NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

E.R.E. VENTURES, LLC, a Delaware No. 18-56573 limited liability company; et al., D.C. No. Plaintiffs-Appellants, 2:17-cv-01561-R-RAO

v.

MEMORANDUM*

DAVID EVANS AND ASSOCIATES, an Oregon corporation; et al.,

Defendants-Appellees,

and

KOLOA PACIFIC CONSTRUCTION,

INC.; et al.,

Defendants.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Argued and Submitted June 3, 2020 Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. District Judge.

In 2008, Appellant entities (collectively E.R.E.), began renovating their

property on Catalina Island. General contractors performed grading and excavation

work, while David Evans & Associates (DEA) and Langan Engineering conducted

certain preliminary services, including a soil report that revealed the presence of

naturally occurring asbestos. In 2015, after DEA and Langan had completed their

services, E.R.E. discovered that asbestos was dispersed over the property, allegedly

spread during construction.

In 2017, E.R.E. sued their contractors, including DEA and Langan, under the

Comprehensive Environmental Response, Compensation, and Liability Act and an

array of common-law theories. E.R.E. sought to recover cleanup and remediation

costs incurred due to the asbestos contamination. The district court granted DEA’s

and Langan’s motions for partial summary judgment, denying E.R.E.’s claims

against them. E.R.E. then settled with the other defendants before trial. This appeal

relates solely to E.R.E.’s claims against DEA and Langan.

Following the grant of partial summary judgment in favor of DEA and

Langan, all parties—including the defendants not subject to this appeal—filed a

joint stipulation dismissing their remaining claims without prejudice. The district

court did not approve the stipulation or otherwise participate in the voluntary

dismissal. Rather, the district court simply entered a minute order noting that the

2 18-56573 case “should have been closed on entry date 10/31/2018.” The district court never

entered a final judgment.

This court only has jurisdiction over appeals from a final judgment. See

Galaza v. Wolf, 954 F.3d 1267, 1270 (9th Cir. 2020). “[A] voluntary dismissal

without prejudice is ordinarily not a final judgment from which the plaintiff may

appeal.” Id. (citation omitted) (emphases in the original). Our recent decision in

Galaza requires that the district court “meaningfully participate” in the voluntary

dismissal of claims in order for this court to have jurisdiction over the appeal. Id.

at 1271. Meaningful participation means more than the court simply entering an

order allowing (without necessarily approving) a voluntary dismissal, as the district

court did in this case. Cf. James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1066

(9th Cir. 2002) (noting the “district court’s participation” in the voluntary

dismissal). There is an exception to this general rule: “when a party that has

suffered an adverse partial [summary] judgment subsequently dismisses remaining

claims without prejudice with the approval of the district court, and the record

reveals no evidence of intent to manipulate our appellate jurisdiction, the judgment

entered after the district court grants the motion to dismiss is final and appealable.”

Id. at 1070 (citation omitted) (emphasis added).

For example, in American States Ins. Co. v. Dastar Corp., 318 F.3d 881, 888

(9th Cir. 2003), we concluded that we did not have jurisdiction because the district

3 18-56573 court did not meaningfully participate in dismissal of the claims. Indeed, we stated

that, “[a]lthough the district court ‘approved’ the stipulations to amend and

dismiss, such approval cannot be said to involve meaningful consideration or

participation by the district court inasmuch as the parties were entitled to do so

without leave of the court.” Id. (citations and footnote reference omitted). Thus,

unlike in James, there was no jurisdiction at least in part because the district court

was never empowered “to manage the development of this action, thereby

facilitating efficiency [and] avoiding [a] premature appeal.” Id. at 889.

Similarly, in Galaza, we determined that there was no appellate jurisdiction,

as “the district court did not meaningfully participate in the dismissal” of claims

voluntarily dismissed without prejudice under Rule 41(a)(1), 954 F.3d at 1269, and

the district was never allowed to “make ‘a determination that its adjudication of

those claims was ripe for review,’” id. at 1272 (quoting James, 283 F.3d at 1069).

We concluded that, “though Rule 41(a)(1) may not have required Galaza to seek

permission of the court to voluntarily dismiss her remaining claims, the district

court’s involvement was needed to establish whether that dismissal would produce

a final, appealable judgment or order.” Id. We held “that when a party that has

suffered an adverse partial summary judgment subsequently dismisses any

remaining claims without prejudice, and does so without the approval and

4 18-56573 meaningful participation of the district court, this court lacks jurisdiction under 28

U.S.C. § 1291.” Id. (emphasis added).

In addition, the record contains evidence that the parties intended to

manufacture jurisdiction. Correspondence between the parties reflected that E.R.E.

was adamant about conditioning its stipulation to dismiss on retaining the ability to

revive its claims depending on the outcome of the appeal. Under these

circumstances, no appellate jurisdiction exists.

For the reasons discussed, we grant Appellees DEA and Hall Foreman,

Inc.’s Motion to Dismiss for Lack of Jurisdiction filed on February 25, 2019.

APPEAL DISMISSED.

5 18-56573