                                                   131 Nev., Advance Opinion      46
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                MARCIA M. BERGENFIELD, AN                             No. 67136
                INDIVIDUAL; AND LAWRENCE
                BERGENFIELD, AN INDIVIDUAL,
                Appellants,
                                                                            MED
                vs.                                                          SEP 1 0 2015
                BAC HOME LOANS SERVICING, LP,                               IRA
                Respondent.                                              CLE7ZX   "




                            Jurisdictional screening of an appeal from a district court
                order dismissing a complaint for lack of jurisdiction in a tort action.
                Eighth Judicial District Court, Clark County; Joanna Kishner, Judge.
                            Dismissed.


                Hafter Law and Jacob L. Hafter, Las Vegas,
                for Appellants.

                Akerman LLP and Ariel E. Stern and William S. Habdas, Las Vegas,
                for Respondent.




                BEFORE HARDESTY, C.J., SAITTA and GIBBONS, JJ.


                                                OPINION

                By the Court, GIBBONS, J.:
                            In this opinion, we determine whether a plaintiff can appeal
                from a district court order that dismisses the complaint but allows the
                plaintiff leave to amend. We conclude that an order of this nature is not a

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                final, appealable judgment. If the plaintiff does not intend to amend its
                complaint, then it must provide the district court with written notice of its
                intent to stand on its complaint as drafted, so the district court can enter a
                final, appealable order. Here, the plaintiff did not provide the district
                court said notice, thus we dismiss this appeal for lack of jurisdiction.
                                  FACTS AND PROCEDURAL HISTORY
                            Appellants Marcia M. Bergenfield and Lawrence Bergenfield
                filed a complaint against respondent BAC Home Loans Servicing, LP,
                asserting fraud and consumer fraud. BAC moved to dismiss the
                complaint. The district court granted BAC's motion to dismiss but allowed
                the Bergenfields leave to file an amended complaint. The Bergenfields
                then filed a first amended complaint, once again asserting fraud and
                consumer fraud. Again the district court dismissed it, allowing the
                Bergenfields leave to amend. However, instead of filing a second amended
                complaint, the Bergenfields appealed.' This court issued an order to show
                cause why this appeal should not be dismissed for lack of jurisdiction.    See
                Landreth v. Malik, 127 Nev. 175, 179, 251 P.3d 163, 166 (2011)
                ("[W]hether a court lacks subject matter jurisdiction can be raised by the
                parties at any time, or sua sponte by a court of review . ." (internal
                quotations omitted)).
                                               DISCUSSION
                            This court's appellate jurisdiction is limited to appeals
                authorized by statute or court rule. Brown v. MHC Stagecoach, LLC, 129


                      "The Bergenfields did not seek and the district court did not certify
                any of the dismissed issues under NRCP 54(b).



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                Nev., Adv. Op. 37, 301 P.3d 850, 851 (2013). NRAP 3A(b) sets forth the
                judgments from which a party may appeal. If a judgment "constitutes a
                final judgment, then it is substantively appealable under NRAP 3A(b)(1)."
                Brown, 129 Nev., Adv. Op. 37, 301 P.3d at 851. "This court determines the
                finality of an order or judgment by looking to what the order or judgment
                actually does, not what it is called." Valley Bank of Nev. v. Ginsburg, 110
                Nev. 440, 445, 874 P.2d 729, 733 (1994). "This court has consistently
                looked past labels in interpreting NRAP 3A(b)(1), and has instead taken a
                functional view of finality, which seeks to further the rule's main objective:
                promoting judicial economy by avoiding the specter of piecemeal appellate
                review." Id. at 444, 874 P.2d at 733.
                            Here, we are tasked with determining an issue of first
                impression: whether an order dismissing a complaint with leave to amend
                is a final, appealable judgment.
                            In the United States Court of Appeals for the Ninth Circuit,
                an order dismissing a complaint with leave to amend is not final and,
                thus, not appealable. WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th
                Cir. 1997) (en banc); see also Moya v. Schollenbarger, 465 F.3d 444, 451
                (10th Cir. 2006) ("[W]hen the dismissal order expressly grants the plaintiff
                leave to amend, that conclusively shows that the district court intended
                only to dismiss the complaint; the dismissal is thus not a final decision.").
                "[A] plaintiff, who has been given leave to amend, may not file a notice of
                appeal simply because he does not choose to file an amended complaint."
                WMX Techs., 104 F.3d at 1136. A plaintiff must obtain "[a] further district
                court determination."    Id.   A plaintiff obtains such a determination by
                "fil[ing] in writing a notice of intent not to file an amended complaint." Id.
                at 1135 (internal quotations omitted). "[Ffiling of such notice gives the

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                district court an opportunity to reconsider, if appropriate, but more
                importantly, to enter an order dismissing the action, one that is clearly
                appealable." Id. (internal quotations omitted); see also Edwards v. Mann
                Park, Inc., 356 F.3d 1058, 1064 (9th Cir. 2004) ("In WMX Technologies, we
                specifically noted that a plaintiff may obtain an appealable final judgment
                by filing in writing a notice of intent not to file an amended complaint."
                (internal quotations omitted)).
                            As explained by the Ninth Circuit, we conclude that this rule,
                requiring the plaintiff to obtain a further district court determination, is
                based on sound policy considerations because it allows plaintiffs to
                "exercise their right to stand on a complaint [and appeal the issue of]
                whether the complaint is adequate as a matter of law."         Edwards, 356
                F.3d at 1065. At the same time, it "requires only a modicum of diligence
                by the parties and the district court, avoids uncertainty, and provides for a
                final look before the arduous appellate process commences." WMX Techs.,
                104 F.3d at 1136.
                            Thus, we are persuaded by the Ninth Circuit's approach and
                conclude that a district court order dismissing a complaint with leave to
                amend is not final and appealable. Generally, after issuing an order
                dismissing a complaint with leave to amend, "in the absence of any
                apparent or declared reason—such as undue delay, bad faith or dilatory
                motive on the part of the movant," the district court should grant a party's
                motion for leave to amend. Stephens v. S. Nev. Music Co., Inc., 89 Nev.
                104, 105-06, 507 P.2d 138, 139 (1973) (discussing NRCP 15(a)). If the
                plaintiff, however, chooses to stand on its complaint as drafted, then it
                must file a written notice with the district court revealing its choice within
                30 days from the date of written notice of entry of the court's order of
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                 dismissal. The district court can then enter a final and appealable order
                 of dismissal, i.e., one without leave to amend. See NRAP 3A(b)(1); see also
                 NRAP 4(a)(1) (stating that generally a notice of appeal must be filed "no
                 later than 30 days after the date that written notice of entry of the
                 judgment or order appealed from is served").
                              In the present case, the district court order granting BAC's
                 second motion to dismiss is not final and appealable because it allows the
                 Bergenfields leave to amend. The Bergenfields did not notify the district
                 court that they intended to stand on their first amended complaint. As a
                 result, the district court never entered a final, appealable order.
                 Accordingly, we dismiss this appeal for lack of jurisdiction.




                 We concur:


                                                   C.J.
                 Hardesty


                     (1datECL
                      1




                 Saitta
                                              2   J.




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