Shana Becerra v. the Coca-Cola Company ( 2019 )

FILED
NOT FOR PUBLICATION
DEC 23 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHANA BECERRA, on behalf of herself, No. 18-15365
all others similarly situated, and the
general public, D.C. No. 3:17-cv-05916-WHA
Plaintiff-Appellant,
MEMORANDUM*
v.
THE COCA-COLA COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted December 4, 2019**
San Francisco, California
Before: SILER,*** BYBEE, and R. NELSON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Appellant Shana Becerra sued appellee The Coca-Cola Company, alleging
that Coca-Cola violated various consumer-fraud laws by branding Diet Coke using
the word “diet.” The district court dismissed her claims, but granted leave to
amend. Instead of amending her complaint, Becerra appealed. We dismiss her
appeal for lack of jurisdiction.
Title 28 U.S.C. § 1291 limits appellate jurisdiction to “final decisions of the
district courts of the United States.” “A final decision is one that ends the litigation
on the merits and leaves nothing for the court to do but execute the judgment.”
United States v. Lummi Indian Tribe, 235 F.3d 443, 448 (9th Cir. 2000) (internal
quotation marks omitted). Orders granting motions to dismiss are “not necessarily
immediately appealable.” Disabled Rights Action Comm. v. Las Vegas Events,
Inc., 375 F.3d 861, 870 (9th Cir. 2004). When an order granting a motion to
dismiss is without prejudice and with leave to amend, it is not a final appealable
order. WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc).
The district court order here shows no intent to dispose of the entire action.
See Montes v. United States, 37 F.3d 1347, 1350 (9th Cir. 1994) (noting that, in
determining whether a dismissal order is final, it is important to consider “what
effect the court intended it to have, rather than the label placed upon it”). Nothing
in the order or in the record shows that the dismissal order ended the case. We
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therefore dismiss Becerra’s appeal for lack of jurisdiction. See WMX Techs., 104
F.3d at 1136 (“[A] plaintiff, who has been given leave to amend, may not file a
notice of appeal simply because he does not choose to file an amended
complaint.”).
DISMISSED.
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