Gerald Erickson v. Pnc Mortgage , 585 F. App'x 467 ( 2014 )


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  •                            NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                            FILED
    FOR THE NINTH CIRCUIT                             OCT 17 2014
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    GERALD ERICKSON; DONNA                           No. 12-16802
    ERICKSON,
    D.C. No. 3:10-cv-00678-LRH-
    Plaintiffs - Appellants,           VPC
    v.
    MEMORANDUM*
    PNC MORTGAGE, a division of PNC
    Bank, N.A., successor in interest by
    merger to National City Bank of Indiana;
    MCT FINANCIAL, INC., DBA Trustee
    Corps; FEDERAL HOME LOAN
    MORTGAGE CORPORATION,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    Larry R. Hicks, District Judge, Presiding
    Submitted October 10, 2014**
    San Francisco, California
    Before: CANBY, W. FLETCHER, and WATFORD, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Appellants Gerald and Donna Erickson initiated this litigation after losing
    their home through non-judicial foreclosure proceedings. They appeal from the
    district court’s order dismissing their action without prejudice for failure to
    prosecute. On appeal, the Ericksons challenge various aspects of the district
    court’s interlocutory orders, but they do not challenge the dismissal for failure to
    prosecute.
    Ordinarily, a district court’s interlocutory orders are reviewable after a final
    judgment is issued because they are deemed to merge into the judgment. Am.
    Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 
    248 F.3d 892
    , 897–98 (9th
    Cir. 2001). There is an exception to this general rule, however. “[I]nterlocutory
    rulings do not merge into a judgment of dismissal without prejudice for failure to
    prosecute whether the failure to prosecute is purposeful or is a result of negligence
    or mistake.” Ash v. Cvetkov, 
    739 F.2d 493
    , 498 (9th Cir. 1984). As we explained
    in Ash, important policy considerations underlie application of this exception: “the
    sufferance of dismissal without prejudice because of failure to prosecute is not to
    be employed as an avenue for reaching issues which are not subject to
    interlocutory appeal as of right.” 
    Id. (citing Hughley
    v. Eaton Corp., 
    572 F.2d 556
    (6th Cir. 1978)); accord Al-Torki v. Kaempen, 
    78 F.3d 1381
    , 1386 (9th Cir. 1996)
    2
    (“There is no good reason to allow plaintiff to revive his case in the appellate court
    after letting it die in the trial court.”).
    Here, the Ericksons do not challenge the factual basis for, or propriety of,
    the district court’s dismissal without prejudice for failure to prosecute.
    Additionally, neither before the district court nor before this Court have they made
    a showing of good cause for their failure to prosecute after receiving unfavorable
    interlocutory rulings from the district court. 
    Al-Torki, 78 F.3d at 1386
    (“ If [a
    plaintiff] had a good excuse for the failure to prosecute, that would revive the case,
    including the appealability of interlocutory orders, but he would first have to
    establish that good excuse, either in the district court or on appeal.”). We therefore
    uphold the district court’s unchallenged dismissal for failure to prosecute and,
    because the merger doctrine does not apply, we decline to reach on appeal the
    issues presented by the district court’s interlocutory orders.
    In their reply brief, the Ericksons invite this court to construe the district
    court’s order of dismissal as a voluntary dismissal with prejudice, as we did in
    Omstead v. Dell, Inc., 
    594 F.3d 1081
    (9th Cir. 2010). We decline to do so because
    Omstead is distinguishable. Here, the Ericksons proffer neither evidence nor
    argument to support a conclusion that the district court abused its discretion in
    dismissing their action for failure to prosecute. Similarly, they point to no record
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    evidence of conduct evincing a desire for voluntary dismissal with prejudice to
    facilitate appellate review of the district court’s interlocutory rulings. See 
    id. at 1084–85
    (explaining that the plaintiffs communicated to the district court their
    belief that the interlocutory ruling was fatal to their action and their desire for an
    order that would permit appellate review of that issue). The Ericksons’ inaction
    following the district court’s unfavorable interlocutory rulings is precisely the
    conduct discouraged in 
    Ash. 739 F.2d at 497
    .
    The dismissal of the action without prejudice for failure to prosecute is
    AFFIRMED.
    4