                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 18 2010

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




                            FOR THE NINTH CIRCUIT



CITY OF SPOKANE,                                  No. 08-35508

              Plaintiff - Appellee,               D.C. No. 2:05-cv-00139-RHW

  v.
                                                  MEMORANDUM *
WORLD WIDE VIDEO OF
WASHINGTON, INC.,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of Washington
                 Robert H. Whaley, Senior District Judge, Presiding

                         Argued and Submitted July 9, 2009
                               Seattle, Washington

Before: BEEZER, O’SCANNLAIN and KLEINFELD, Circuit Judges.

       In 2005, the City of Spokane filed a complaint in state court, alleging that

World Wide Video of Washington, Inc., was operating its stores in violation of a

local zoning ordinance. After World Wide Video counterclaimed that the

ordinance violated the First and Fourteenth Amendments, the case was removed to


       *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
federal district court. The parties subsequently agreed to a court-ordered consent

decree. In 2007, however, the City moved to vacate the decree under Federal Rule

of Civil Procedure 60(b). The district court granted the City’s motion and vacated

the decree. World Wide Video timely appeals the district court’s grant of the

City’s Rule 60(b) motion as well as the court’s denial of World Wide Video’s

motion for reconsideration.

      We lack jurisdiction to hear this appeal. The district court’s grant of the

City’s Rule 60(b) motion was an interlocutory order. See Ballard v. Baldridge,

209 F.3d 1160, 1161 (9th Cir. 2000). Under 28 U.S.C. § 1292(a)(1), this court has

jurisdiction over appeals from interlocutory orders of the district court “granting,

continuing, modifying, refusing or dissolving injunctions, . . . except where a direct

review may be had in the Supreme Court.” Although the district court’s grant of

the City’s Rule 60(b) motion did have the effect of dissolving an injunction, see

Thompson v. Enomoto, 815 F.2d 1323, 1326 (9th Cir. 1987), the Supreme Court

has held that an appeal under § 1292(a)(1) may be heard only if a litigant can also

show that the interlocutory order “might have a ‘serious, perhaps irreparable,

consequence,’ and that the order can be ‘effectually challenged’ only by immediate

appeal,” Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981). World Wide Video




                                           2
has made neither showing here.1 Accordingly, we must dismiss this appeal for lack

of jurisdiction. See Thompson, 815 F.2d at 1327.

      Should there be further proceedings below, we urge the district court to

reevaluate whether it has subject-matter jurisdiction, given that the original case

has been reopened and the City’s complaint asserts only state-law claims. See 28

U.S.C. § 1331; United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1376

(2010) (“Rule 60(b) . . . provides an exception to finality that allows a party to seek

relief from a final judgment, and request reopening of his case, under a limited set

of circumstances.” (internal quotation marks and citations omitted)); Holmes

Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (“[A]

counterclaim—which appears as part of the defendant’s answer, not as part of the

plaintiff’s complaint—cannot serve as the basis for ‘arising under’ jurisdiction.”);

Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“The presence or absence

of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’

which provides that federal jurisdiction exists only when a federal question is

presented on the face of the plaintiff’s properly pleaded complaint.”); Franchise

Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10 n.9 (1983)


      1
         We express no opinion on whether World Wide Video could have made
the required showings. Here, however, World Wide Video did not even attempt to
make them.

                                           3
(“The well-pleaded complaint rule applies to the original jurisdiction of the district

courts as well as to their removal jurisdiction.”).

      DISMISSED.




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