                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           AUG 14 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

ELEANOR RIGGIO; CHESTER WISE;                    No. 11-15696
DEE ADAMS; BARRY MANN;
ARTHUR SHAW; JAMES STICKLE;                      D.C. No. 2:10-cv-01265-MHM
FRANK ACUNA, on behalf of themselves
and all employees similarly situated,
                                                 MEMORANDUM *
              Plaintiffs - Appellants,

  v.

SERVICE CORPORATION
INTERNATIONAL; SCI FUNERAL
AND CEMETERY PURCHASING
COOPERATIVE INCORPORATED; SCI
WESTERN MARKET SUPPORT
CENTER LP, AKA SCI Western Market
Support Center Incorporated; JANE D.
JONES; GWEN PETTEWAY; THOMAS
RYAN; SCI 401K RETIREMENT
SAVINGS PLAN; JULIE DOUGLAS,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Mary H. Murguia, District Judge, Presiding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted August 8, 2012
                            San Francisco, California

Before: CALLAHAN and WATFORD, Circuit Judges, and SINGLETON, Senior
District Judge.**

      The district court erred in applying res judicata to dismiss this case because

the Stickle action in which the claims at issue were raised had not yet reached final

judgment. See Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Even

assuming the order deeming those claims waived constituted an adjudication on the

merits, it would have been an interlocutory order that – absent certification under

Rule 54(b) – was not yet entitled to res judicata effect. See Continental Airlines,

Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1525 (9th Cir. 1987); see also

Clausen Co. v. Dynatron/Bondo Corp., 889 F.2d 459, 466 (3d Cir. 1989) (district

court order disposing of second count of infringement was interlocutory because

first count was still pending and thus had no res judicata effect); Avondale

Shipyards, Inc. v. Insured Lloyd’s, 786 F.2d 1265, 1270 (5th Cir. 1986) (noting

that “partial summary judgment orders lack the finality necessary for preclusion”).

      Appellees argue for the first time on appeal that the case should be dismissed

as duplicative of the ongoing Stickle action under Adams v. California Department



       **
             The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.

                                          2
of Health Services, 487 F.3d 684 (9th Cir. 2007). Although we held in Adams that

the district court had not abused its discretion in dismissing the action as

duplicative, we recognized that it also had discretion to consolidate the two actions

or to stay or enjoin proceedings. See id. at 692. Here, because the district court

dismissed the case under res judicata, it has not yet decided whether to exercise its

discretion under Adams. Given subsequent developments in the Stickle action, we

believe it is prudent to allow the district court to decide whether to exercise its

discretion in the first instance. Accordingly, without expressing any view as to the

proper result, we remand the case to the district court to decide whether to allow

the action to proceed or, under Adams, to dismiss the action, consolidate it with the

Stickle action, or stay or enjoin proceedings.

      VACATED AND REMANDED.




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