251 (9th Cir. 2013).

      Under 28 U.S.C. § 1291, we have jurisdiction over appeals from “final

judgment[s] that dispose[] of all claims with respect to all parties.” Dream Games

of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 987 (9th Cir. 2009). In Patchick v.

Kensington Publishing Corp., 743 F.2d 675 (9th Cir. 1984), we recognized an

exception to that rule where “an action is dismissed as to all of the defendants who

have been served and only unserved defendants remain.” Id. at 677. In such a

case, “the district court’s order may be considered final.” Id. However, we have

since qualified the Patchick rule, holding that it does not apply “where no final

judgment is entered and it is clear from the course of proceedings that further

adjudication is contemplated.” Disabled Rights Action Comm. v. Las Vegas

Events, Inc., 375 F.3d 861, 872 (9th Cir. 2004) (emphasis omitted). Although the

district court here entered final judgment with respect to ATR, it did not do so with

respect to the Cuban defendants. And, as in Disabled Rights Action Committee,

“the entire course of events suggests that” the order dismissing plaintiffs’ claims

against ATR was “not intended finally to dispose of the whole case.” Id. at 870.

      As in Disabled Rights Action Committee, the district court here “appeared to

assume that even after the case was dismissed as to [ATR],” plaintiffs were “free to


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serve the [Cuban defendants] if [they] wished to do so.” Id. at 871. The district

court granted ATR’s motion to dismiss on April 20, 2012, and plaintiffs filed their

notice of appeal on May 1, 2012. We know from the docket sheet that after

dismissing ATR, the district court scheduled a pretrial conference and a trial for

plaintiffs’ claims against the Cuban defendants. On January 9, 2013, the district

court requested a status report from plaintiffs, who responded that they were still

trying to serve the Cuban defendants. On November 19, 2013, plaintiffs moved

the district court clerk for entry of default against the Cuban defendants. The clerk

declined to enter default. On December 11, 2013, plaintiffs moved the district

court for entry of default and default judgment. The district court denied the

motion because plaintiffs still had not properly served the Cuban defendants.

      In March 2014, plaintiffs served the Cuban defendants. On plaintiffs’

motion, the clerk of court entered default against the Cuban defendants. The

district court set a deadline of June 6, 2014, for plaintiffs to file a motion for

default judgment. Plaintiffs have not yet moved for default judgment.

      The district court’s order dismissing ATR thus “was not one that ‘left

nothing for the court to do but execute the judgment.’” Id. at 871 (alteration

omitted). “[F]urther adjudication” of plaintiffs’ claims was both “contemplated”

and actually carried out. Id. at 872. Therefore, the order granting ATR’s motion to


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dismiss was not a final judgment, and plaintiffs’ appeal from that order was

premature.

      Under Federal Rule of Civil Procedure 54(b), a district court “may direct

entry of a final judgment as to one or more, but fewer than all, claims . . . if the

court expressly determines that there is no just reason for delay.” While the district

court’s order granting ATR’s motion to dismiss resolved fewer than all of

plaintiffs’ claims, the court did not “expressly determin[e] that there is no just

reason for delay” under Rule 54(b). “It may be that, by entering judgment, the

[district] court intended for the judgment to be appealable, but without a Rule

54(b) certification, we cannot be certain.” Rollins, 737 F.3d at 1254.

      “[A]n order containing a Rule 54(b) certification is sufficient to validate a

prematurely filed notice of appeal if neither party is prejudiced.” Id. at 1253

(quoting Quach v. Cross, 216 F. App’x 666, 667 (9th Cir. 2007)) (internal

quotation mark omitted). In Rollins, this court ordered a limited remand of a

premature appeal for the district court to decide whether its nonfinal dismissal

order “should be certified as an appealable final judgment under Rule 54(b).” Id.

at 1254. We follow that approach here. “We find that neither party would be

prejudiced by a Rule 54(b) certification entered on limited remand.” Id. at

1253–54 (quoting Quach, 216 F. App’x at 667) (internal quotation mark omitted).


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                                      Conclusion

      We order a limited remand for the district court to determine whether its

order dismissing plaintiffs’ claims against ATR for lack of personal jurisdiction

should be certified as an appealable final judgment under Rule 54(b). If the district

court wishes to certify its order under Rule 54(b), it should make an express

finding that there is no just reason for delay. This panel shall retain jurisdiction

over this appeal. A copy of this order shall serve as the mandate of limited

remand. See id. at 1254.

      IT IS SO ORDERED.




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