Al K. Plotkin, and Gerald Kilgore, Individually and Dba Jk Sports Journal v. Pacific Telephone and Telegraph Company, a Corporation

Gerald Kilgore is the sole appellant from an action originally brought by several parties against appellee, Pacific Telephone and Telegraph Company, under 42 U.S.C. § 1983 and 28 U.S.C. § 1343 . This case presents an appeal from an order of the district court denying Kilgore’s motion to vacate made pursuant to Fed. R. Civ. P. 60(b).

This court has jurisdiction to hear this appeal as an order denying a motion to vacate judgment is appealable as a final judgment under 28 U.S.C. § 1291 . Russell v. Cunningham, 279 F.2d 797, 804 (9th Cir. 1960).

The order of the district court is affirmed.

I BACKGROUND

A review of the series of events which led up to the motion to vacate is in order. Initially, the district court denied a preliminary injunction requested by the plaintiffs, holding that they had failed to exhaust their available administrative remedies which deprived the court of subject matter jurisdiction. That ruling was appealed to this court. While the appeal was pending, the district court granted Pacific Telephone’s motion for summary judgment, holding once again that Kilgore had failed to exhaust his administrative remedies which again deprived the court of subject matter…