Special Investments Inc. v. Aero Air Inc.

Opinion by Judge Berzon; Concurrence by Judge Fernandez

OPINION

This case concerns a procedural tangle that arose when a district court considered sequentially two varieties of jurisdictional issues. Special Investments, Inc., and Paul Abramowitz (collectively “Special Investments”) brought this action against Twin Commander Aircraft Corporation and others in the Superior Court of the State of California for the County of Los Angeles. The defendants, including Twin Commander, removed the case to the district court, which ultimately determined that it did not have subject matter jurisdiction and remanded. Before the remand, however, the district court decided that there was no personal jurisdiction over Twin Commander and dismissed Twin Commander from the case. Special Investments filed this appeal from that decision, while the rest of the case has long been out of federal court. We construe the appeal as a petition for a writ of mandamus, grant the writ, and direct the district court to vacate its personal jurisdiction order.

BACKGROUND

Special Investments owns a North American Rockwell Aero Commander Air *992 craft. In December 1999, Special Investments entered into an…

concurring:

I concur in the result, but for different reasons. Those reasons avoid undermining our jurisprudence regarding the curing of premature appeals, do not declare that the district court erred in not doing what no party asked it to do, 1 and do not unnecessarily convert a direct appeal into a petition for mandamus. I hasten to add, however, that I do not suggest that the majority opinion is implausible; I just think that it is mistaken.

We do have jurisdiction to hear an appeal from a final judgment. See 28 U.S.C. § 1291 . However, at the time that Special Investments filed its notice of appeal there was no final judgment in this case because numerous entities were still parties to the proceeding in the district court, and that court did not direct the entry of a final judgment. See Fed.R.Civ.P. 54(b). Nor did the district court certify issues. See 28 U.S.C. § 1292 (b).

Nevertheless, we have often held that the progress of events can cure a premature appeal because “orders adjudicating only some of the claims may be treated as final orders if the remaining claims have subsequently been finalized.” Anderson v. Allstate Ins. Co., 630 F.2d 677, 680 (9th Cir.1980); see also…