Opinion
No. 08-35508.
Argued and Submitted July 9, 2009.
Filed May 18, 2010.
Milton G. Rowland, Foster Pepper PLLC, Spokane, WA, for Plaintiff-Appellee.
Gilbert Henry Levy, Law Offices of Gilbert H. Levy, Seattle, WA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, Senior District Judge, Presiding. D.C. No. 2:05-cv-00139-RHW.
Before: BEEZER, O'SCANNLAIN and KLEINFELD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
In 2005, the City of Spokane filed a complaint in state court, alleging that World Wide Video of Washington, Inc., was operating its stores in violation of a local zoning ordinance. After World Wide Video counterclaimed that the ordinance violated the First and Fourteenth Amendments, the case was removed to federal district court. The parties subsequently agreed to a court-ordered consent decree. In 2007, however, the City moved to vacate the decree under Federal Rule of Civil Procedure 60(b). The district court granted the City's motion and vacated the decree. World Wide Video timely appeals the district court's grant of the City's Rule 60(b) motion as well as the court's denial of World Wide Video's motion for reconsideration.
We lack jurisdiction to hear this appeal. The district court's grant of the City's Rule 60(b) motion was an interlocutory order. See Ballard v. Baldridge, 209 F.3d 1160, 1161 (9th Cir. 2000). Under 28 U.S.C. § 1292(a)(1), this court has jurisdiction over appeals from interlocutory orders of the district court "granting, continuing, modifying, refusing or dissolving injunctions, . . . except where a direct review may be had in the Supreme Court." Although the district court's grant of the City's Rule 60(b) motion did have the effect of dissolving an injunction, see Thompson v. Enomoto, 815 F.2d 1323, 1326 (9th Cir. 1987), the Supreme Court has held that an appeal under § 1292(a)(1) may be heard only if a litigant can also show that the interlocutory order "might have a `serious, perhaps irreparable, consequence,' and that the order can be `effectually challenged' only by immediate appeal," Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). World Wide Video has made neither showing here. Accordingly, we must dismiss this appeal for lack of jurisdiction. See Thompson, 815 F.2d at 1327.
We express no opinion on whether World Wide Video could have made the required showings. Here, however, World Wide Video did not even attempt to make them.
Should there be further proceedings below, we urge the district court to reevaluate whether it has subject-matter jurisdiction, given that the original case has been reopened and the City's complaint asserts only state-law claims. See 28 U.S.C. § 1331; United Student Aid Funds, Inc. v. Espinosa, ___ U.S. ___, ___, 130 S.Ct. 1367, 1376, 176 L.Ed.2d 158 (2010) ("Rule 60(b) . . . provides an exception to finality that allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances." (internal quotation marks and citations omitted)); Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831, 122 S.Ct. 1889, 153 L.Ed.2d 13 (2002) ("[A] counterclaim — which appears as part of the defendant's answer, not as part of the plaintiffs complaint — cannot serve as the basis for `arising under' jurisdiction."); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) ("The presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint"); Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal, 463 U.S. 1, 10 n. 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ("The well-pleaded complaint rule applies to the original jurisdiction of the district courts as well as to their removal jurisdiction.").