NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 30 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCHE MEEKS, on behalf of himself No. 18-15768 and others similarly situated, D.C. No. 4:17-cv-07129-YGR Plaintiff-Appellant,

v. MEMORANDUM*

BLAZIN WINGS, INC., a Minnesota corporation; et al.,

Defendants,

and

YELP INC., a Delaware corporation; NOWAIT, INC., a Delaware corporation,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted December 5, 2019 San Francisco, California

Before: W. FLETCHER and MILLER, Circuit Judges, and PREGERSON,**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for District Judge.

Dissent by Judge MILLER

The parties are familiar with the factual and procedural history of this case,

which we repeat here only to the extent necessary to explain our decision. Because

there is no final, appealable order at issue in this case, this appeal is dismissed for

lack of jurisdiction.

1. This Court has appellate jurisdiction over district courts’ “final decisions.”

28 U.S.C. § 1291. “[A]ny order . . . that adjudicates . . . the rights and liabilities of

fewer than all the parties does not end the action . . . .” Fed. R. Civ. P. 54(b); see

also Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981). “A district court

order is therefore not appealable unless it disposes of all claims as to all parties or

unless judgment is entered in compliance with Federal Rule of Civil Procedure

54(b).” Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738,

747 (9th Cir. 2008). Here, there is no dispute that the Northern District order did

not dispose of all claims as to all parties and that Appellant never sought partial

judgment under Rule 54(b).

2. “[T]he general rule in this circuit is that voluntary dismissals without

prejudice do not create appealable, final judgments.” United States v. Gila Valley

Irrigation Dist., 859 F.3d 789, 797 (9th Cir. 2017) (internal quotation marks and

the Central District of California, sitting by designation.

2 18-15768 citation omitted). The exception to the general rule, set forth in James v. Price

Stern Sloan, Inc., 283 F.3d 1064 (9th Cir. 2002) does not apply here.1 “[W]hen a

party that has suffered an adverse partial 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 under 28 U.S.C. § 1291.” Id. at 1070. Appellant has not satisfied either

of the James exception’s prerequisites. Indeed, Appellant does not so much as

acknowledge that district court approval is necessary.2 See Am. States Ins. Co. v.

Dastar Corp., 318 F.3d 881, 888 (9th Cir. 2003) (finding even district court

approval of a stipulation to dismiss without prejudice insufficient to constitute

“approval” for purposes of the James exception).

1 Although Appellant dismissed his claims pursuant to Rule 41(a)(1) and not Rule 41(a)(2), Appellant himself invokes the James exception, recognizing, as we have stated, that “[a]lthough the procedure for obtaining a voluntary dismissal under Rule 41(a)(1) is different from the procedure for obtaining voluntary dismissal under Rule 41(a)(2), the rules regarding appealability are generally the same.” Concha v. London, 62 F.3d 1493, 1506 (9th Cir. 1995). Accordingly, in determining whether an appeal from a voluntary dismissal is appropriate, “we may look to cases that have considered the appealability of voluntary dismissals pursuant to Rule 41(a)(2).” Id. at 1507. 2 Even if some version of the exception could apply even in the absence of district court approval, it would not do so here because, as explained below, there is evidence of an intent to manipulate jurisdiction. See Munns v. Kerry, 782 F.3d 402, 408 n.4 (9th Cir. 2015).

3 18-15768 Furthermore, there is at least some evidence here of an intent to manipulate

appellate jurisdiction. Appellant, of course, had an “absolute right” to dismiss his

claims without prejudice. See Duke Energy Trading & Mktg., LLC v. Davis, 267

F.3d 1042, 1049 (9th Cir. 2001). Standing alone, his choice to exercise that right

would not evince bad intent. Here, however, there are several other indications

that Appellant intends, or intended, to pursue improper piecemeal appeals. See

Romoland, 48 F.3d at 747; James, 283 F.3d at 1067. Appellant’s contention that

Yelp is the “key defendant,” and that he does not intend to pursue claims against

other defendants, is inconsistent with his litigation conduct in district court, his

