Jessica Lundquist v. United States, 21-55908

Background

Jessica Lundquist sued federal defendants asserting FTCA and Bivens claims; defendants moved to dismiss.
On July 27, 2021 the district court granted defendants’ motions and dismissed the FTCA claims without prejudice, producing a nonfinal order.
Lundquist filed a notice of appeal after the July 27 order; the appeal was premature because the dismissal without prejudice was not final.
On September 2, 2021 the district court dismissed the action for failure to prosecute (an independent, final basis for dismissal).
Lundquist filed an amended notice of appeal on September 3; the Ninth Circuit held a notice that was void at inception cannot be cured by amendment and declined to treat the amendment as a fresh appeal.
The Ninth Circuit affirmed the dismissal for failure to prosecute, finding no abuse of discretion after applying the five-factor Ferdik/Pagtalunan test (four factors favored dismissal).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court has jurisdiction over Lundquist’s appeal	July 27 order was effectively finalized by the September 2 dismissal, so the original notice should be treated as timely	Original July 27 order was nonfinal; the original notice was premature and therefore void	Dismissed for lack of jurisdiction; the original notice was void and cannot be cured by amendment
Whether the September 2 dismissal ‘‘made final’’ the July 27 order	The September 2 dismissal finalized the earlier order and thus validated the original notice	The September 2 dismissal was an independent final judgment that did not merge the earlier nonfinal order	The September 2 dismissal did not convert the July 27 nonfinal order into a final one; they are independent dispositions
Whether an amended notice of appeal can cure an initially void notice	The amended notice (filed Sept 3) should save the appeal	A notice void at the outset cannot be cured by amendment; an amended notice may be treated as a new appeal only at the court’s discretion	A void notice cannot be revived by amendment; court declined to exercise discretion to docket a new appeal
Whether dismissal for failure to prosecute was an abuse of discretion	Lundquist argued dismissal was improper given short inactivity and prior lesser sanctions	District court properly applied the five-factor test and warned plaintiff; dismissal was within discretion	No abuse of discretion; four of five Pagtalunan/Ferdik factors favored dismissal

Key Cases Cited

WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (nonfinal orders not appealable while claims remain pending)
Ash v. Cvetkov, 739 F.2d 493 (9th Cir. 1984) (district court discretion on unreasonable delay and docket management)
Trinidad Corp. v. Maru, 781 F.2d 1360 (9th Cir. 1986) (a notice of appeal void at inception cannot be amended into validity)
Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002) (sets five-factor test for dismissal for failure to prosecute)
Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (availability of lesser sanctions and warning can satisfy fourth-factor analysis)
In re Eisen, 31 F.3d 1447 (9th Cir. 1994) (rebuttable presumption of prejudice to defendants from plaintiff delay)
Yourish v. California Amplifier, 191 F.3d 983 (9th Cir. 1999) (appellate review of failure-to-prosecute dismissals and related procedural issues)
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognizes implied damages action against federal officers)