Holloway

MEMORANDUM **

I. Appealability

We have raised sua sponte whether the district court’s order was a final and appealable order, as we must for issues concerning our jurisdiction. See WMX Tech., Inc. v. Miller, 104 F.3d 1133 , 1135 (9th Cir.1997) (en banc). Having raised the question, we find that the answer is yes.

In determining whether the district court’s ruling was a final, appealable order, we focus on the effect the court intended to have, whether it intended to end litigation or leave the plaintiff free to file an amended complaint. See Montes v. United States, 37 F.3d 1347, 1350 (9th Cir.1994). Dismissal of the complaint alone is ordinarily not appealable unless the circumstances clearly indicate that the court determined that it could not be saved by amendment. Id. Dismissal of an action is final and appealable. Id.

We conclude that the district court did intend its order to be final. First, in the one instance in which the October 20, 2000, order directly described the district court’s intention, it stated that the court was dismissing the “case.” The portion of the order explicating the legal standard under Fed. R. of Civ. P. 12(b)(1) also used consistent terms,…