McCalden v. California Library Ass'n
| Citation | 955 F.2d 1214 |
| Decision Date | 24 January 1992 |
| Docket Number | No. 88-5727,88-5727 |
| Parties | Viviana McCALDEN, * Plaintiff-Appellant, v. CALIFORNIA LIBRARY ASSOCIATION, City of Los Angeles, American Jewish Committee, Marvin Hier, Simon Wiesenthal Center, Inc., Westin Hotel Company, dba Westin Bonaventure Hotel, Defendants- Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Bruce B. McKee, San Francisco, Cal., for plaintiff-appellant.
Christine W.S. Byrd, Jones, Day, Reavis & Pogue, Los Angeles, Cal., for defendant-appellee California Library Ass'n.
Marcia Kamine, Deputy City Atty., Los Angeles, Cal., for defendant-appellee City of Los Angeles.
Michael F. Sitzer, Loeb & Loeb, Los Angeles, Cal., for defendant-appellee American Jewish Committee.
Clay Robins III, Chase, Rotchford, Drukker & Bogust, Los Angeles, Cal., for defendant-appellee Westin Hotel Co.
Jeffrey N. Mausner, Laurence M. Berman, Berman, Blanchard, Mausner & Kindem, Los Angeles, Cal., for defendants-appellees Simon Wiesenthal Center and Marvin Hier.
Appeal from the United States District Court for the Central District of California.
Before FLETCHER, D.W. NELSON and NORRIS, Circuit Judges.
The Opinion, filed November 20, 1990, is amended as follows:
Judge Fletcher, as dissenter, neither joins in nor opposes the amendment to the majority opinion contained in this order.
With the above amendments, the panel has voted unanimously to deny the petition for rehearing and to reject the suggestion for a rehearing en banc.
The full court has been advised of the suggestion for en banc rehearing, and a judge in active service requested that a vote be taken on the suggestion for rehearing en banc. Fed.R.App.P. 35(b).
Upon the vote of the eligible judges in active service, a majority failed to vote for en banc rehearing. Judge Kleinfeld entered The petition for rehearing is DENIED, and the suggestion for a rehearing en banc is REJECTED.
upon active service after the requisite date and was not eligible to vote.
Appellant David McCalden filed an eight-claim second amended complaint alleging breach of contract, tortious interference with contract, deprivation of constitutional rights, and violation of California's Unruh Civil Rights Act. The district court dismissed the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. McCalden appeals.
According to the allegations of his complaint, appellant is a member of an organization that engages in research, writing, publication and discussion questioning the historical accuracy of the accepted portrayal of the Holocaust. In July 1984, appellant entered into a contract with appellee California Library Association ("CLA") to rent exhibit space at the association's annual conference scheduled for December 1984 at the Westin Bonaventure Hotel in Los Angeles. Appellant described the exhibit on his application form as one of
In August 1984, appellant entered into an additional written contract with appellee CLA for the presentation of a program entitled "Free Speech and the Holocaust--An overview from several speakers of the severe censorship and intellectual terrorism which inhibits any objective, open discussion of this controversial subject" at the same conference.
After appellant entered into the contracts with CLA, appellees allegedly engaged in a series of acts designed to prevent him from presenting his proposed exhibit and program. He alleges that appellee American Jewish Committee ("AJC") contacted representatives of the CLA and informed them that if appellant's contracts were not cancelled, the conference would be disrupted, property would be damaged, and the CLA would be "wiped out." Appellee City of Los Angeles ("City"), acting through its City Council, passed a unanimous resolution to request that the CLA remove appellant from the conference and to sever the City's participation with the conference. This resolution was allegedly based upon representations of Councilman Yaroslavsky at the specific request of one of his constituents, appellee Rabbi Marvin Hier. In addition, the Los Angeles Police Department informed the Director of the CLA that it had received threats against his life if he allowed appellant to participate in the conference. The City also informed the Director that it would be unable to provide adequate police protection or security measures for the conference.
