Special Investments, Inc. v. Aero Air, Inc.

• Decision Date: 02 March 2004
• Docket Number: No. 02-55788.,02-55788.
• Citation: 360 F.3d 989
• Parties: SPECIAL INVESTMENTS INC., a California Corporation; Paul Abramowitz, an individual, Plaintiffs-Appellants, v. AERO AIR INC., a Limited Liability Company; Honeywell Inc., a Corporation; Homer J. Shiroma, an individual; GE Engine Services — Corporate Aviation Inc., a Corporation; General Electric Company, a Corporation; Garrett Aviation Services, a Corporation, Defendants, and Twin Commander Aircraft Corporation, a Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

360 F.3d 989

SPECIAL INVESTMENTS INC., a California Corporation; Paul Abramowitz, an individual, Plaintiffs-Appellants, v. AERO AIR INC., a Limited Liability Company; Honeywell Inc., a Corporation; Homer J. Shiroma, an individual; GE Engine Services — Corporate Aviation Inc., a Corporation; General Electric Company, a Corporation; Garrett Aviation Services, a Corporation, Defendants, and Twin Commander Aircraft Corporation, a Corporation, Defendant-Appellee.

No. 02-55788.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 3, 2003 — Pasadena, California.

Filed March 2, 2004.

COPYRIGHT MATERIAL OMITTED

Evan D. Marshall, The Law Offices of Ian Herzog, Santa Monica, California, for the plaintiffs-appellants.

Garrett L. Hanken, Greenberg, Glusker, Fields, Claman, Machtinger & Kinsella, Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding, D.C. No. CV-02-01809-RSWL.

Before: Harry PREGERSON, F. FERNANDEZ, and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge Berzon; Concurrence by Judge Fernandez

OPINION

BERZON, Circuit Judge.

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 Aircraft. In December 1999, Special Investments entered into an agreement to have a "Dash Ten T" engine conversion performed on the aircraft, which was supposed to yield "increased aircraft performance, increased engine efficiency, better operating economics, more flexible maintenance programs, increased reliability and safety, and a higher retail value." In addition, Special Investments was promised that it would be compensated for downtime during the conversion. Special Investments claims that the conversion did not live up to expectations and that there was no compensation for downtime.

On February 1, 2002, Special Investments filed suit in the Superior Court of the State of California for the County of Los Angeles against Twin Commander, the aircraft manufacturer and wholesaler of the Dash Ten T conversion kit; Aero Air, Inc., the retailer of the engine conversion; Honeywell, Inc., the engine type certificate holder; Homer J. Shiroma, a Los Angeles field service engineer for Honeywell; GE Engine Services — Corporate Aviation, Inc., d/b/a Garrett Aviation Services, the service facility that performed the engine conversion; and General Electric Co., the parent company of Garrett. The complaint sought damages for breach of contract, misrepresentation and concealment, punitive damages, attorney's fees, prejudgment interest, and court costs. The case was removed to the district court on March 4, 2002, on the basis that each of the defendants except Mr. Shiroma was of diverse citizenship from Special Investments and Mr. Shiroma had been fraudulently joined in order to defeat the exercise of federal diversity jurisdiction over the case.

On March 11, 2002, Twin Commander filed a motion to dismiss on the basis that it was not subject to the personal jurisdiction of the courts in California. Hearing on that motion was set for April 1, 2002. Then, on March 25, 2002, Special Investments filed a motion to remand the action to state court, asserting that the joinder of Mr. Shiroma was not fraudulent because the complaint stated causes of action against him under California law. Other than the mere filing of the jurisdictional motion, no steps were taken to alert the district court that the motion to remand for lack of subject matter jurisdiction was pending. The district court went forward with the hearing on the personal jurisdiction motion and granted it on April 1, 2002.

With the case still pending against all the other parties, Special Investments filed its notice of appeal from the dismissal order on May 2, 2002. On June 13, 2002, the district court determined that: Mr. Shiroma had not been fraudulently joined; because there was no diversity of citizenship, the district court lacked subject matter jurisdiction; the case had therefore been improperly removed; and the court therefore would not decide a motion by another defendant to dismiss for want of personal jurisdiction. The district court remanded the case to state court without vacating its earlier order dismissing Twin Commander.

STANDARD OF REVIEW

We, of course, have jurisdiction to determine our own jurisdiction. See United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). When we do so, we consider the jurisdictional issue de novo, and even raise it sua sponte when it is not raised by the parties. See WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir.1997) (en banc).

JURISDICTION

At the outset, we must decide whether we have jurisdiction to resolve the merits of the personal jurisdiction decision of the district court. Because this case presents no final, appealable order, we hold that we do not have jurisdiction to review the district court's dismissal of Twin Commander as a direct appeal.

Under 28 U.S.C. § 1291, this court has "jurisdiction of appeals from all final decisions of the district courts." An order dismissing one party for lack of personal jurisdiction while allowing suit to continue against the remaining defendants is not a final, appealable order, absent an "express determination that there is no just reason for delay and ... an express direction for the entry of judgment." Fed.R.Civ.P. 54(b); 28 U.S.C. § 1291. No such express Rule 54(b) entry of judgment in favor of Twin Commander occurred here. We therefore lack jurisdiction to review the district court's order on direct appeal.¹

The district court's subsequent order remanding the entire case to state court does not convert an unappealable, non-final order into an appealable one. This Court has held that a prematurely filed notice of appeal can be cured if the rest of the claims are disposed of in a subsequent final decision terminating the litigation. Anderson v. Allstate Ins. Co., 630 F.2d 677, 681 (9th Cir.1980). Here, however, unlike in Anderson, the dispositive final order was not an appealable final judgment or other appealable order (such as a collateral order treated as final under the rule of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). Rather, the only order subsequent to the order dismissing Twin Commander was the district court's order remanding the entire case to state court. Because an order remanding a suit because of lack of subject matter jurisdiction is not itself a final, appealable order, 28 U.S.C. § 1447(d), it cannot cure appellant's premature notice of appeal. Adding a later unappealable order to an earlier unappealable order does not by some alchemy result in a final judgment or other appealable order.

WRIT OF MANDAMUS

Although the appellant has not filed a petition for a writ of mandamus, "a notice of appeal from an otherwise nonappealable order can be considered as a mandamus petition, an extraordinary remedy that may be obtained only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 998 (9th Cir.2003) (internal quotations omitted). See also Miller v. Gammie, 335 F.3d 889, 895 (9th Cir.2003) (en banc) (treating a notice of appeal as a petition for a writ of mandamus where district court order was not appealable); 28 U.S.C. § 1651(a) (2000) ("[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."). In considering an appeal as a mandamus petition, we review the district court's actions for clear error. Cordoza, 320 F.3d at 998. "To issue the writ, the court must be firmly convinced that the district court has erred, and that the petitioner's right to the writ is clear and indisputable." Executive Software North America, Inc. v. United States District Court, 24 F.3d 1545, 1551 (9th Cir.1994) (citations and internal quotations omitted).

This Court is guided by five objective principles when determining whether to grant a mandamus petition:

(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (3) The district court's order is clearly erroneous as a matter of law. (4) The district court's order is an oft-repeated error or manifests a persistent disregard of the federal rules. (5) The district court's order raises new and important problems, or issues of law of first impression.

Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977) (citations omitted). We need not find that a petition satisfies all five factors at once. Executive Software, 24 F.3d at 1551. In fact, "rarely if ever will a case arise where all...