Norblad

MEMORANDUM *

Plaintiffs Alvin Norblad and Richard Lefor appeal from orders of the district court (1) granting the defendant’s motion to dismiss a complaint without prejudice; and (2) denying the plaintiffs’ motion for leave to file an amended complaint, respectively. The facts are known to the parties and shall not be repeated herein except as necessary.

I

We must first determine whether the district court’s order of December 18, 2001, dismissing without prejudice the complaint filed in the second action, is a final, appealable, order. See 28 U.S.C. § 1291 (“The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.... ”). A final order is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1066 (9th Cir.2000) (internal quotation omitted). Ordinarily, an order dismissing a complaint but not dismissing the action is not appealable under § 1291 “unless circumstances make it clear that the [district] court concluded that the action could not be saved by an amendment of the complaint.” Lopez v.…