William Marr v. Bank of America National Assoc

dissenting:

Although I would join the majority on the merits if I could, I respectfully dissent from the majority’s jurisdiction analysis. It is clear to me that this court lacks jurisdiction to hear this appeal.

Generally, we may only hear appeals from final decisions of the district court. 28 U.S.C. § 1291 . Appellant Marr purports in his Notice of Appeal to take this appeal from the district court’s March 8, 2011 order granting in part and denying in part cross motions for partial summary judgment. That order is not a final judgment as it plainly contemplates that the case remains before the district court and expressly states that the “action will proceed” on those claims as to which the district court had yet to enter judgment. See Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 , 114 S.Ct. 1992 , 128 L.Ed.2d 842 (1994); Way v. Cnty. of Ventura, 348 F.3d 808, 810 (9th Cir.2003).

Marr points to the district court’s April 27, 2011 order, which granted the parties’ joint stipulation regarding dismissal and entry of judgment, as providing jurisdiction for this appeal. Even disregarding that Marr’s Notice of Appeal was from the March 8 order and not the April…

MEMORANDUM *

William Marr appeals from the district court’s grant of summary judgment to Bank of America on his claim under § 221 of the California Labor Code and his derivative claim under § 17200 of the California Business and Professions Code. We have jurisdiction under 28 U.S.C. § 1291 , see James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1065-67 (9th Cir.2002), and we affirm.

The California courts have held that it is illegal under § 221 and other state statutes and regulations for employers to take deductions for general business expenses from commissions that are based on an individual employee’s sales. See Kerr’s Catering Serv. v. Dep’t. of Indus. Relations, 57 Cal.2d 319 , 19 Cal.Rptr. 492 , 369 P.2d 20, 24-27 (1962); Hudgins v. Neiman Marcus Grp., Inc., 34 Cal.App.4th 1109 , 41 Cal.Rptr.2d 46, 51-55 (1995); Quillian v. Lion Oil Co., 96 Cal.App.3d 156 , 157 Cal.Rptr. 740, 742-45 (1979). Deductions from such commissions are permitted, however, when (1) the deductions are tied to the employee’s sales rather than general business expenses, and (2) the employee agrees to the deductions by contract. See Koehl v. Verio, Inc., 142 Cal.App.4th 1313 , 48 Cal.Rptr.3d 749, 760-67…

FILED

NOT FOR PUBLICATION FEB 01 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

WILLIAM MARR, No. 11-16308

Plaintiff - Appellant, D.C. No. 3:09-cv-05978-WHA

v.

MEMORANDUM *

BANK OF AMERICA, NA,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Argued and Submitted January 15, 2013 San Francisco, California

Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

William Marr appeals from the district court’s grant of summary judgment

to Bank of America on his claim under § 221 of the California Labor Code and his

derivative claim under § 17200 of the California Business and Professions Code.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. We have jurisdiction under 28 U.S.C. § 1291, see James v. Price Stern Sloan, Inc.,

283 F.3d 1064, 1065–67 (9th Cir. 2002), and we affirm.

The California courts have held that it is illegal under § 221 and other…