Eleanor Riggio v. Service Corporation International

MEMORANDUM

The district court erred in applying res judicata to dismiss this case because the Stickle action in which the claims at issue were raised had not yet reached final judgment. See Stewart v. U.S. Bancorp, 297 F.Bd 953, 956 (9th Cir.2002). Even assuming the order deeming those claims waived constituted an adjudication on the merits, it would have been an interlocutory order that — absent certification under Rule 54(b) — was not yet entitled to res judicata effect. See Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519,1525 (9th Cir.1987); see also Clausen Co. v. Dynatron/Bondo Corp., 889 F.2d 459, 466 (3d Cir.1989) (district court order disposing of second count of infringement was interlocutory because first count was still pending and thus had no res judicata effect); Avondale Shipyards, Inc. v. Insured Lloyd’s, 786 F.2d 1265, 1270 (5th Cir.1986) (noting that “partial summary judgment orders lack the finality necessary for preclusion”).

Appellees argue for the first time on appeal that the case should be dismissed as duplicative of the ongoing Stickle action under Adams v. California Department of Health Services, 487 F.3d 684 (9th Cir.2007).…