                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 19 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROBERT BOGGS,                                    No. 09-35803

              Plaintiff - Appellee,              D.C. No. 3:09-cv-00116-ST

  v.
                                                 MEMORANDUM *
JOHN K. HOOVER; JOHN C.
BRADLEY; CHARLES R. FRENCH;
JO’EY STEWART,

              Defendants,

  and

AGNES SOWLE; KATHRYN A.
SHORT,

              Defendants - Appellants.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                     Argued and Submitted November 4, 2010
                                Portland, Oregon



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before:      W. FLETCHER and FISHER, Circuit Judges, and JONES,
             District Judge. **

      Defendants Sowle and Short appeal from the district court’s without-

prejudice dismissal of plaintiff Robert Boggs’ complaint for failure to state a claim.

Defendants allege that the complaint should have been dismissed with prejudice

because defendants are protected by qualified immunity and thus amendment

would be futile. We conclude that we lack appellate jurisdiction over this

interlocutory appeal.

      A district court’s order dismissing a complaint with leave to amend is not an

appealable final order. See Santoro v. CTC Foreclosures Servs. Corp., 193 F.3d

1106, 1107 (9th Cir. 1999); Firchau v. Diamond Nat’l Corp., 345 F.2d 269, 270-71

(9th Cir. 1965). Accordingly, for this Court to have jurisdiction to review the

district court’s order, the order must qualify as a collateral order under Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Denials of qualified immunity

often qualify as appealable collateral orders under Mitchell v. Forsyth, 472 U.S.

511 (1985). Forsyth, however, was based on the need to protect government

defendants’ entitlement to qualified immunity by not subjecting them to “the costs




      **
       The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.

                                           2
of trial or to the burdens of broad-reaching discovery.” Id. at 526 (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 817-18 (1982)).

      The unavailability of an interlocutory appeal at this stage of the proceedings

does not risk subjecting defendants to either trial or discovery. Defendants can

wait to see if plaintiff files an amended complaint, and, if he does, can file another

motion to dismiss. If plaintiff fails to correct the problem the district court

identified with the first complaint, defendants will prevail without needing to

appeal to this court. If plaintiff corrects the problem and the district court denies

the motion to dismiss, then defendants can appeal that decision. Cf. Behrens v.

Pelletier, 516 U.S. 299, 308 (1996). Dismissing this case for lack of appellate

jurisdiction thus balances the entitlement “not to stand trial or face the other

burdens of litigation,” Forsyth, 472 U.S. at 526, with the desire to avoid “waste[d]

judicial resources by requiring repetitive appellate review,” Van Cauwenberghe v.

Biard, 486 U.S. 517, 528 (1988), or appellate review that may prove entirely

unnecessary.

      Defendants expressed concern that if they failed to appeal the district court’s

order they would be prohibited from defending against an amended complaint on

the basis of qualified immunity, or would waive their right to appeal the district

court’s qualified immunity determination. We see nothing that would prevent the


                                            3
district court from either reversing its earlier decision, or reaching a different

conclusion concerning qualified immunity based on differing factual allegations in

an amended complaint. Furthermore, there is no doctrine that requires a defendant

to take advantage of an available interlocutory appeal, and thus defendants need

not have feared that their right to appeal the district court’s qualified immunity

determination would have been waived, even had an appeal been available to them

at this point in the litigation.

       DISMISSED.




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