                                                                              FILED
                                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                       Tenth Circuit

                            FOR THE TENTH CIRCUIT                        March 4, 2020
                        _________________________________
                                                                     Christopher M. Wolpert
                                                                         Clerk of Court
 EARL E. BRAMHALL,

      Plaintiff - Appellant,

 v.                                                       No. 19-4032
                                               (D.C. No. 2:18-CV-00438-DB-EJF)
 SALT LAKE DISTRICT ATTORNEY’S                              (D. Utah)
 OFFICE; SIMARJIT S. GILL, Salt Lake
 District Attorney; MELANIE M.
 SERASSIO, Deputy District Attorney;
 STEVEN C. GIBBONS, Deputy District
 Attorney; NATHANIEL J. SANDERS,
 Deputy District Attorney; ROBERT N.
 PARRISH, Deputy District Attorney;
 NATHAN J. EVERSHED, Deputy District
 Attorney; CHOU CHOU COLLINS,
 Deputy District Attorney; THOMAS V.
 LOPRESTO, Deputy District Attorney;
 CRAIG STANGER, Deputy District
 Attorney; JARED W. RASBAND, Deputy
 District Attorney; CHRISTINA P.
 ORTEGA, Deputy District Attorney;
 GREGORY N. FERBRACHE, Deputy
 District Attorney; JARED N. PARRISH,
 Deputy District Attorney; CYPRUS
 CREDIT UNION, West Valley, Utah;
 BROOK BENNION, Previous Branch
 Manager, Cyprus Credit Union,

      Defendants - Appellees.
                     _________________________________

                               ORDER AND JUDGMENT *

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
                        _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Earl Bramhall appeals from the district court’s order dismissing without

prejudice his complaint against various members of the Salt Lake District Attorney’s

Office (the “County Defendants”) as well as Cyprus Credit Union and Brook Bennion

(the “Bank Defendants”). We dismiss this appeal for lack of appellate jurisdiction.

                                            I

      Bramhall was arrested on July 23, 2008, for aggravated robbery and making

threats against life or property. Officers from the West Valley City Police

Department believed Bramhall had called a branch of the Cyprus Credit Union earlier

that morning from a pay phone and told the branch manager, Bennion, that he wanted

$100,000 in cash, that he was a sharp shooter and watching her from a building

across the street, and that he had surrounded the bank with explosives. After

spending over fifty-three months in pretrial detention and undergoing multiple

competency evaluations, Bramhall was found not guilty by a jury in July 2017.

      In June 2018, Bramhall filed an action against more than thirty defendants. He

alleged the County Defendants (1) committed prosecutorial misconduct, (2) subjected

him to cruel and unusual punishment, (3) violated his Fifth Amendment rights by




except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.

                                            2
failing to indict him before a grand jury, (4) conspired to prosecute him despite a lack

of evidence, (5) attempted to coerce him into pleading guilty, (6) denied his right to a

speedy trial, (7) improperly subjected him to numerous competency evaluations, and

(8) improperly allowed a witness to remain in the courtroom during a preliminary

hearing. With respect to the Bank Defendants, he alleged that (1) Bennion made

false accusations against him and committed perjury at his trial and that (2) Cyprus

Credit Union was negligent in hiring, supervising, and retaining Bennion.

       Bramhall voluntarily dismissed his claims against the Police Defendants.

After the County Defendants and Bank Defendants filed motions to dismiss, a

magistrate judge recommended granting the motions. The district court adopted the

magistrate judge’s recommendations and dismissed Bramhall’s claims against the

County Defendants and Bank Defendants.

       Bramhall then filed (1) a motion for leave to file an amended complaint, (2) a

motion under Fed. R. Civ. P. 60(b)(6) for modification of the district court’s order,

and (3) a notice of appeal. We abated the appeal until the post-judgment motions

were resolved. The district court denied the motion for leave to amend, concluding it

was procedurally improper. It also denied in part and granted in part the Rule 60(b)

motion, discerning no factual or legal basis for altering the substance of its prior

ruling but modifying that ruling “to clarify that [Bramhall’s] claims are dismissed

without prejudice” and that he “may still pursue his claims in an appropriate manner

if he is able to allege sufficient facts to state a plausible claim for relief.” Bramhall



                                             3
filed an amended notice of appeal to include the district court’s post-judgment

rulings, and we lifted the abatement.

