Pauly v. Vasquez , 690 F. App'x 626 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DANIEL T. PAULY;
DANIEL B. PAULY,
Plaintiffs - Appellants,
v. No. 16-2213
(D.C. No. 1:15-CV-00783-JCH-KBM)
MARIO VASQUEZ, individually, (D. N.M.)
Defendant - Appellee,
and
FORMER NEW MEXICO STATE
POLICE CHIEF ROBERT SHILLING,
individually; NEW MEXICO STATE
POLICE CHIEF PETE KASSETAS,
individually,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, McKAY and LUCERO, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Daniel T. Pauly and Daniel B. Pauly filed a notice appealing a district court
order granting Mario Vasquez’s motion to dismiss their amended complaint.
Because the district court’s order is not a final order under 28 U.S.C. § 1291, we
dismiss this appeal for lack of jurisdiction.
The Paulys filed this civil rights action against Officer Vasquez and other
defendants not involved in this appeal. They alleged that Officer Vasquez violated
their constitutional right to privacy when, in the course of investigating the shooting
death of their son and brother, Samuel Pauly, Officer Vasquez took photographs of
Samuel’s body on a personal cell phone and texted those photographs to friends. The
photographs were later obtained and distributed by news media.
This action was ultimately narrowed to a single claim against Officer Vasquez.
The district court granted his motion to dismiss the Paulys’ amended complaint based
on qualified immunity. The dismissal order expressly granted the Paulys leave to
amend. They filed a notice appealing the dismissal order.
We directed the Paulys to show cause why the appeal should not be dismissed
because the order being appealed is not a final order. The Paulys argue that, applying
this court’s practical approach to finality under § 1291, see Moya v. Schollenbarger,
465 F.3d 444, 448-51 (10th Cir. 2006), the district court’s ruling was a final order.
They contend that the district court effectively dismissed their entire action because
the court’s reasoning in the dismissal order demonstrates that the defects in their
amended complaint could not be cured by further amendment. Officer Vasquez
agrees with the Paulys that, under Moya’s practical approach to finality, the district
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court’s order was final. He asserts that any attempt by the Paulys to amend their
complaint would have been futile.
The parties misconstrue our decision in Moya, in which we endorsed a
“practical approach to finality” where a district court’s dismissal order is “ambiguous
in ways that undermine any clear determination of finality.” Id. at 450 (internal
quotation marks omitted). In these cases, “our approach is to determine as best we
can whether the district court’s order evidences an intent to extinguish the plaintiff’s
cause of action.” Id. (brackets and internal quotation marks omitted). In Moya, we
set forth “principles to be used in reviewing dismissal orders for finality.” Id. One
such principle is that “when the dismissal order expressly grants the plaintiff leave to
amend, that conclusively shows that the district court intended only to dismiss the
complaint; this dismissal is not a final decision.” Id. at 451. We also reiterated “the
process a plaintiff should follow when he or she would rather appeal a non-final
dismissal than amend the complaint.” Id. at 451 n.9. We explained that a plaintiff
who “does not desire to amend” should “announce his election to stand on his
pleading, let a final order or judgment be entered dismissing the action, and then
appeal from that order or judgment.” Id. (internal quotation marks omitted).
Here, the district court’s order is not ambiguous. It expressly granted the
Paulys “leave to amend the complaint within thirty days from the date of this order,”
indicating that their failure to do so “may result in dismissal of this case.” Aplt. App.
at 76. Thus, the order “clearly shows that the district court did not consider its order
to be a final order disposing of the entire action.” Moya, 465 F.3d at 451 (ellipsis
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and internal quotation marks omitted). Consequently, we need not look beyond the
text of the district court’s order to determine its intent.
This appeal is dismissed for lack of jurisdiction.1
Entered for the Court
Timothy M. Tymkovich
Chief Judge
1
Because we have determined that the district court’s order was not final, the
Paulys should be given an opportunity to amend the complaint or, in the alternative,
to stand on their pleadings and allow a final order to be entered. See Moya, 465 F.3d
at 452-53 & n.11; Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to
amend] when justice so requires.”).
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