Gerald Erickson v. Pnc Mortgage

MEMORANDUM

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 renewable 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. “[IJnterlocutory 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…