                                           II

      Bramhall contends the district court erred in dismissing his claims against the

County Defendants and Bank Defendants and in denying his motion for leave to

amend his complaint. Before addressing these claims, we must determine whether

we have jurisdiction over this appeal.

      Ordinarily, only “final decisions” of the district court are appealable.

28 U.S.C. § 1291. “To be final under 28 U.S.C. § 1291, an order must end the

litigation on the merits and leave nothing for the court to do but execute the

judgment.” Alexander v. U.S. Parole Comm’n, 514 F.3d 1083, 1087 (10th Cir. 2008)

(quotation and alterations omitted). “[A] dismissal without prejudice is usually not a

final decision,” Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir.

2001), but may be final “depending upon the circumstances,” Moya v.

Schollenbarger, 465 F.3d 444, 448 (10th Cir. 2006) (quotation omitted). If the

dismissal of Bramhall’s claims without prejudice was not a final order, “then we lack

jurisdiction to hear the appeal.” Id.

      At the outset, we note that Bramhall contends “this Court already ruled” it has

jurisdiction because the court’s order lifting the abatement of his appeal indicated the

district court’s order was final. Nevertheless, “we have an independent duty to

examine our own jurisdiction,” Amazon, 273 F.3d at 1274, even if it requires us to



                                           4
reconsider prior determinations on appellate jurisdiction, see Kennedy v. Lubar,

273 F.3d 1293, 1299-1300 (10th Cir. 2001).

       When assessing whether a dismissal is final and appealable, “we look to the

substance and objective intent of the district court’s order, not just its terminology.”

Moya, 465 F.3d at 449 (emphases omitted). When reviewing an ambiguous order,

we must “determine as best we can whether the district court’s order evidences an

intent to extinguish the plaintiff’s cause of action, and whether the plaintiff has been

effectively excluded from federal court under the present circumstances. If so, then

our appellate jurisdiction is proper.” Id. (quotations, citations, and alterations

omitted). We employ a “practical approach” guided by “the following principles”:

(1) “if a district court order expressly and unambiguously dismisses a plaintiff’s

entire action, that order is final”; (2) if “a district court dismissal expressly denies the

plaintiff leave to amend, or the district court’s grounds for dismissal are such that the

defect cannot be cured through an amendment to the complaint, that dismissal (even

if it is ambiguous or nominally of the complaint) is for practical purposes of the

entire action and therefore final”; and (3) if “the dismissal order expressly grants the

plaintiff leave to amend, that conclusively shows that the district court intended only

to dismiss the complaint” and that the dismissal is not final. Id. at 450-51 (quotations

and emphases omitted).

       The first and third principles do not apply in this case. The district court did

not grant leave to amend or “expressly and unambiguously dismiss[] [Bramhall’s]

entire action.” Id. at 450. Instead, the court’s order expressly states that

                                             5
Mr. Bramhall’s “claims are dismissed without prejudice” and that the court’s original

ruling “dismissed the operative Complaint in its entirety.” See id. at 449 (“[W]hether

an order of dismissal is appealable generally depends on whether the district court

dismissed the complaint or the action. A dismissal of the complaint is ordinarily a

non-final, nonappealable order (since amendment would generally be available),

while a dismissal of the entire action is ordinarily final.” (quotation omitted)).

      Finality in this case thus hinges on the second principle in Moya. Although

the district court denied Bramhall’s motion to amend, it explained that allowing him

“to file his proposed Amended Complaint would be futile” because the proposed

amended complaint did nothing to cure the original complaint’s defects. Moreover,

the court suggested the defects could be cured, stating Bramhall “may still pursue his

claims in an appropriate manner if he is able to allege sufficient facts to state a

plausible claim for relief.” By inviting Bramhall to continue to “pursue his claims,” 1

the district court plainly did not exclude him from federal court. See id. at 450, 454.




      1
         Bramhall interpreted this statement as “direct[ing] the filing of a new
Complaint with a new case number and new date-time-stamp.” He has done just that,
filing a new complaint in district court against the County Defendants and the Bank
Defendants in Case Number 2:19-cv-00477-RJS-CMR. As of the filing of this order
and judgment, a dispositive ruling has not been entered in that action.

                                            6
                                         III

       Accordingly, the district court’s order dismissing Bramhall’s claims without

prejudice was not a final order. We therefore DISMISS the appeal for lack of

appellate jurisdiction.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




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