Appellee Simon Wiesenthal Center, at the direction of Rabbi Hier and with the approval of the AJC, allegedly rented a conference room from appellee Westin Bonaventure Hotel which was adjacent to the room in which appellant's program was scheduled to take place. Appellant alleges that the principal reason Simon Wiesenthal Center rented the adjacent room was to position itself so as to disrupt his program. He also alleges that Westin Bonaventure Hotel knew the rental of the room to the Simon Wiesenthal Center would constitute a breach of its agreement with appellee CLA to provide adequate security.
Appellant alleges that he believes appellees deliberately and in concert caused CLA to cancel its contracts with him, through the application of political pressure and threats.
Initially, we must determine whether we have jurisdiction to hear this appeal. Appellant must file a notice of appeal within 30 days after entry of judgment. Fed.R.App.P. 4(a)(1). A timely notice of appeal is jurisdictional. Allah v. Superior Court, 871 F.2d 887, 890 n. 1 (9th Cir.1989). Appellees claim that appellant's appeal is untimely.
On February 11, 1987, the district court dismissed appellant's first, second, fifth sixth and seventh claims with prejudice. The court granted leave to amend with respect to the fourth claim, but cautioned that it would "impose sanctions for the filing of a frivolous pleading." Excerpts of Record ("ER") at 15. On March 24, 1987, the district court dismissed the fourth claim with prejudice, because appellant had not amended his complaint within the time allowed. On March 31, 1987, appellant stipulated to dismiss without prejudice his third and eighth claims against the city. With this final stipulation, each of his eight claims had been dismissed. On June 19, 1987, appellant filed a motion requesting the court to enter judgment in his case. On July 30, 1987, the court, in an order, refused to enter judgment on the ground that its former orders constituted entry of judgment. Appellant filed a notice of appeal February 10, 1988.
Rule 4(a)(6) provides that the time for appeal does not start running until a judgment is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure, that is, until it is set forth in a separate document and properly entered by the clerk of the court. 1
Appellees argue, and the district court held, that the time for appeal began to run when the court filed the final stipulation on March 31, 1987. The court relied on Anderson v. Allstate Ins. Co., 630 F.2d 677, 680-81 (9th Cir.1980), and Baker v. Limber, 647 F.2d 912, 916 (9th Cir.1981), for authority that a case becomes appealable once all claims against all defendants have been finally dismissed. While it is true that Baker and Anderson are authority for the proposition that appellant's case became appealable on March 31, 1987, and therefore that appellant could have appealed after that date, it does not necessarily follow that the 30-day time period began to run on that date. The time period begins to run only by the entry of a "judgment ... set forth on a separate document." 2 Fed.R.Civ.P. 58. The reason for this rule, so apt in this case, was stated by the Supreme Court in Bankers Trust Co. v. Mallis, 435 U.S. 381, 385, 98 S.Ct. 1117, 1120, 55 L.Ed.2d 357 (1978) (per curiam):
The separate-document requirement was ... intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely.
For purposes of Rule 4(a), in order to make the finality of a case as unequivocal as possible, our circuit has held that the separate-document rule be "mechanically applied," or else a "party will not ordinarily be found to have exceeded any of the time periods [of Rule 4(a) ]." Allah v. Superior Court, 871 F.2d at 890 (quoting Vernon, 811 F.2d at 1276). See also Carter v. Beverly Hills Sav. & Loan Ass'n, 884 F.2d 1186 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990) ().
The district court's various orders did not constitute an "entry of judgment" in this case, because no separate document of judgment was entered. Although the district court's July 30 order refusing to enter judgment gave appellant notice that the district court considered his claims to be finally dismissed, the order also suggested, mistakenly, that appellant's time for appeal had already run. Since the very purpose of Rule 4(a) is to avoid confusion, we cannot hold, Magritte-like, that an order stating that "this is not an entry of judgment" is nonetheless an entry of judgment. Our circuit has held fast to a mechanical application of the "separate judgment" rule, requiring all formalities to be observed. See Carter, supra. Therefore, the time for appeal never began to run, and appellant's appeal is timely.
We review de novo the dismissal of an action under Rule 12(b)(6) for failure to state a claim. Patee v. Pacific Northwest Bell Tel. Co.,...
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