T.L. Quach v. Cross

ORDER In No. 04-56108, Plaintiff T.L. Quach appeals the district court’s June 15, 2004, memorandum and order dismissing with prejudice the First Amended Complaint for failure to state a claim under the Racketeer Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. § 1961 et seq. This action is consolidated with No. 05-55090, in which Quach appeals the district court’s December 6, 2004, memorandum and order setting aside the defaults of certain defendants and dismissing the complaint as to those defendants. We note that neither party moved the district court to certify its June 15, 2004, decision as appealable under Fed.R.Civ.P. 54(b). Absent Rule 54(b) certification, the present appeal may be subject to dismissal as an appeal from a nonfinal decision. See 28 U.S.C. § 1291; American States Ins. Co. v. Dastar Corp., 318 F.3d 881, 884 (9th Cir.2003). We order a limited remand of No. 04—56108 to the district court for its consideration as to whether the June 15, 2004, decision should be certified as an appealable final judgment under Rule 54(b). See, e.g., National Ass’n of Home Builders v. Norton, 325 F.3d 1165, 1168 [667] (9th Cir.2003), opinion after limited remand, 340 F.3d 835, 840 (Tashima, J.). An order containing a Rule 54(b) certification is sufficient to validate a prematurely filed notice of appeal if neither party is prejudiced. See Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir.1986). We find that neither party would be prejudiced by a Rule 54(b) certification entered on limited remand. On limited remand, the district court should make an express determination whether there is no just reason for delay. See Fed.R.Civ.P. 54(b). No. 05-55090 will be stayed pending the resolution of No. 04-56108. The panel will retain jurisdiction over these appeals. A certified copy of this order shall serve as the mandate of limited remand. It is so ordered.