Seidman v. City of Beverly Hills

• Citation: 785 F.2d 1447
• Decision Date: 03 April 1986
• Docket Number: No. 85-6273,85-6273
• Parties: Edwin Dean SEIDMAN, on behalf of himself, and a class of all persons similarly situated, Plaintiff/Appellant, v. CITY OF BEVERLY HILLS and Tom John Automotive, Inc., Defendants/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1447

785 F.2d 1447

4 Fed.R.Serv.3d 891

Edwin Dean SEIDMAN, on behalf of himself, and a class of all persons similarly situated, Plaintiff/Appellant, v. CITY OF BEVERLY HILLS and Tom John Automotive, Inc. Defendants/Appellees.

No. 85-6273.

United States Court of Appeals Ninth Circuit.

April 3, 1986.

As Amended April 25, 1986.

William Goichman, Los Angeles, Cal., for plaintiff/appellant.

William R. Sobel, Girard Fisher, Gene McKenzie, Jr., Hillsinger & Costanzo, Los Angeles, Cal., for defendants/appellees.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON and BEEZER, Circuit Judges, and JAMESON, ^* District Judge.

ORDER DISMISSING APPEAL

Edwin Dean Seidman filed an action under 42 U.S.C. Sec. 1983 against the City of Beverly Hills and Tom John Automotive, Inc., claiming the towing and impoundment of his automobile for expired registration without notice of opportunity for a post-seizure hearing violated his right of due process under the Fourteenth Amendment. The district court denied Seidman's motion for certification of a class consisting of all persons whose vehicles had been impounded in the previous three years without receiving notice of opportunity for a hearing.

Subsequently, Seidman settled his individual claims with the defendants, reserving the right to appeal "any of the adverse rulings made against him at trial." The matter had never gone to trial. Seidman and the defendants also stipulated to a dismissal of the action with prejudice, with the exception of Seidman's claim for attorneys' fees. After the district court awarded attorneys' fees to Seidman, judgment was entered for dismissal with prejudice.

Seidman now seeks to appeal the district court's denial of his motion to certify the action as a class action. We dismiss the appeal for lack of jurisdiction.

A plaintiff may not appeal a voluntary dismissal because it is not an involuntary adverse judgment against him. ¹ See Bowers v. St. Louis Southwestern Railway Co., 668 F.2d 369, 369 (8th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir.1976); 5 J. Moore, J. Lucas & J. Wickes Moore's Federal Practice p 41.05, at 41-68 to 41-69 (2d ed. 1985). Having agreed to dismiss this action with prejudice, Seidman deprived this court of jurisdiction to consider his appeal.

Although it is true that the denial of class certification is ordinarily not appealable until after a final judgment is entered, Coopers & Lybrand v. Livesay, 437 U.S. 463, 469-70, 98 S.Ct. 2454, 2458-59, 57 L.Ed.2d 351 (1978), an appealable final judgment must still be adverse to the plaintiff. It cannot be the product of a voluntary stipulation. ²

The stipulation in the instant case was not merely to dismiss Seidman's individual claims, but rather "to dismiss with prejudice the action " itself. Had the stipulation narrowly provided for dismissal of Seidman's individual claims, and then had the district court, having earlier denied class certification, entered an adverse judgment dismissing the entire action, an entirely different scenario would be before us. The issue then would be whether the action should be regarded as moot by virtue of the individual settlement.

We need not reach the question of whether a named plaintiff who settles all his individual claims after denial of class certification may appeal the adverse certification order. It is sufficient to note in this case that Seidman deprived this or any other court...