Dulles v. Fluor Engineers, Inc.

881 F.2d 1083 Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Walt Foster DULLES, Plaintiff-Appellant, v. FLUOR ENGINEERS, INC.; Bilby & Schoenhair; Michael J. Rushing, Defendants-Appellees. No. 88-2464. United States Court of Appeals, Ninth Circuit. Submitted* June 13, 1989. Decided Aug. 9, 1989. Before SNEED, FLETCHER and DAVID R. THOMPSON, Circuit Judges. — 1 — MEMORANDUM** — 2 — Dulles appeals, pro se, the dismissal of his complaint by the district court. We dismiss his appeal, but remand to the district court to clarify whether its order is a final order of dismissal. I. FACTS AND PROCEEDINGS BELOW — 3 — On March 22, 1988 Dulles filed a complaint in district court alleging that the named defendants had conspired to destroy evidence and defraud the federal courts. Having found no basis for subject matter jurisdiction the district court dismissed the complaint without prejudice. We lack jurisdiction under 28 U.S.C. Sec. 1291 (1982) to hear this appeal. II. STANDARD OF REVIEW — 4 — A dismissal of the complaint by the district court is reviewed de novo. Peter Starr Prod. Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986). III. JURISDICTION — 5 — The district court dismissed Dulles' complaint without prejudice. There was no express dismissal of the underlying action. This is ordinarily not an appealable final order under 28 U.S.C. Sec. 1291 (1982). See Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir.1984); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984). An exception to this rule, recognized in Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir.1987), may apply. It is also possible that the district court determined that the appellant had stated no federal cause of action, but that a state cause might exist. Under these circumstances, a dismissal without prejudice would not bar the appellant's proceeding on his state cause in the proper state forum. — 6 — We are uncertain what the district court intended. Therefore, we dismiss this appeal and remand this case to the district court. That court may then either dismiss the action, permit Dulles to amend his complaint, or indicate that the dismissal was without prejudice to preserve any state cause of action the appellant might possess. — 7 — APPEAL DISMISSED and CASE REMANDED. Footnotes [-s] * The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a) [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3