allegations that other defendants control the advertisements at issue in this case,

and his other arguments to this Court, including the assertion that this appeal will

affect the scope of Appellant’s claims against other defendants. If, on the other

hand, Appellant truly intends to proceed against Yelp alone, then the voluntary

dismissal of the other defendants, with its attendant risk that the claims against

those defendants will expire, presents no real risk at all, undercutting Appellant’s

claim that his assumption of risk indicates a lack of intent to manipulate

jurisdiction. See James, 283 F.3d at 1066. Moreover, there is no merit to

Appellant’s contention that the Central District, in dismissing the remaining claims

with leave to amend, somehow suggested that Appellant proceed with a separate

claim against Yelp, which was no longer a party by the time the case was

4 18-15768 transferred to the Central District. Lastly, Appellant’s decision to file a Notice of

Appeal in the Northern District rather than the Central District appears to be an

attempt to manipulate appellate jurisdiction and obtain a remand to Appellant’s

preferred venue, despite the Northern District’s order transferring the case to the

Central District. See, e.g., Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir.

1997) (“[T]his court has adopted the docketing date in the transferee court as the

time of effective transfer.”); Lou v. Belzberg, 834 F.2d 730, 733 (9th Cir. 1987)

(“Other circuits have held that a section 1404 transfer ends the jurisdiction of [] the

transferor court . . . when the motion is granted and the papers are entered in the

transferee court’s records. . . . We adopt the docketing date as the time of

effective transfer.”) (internal citations omitted).

Appellant’s eleventh-hour representation at oral argument that he does not

intend to pursue claims against the non-Yelp defendants does not wipe the slate

clean. Although in Romoland we did credit a “clarification” at oral argument in

determining that the record did not reflect intentional manipulation, we cannot

grant similar weight to Appellant’s about-face in this case in light of the record as a

whole. See Romoland, 548 F.3d at 748–49. Indeed, the question before us is not

whether the record contains some evidence of innocent intent, but rather whether

there is any evidence of improper motive. See Munns, 782 F.3d at 408 n.4 (finding

dismissal final and appealable “[b]ecause the record reveals no evidence of intent

5 18-15768 to manipulate our appellate jurisdiction . . . .” (emphasis added) (internal quotation

marks omitted)). Furthermore, “the whole point of having bright-line jurisdictional

rules is to avoid the expense and effort of appeal in the first place. We cannot have

a rule where parties are unable to determine appellate jurisdiction based on a facial

examination of the record . . . .” Romoland, 548 F.3d at 759 (Wallace, J.,

concurring).

Accordingly, this appeal is dismissed for lack of jurisdiction.

DISMISSED.

6 18-15768

FILED

Meeks v. Yelp Inc., No. 18-15768 JUL 30 2020

MOLLY C. DWYER, CLERK

MILLER, Circuit Judge, dissenting: U.S. COURT OF APPEALS

As a general matter, a district court’s order is appealable under 28 U.S.C.

§ 1291 only if “it disposes of all claims as to all parties.” Romoland Sch. Dist. v.

Inland Empire Energy Ctr., LLC, 548 F.3d 738, 747 (9th Cir. 2008). But we have

held that when a district court has resolved a plaintiff’s claims against some

defendants, the plaintiff may obtain appellate review of that decision by dismissing

the other defendants under Federal Rule of Civil Procedure 41(a)(1)(A). See Duke

Energy Trading & Mktg., LLC v. Davis, 267 F.3d 1042, 1049–50 (9th Cir. 2001).

As we explained, section 1291 does not “limit[] a plaintiff’s absolute right to

dismiss a defendant without prejudice—i.e., to ‘unjoin’ a defendant,” and, in doing

so, to convert a district court’s order into one that disposes of all claims as to all

parties. Id. at 1049. Here, after the district court entered an order resolving Meeks’s

claims against Yelp, Meeks voluntarily dismissed the other defendants. At that

point, nothing more remained of the litigation, and under Duke Energy, the district

court’s order was final and appealable.

