Ballard v. Baldridge, 209 F.3d 1160

COUNSEL: A. Thomas Cole, Cole & O‘Neil, Casa Grande, Arizona for the plaintiff-appellant.

Scott A. Salmon, O‘Connor, Cavanagh, Anderson, Killingswoth & Beshears, Phoenix, Arizona, for the defendantsappellees.

Before: Betty B. Fletcher, Dorothy W. Nelson, and Robert R. Beezer, Circuit Judges.

ORDER

We dismiss without prejudice the appeal for lack of jurisdiction because the district court‘s order vacating the judgment was not a final order. See 28 U.S.C.S 1291. A final order is a “decision by the District Court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ Catlin v. United States, 324 U.S. 229, 233 (1945).” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). Orders vacating judgments without more under Rule 60(b) are interlocutory orders which are not appealable. Resnik v. La Paz Guest Ranch, 289 F.2d 814, 817 (9th Cir. 1961). This is in keeping with the general rule in other circuits that a vacatur of a judgment in response to a Rule 60(b) order is not a final judgment. See Parks v. Collins, 761 F.2d 1101, 1103-4 (5th Cir. 1985) (“When an order granting a Rule 60(b) motion, ‘merely vacates the judgment and leaves the case pending for further determination the order is akin to an order granting a new trial and is interlocutory and nonappealable.’ 7 J. Moore, Moore‘s Federal Practice P 60.30 (2d ed. 1983)“). At such time as a final order is entered in this matter, an appeal may be taken.

DISMISSED without prejudice

Case Details

Case Name: Ballard v. Baldridge

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 17, 2000

Citations: 209 F.3d 1160; 99-17369

Docket Number: 99-17369

Court Abbreviation: 9th Cir.