In reaching a contrary conclusion, the court emphasizes that “voluntary

dismissals without prejudice do not create appealable, final judgments.” United

States v. Gila Valley Irrigation Dist., 859 F.3d 789, 797 (9th Cir. 2017) (internal

quotation marks omitted). But that means that the claims that have been voluntarily

1 dismissed are not themselves appealable. See James v. Price Stern Sloan, Inc., 283

F.3d 1064, 1070 (9th Cir. 2002) (“[W]hen a party that has suffered an adverse

partial judgment subsequently dismisses remaining claims . . . the judgment

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

appealable.”). Gila Valley does not undermine the holding of Duke Energy that a

plaintiff may make a decision final by dismissing claims against other defendants.

Similarly, although it is true that when a plaintiff seeks a voluntary dismissal

under Rule 41(a)(2), the dismissal requires “approval of the district court” to create

a final, appealable judgment, that is not what happened here. James, 283 F.3d at

1070. Because the non-Yelp defendants had not yet filed an answer or a motion for

summary judgment, Meeks voluntarily dismissed them under Rule 41(a)(1)(A)(i),

not Rule 41(a)(2). While Rule 41(a)(2) permits dismissal “only by court order,”

Rule 41(a)(1)(A)(i) does not contain that requirement. In these circumstances,

Duke Energy makes clear that a dismissal “requires no action on the part of the

court.” 267 F.3d at 1049.

By dismissing Meeks’s appeal, the court leaves this litigation in a

jurisdictional no man’s land. In the district court, no further proceedings will take

place, but for purposes of the court of appeals, there has been no final judgment.

Perhaps Meeks could ask the district court to certify its order as a partial final

judgment under Federal Rule of Civil Procedure 54(b), but it is unclear that the

2 district court could entertain such a request at this point. Compare Williams v.

Seidenbach, 958 F.3d 341, 349 (5th Cir. 2020) (en banc), with id. at 360 (Oldham,

J., dissenting); see also Com. Space Mgmt. Co. v. Boeing Co., 193 F.3d 1074, 1080

(9th Cir. 1999) (“[T]he district court has no role to play once a notice of dismissal

under Rule 41(a)(1) is filed.”). And if the district court were to choose not to

exercise its discretion under Rule 54(b), the result would be that even though

Meeks’s claims against Yelp have been dismissed on the merits, Meeks would

never be able to obtain appellate review of that dismissal.

It might be said that Meeks has only himself to blame for his predicament.

Our cases warn that “‘evidence of intent to manipulate our appellate jurisdiction’

through the plaintiffs’ voluntary dismissal of [other] defendants” could preclude

the exercise of jurisdiction—even when plaintiffs exercise their right to dismiss a

defendant without prejudice under Rule 41(a)(1)(A)(i). Munns v. Kerry, 782 F.3d

402, 408 n.4 (9th Cir. 2015) (quoting Sneller v. City of Bainbridge Island, 606 F.3d

636, 638 (9th Cir. 2010)). As the court correctly observes, Meeks’s litigation

conduct initially indicated an intent to manipulate jurisdiction. Most notably,

Meeks’s response to this court’s order to show cause explained that “[r]esolving

the scope of Yelp’s liability . . . is critical to determining the issues against the

other defendants,” implying that, once this appeal is over, he might seek to revive

the claims against the other defendants.

3 Nevertheless, after some false starts, Meeks’s counsel stated at oral

argument that Meeks would treat the district court’s dismissal of his claims against

the non-Yelp defendants as if it were with prejudice. That representation by

counsel eliminates any possibility that Meeks might attempt to revive the

dismissed claims. Like other courts of appeals, we have held that such a

representation is sufficient to confirm the finality of an order in these

circumstances. See, e.g., Romoland Sch. Dist., 548 F.3d at 750–51; accord Jewish

People for the Betterment of Westhampton Beach v. Village of Westhampton

Beach, 778 F.3d 390, 394 (2d Cir. 2015); Semerenko v. Cendant Corp., 223 F.3d

165, 172–73 (3d Cir. 2000). I would do the same here.

4