Miles v. City of Chandler, 17335.
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Citation | 297 F.2d 690 |
| Docket Number | No. 17335.,17335. |
| Parties | Melvin MILES, Appellant v. CITY OF CHANDLER, a Municipal Corporation, Appellee. |
| Decision Date | 13 December 1961 |
297 F.2d 690 (1961)
Melvin MILES, Appellant
v.
CITY OF CHANDLER, a Municipal Corporation, Appellee.
No. 17335.
United States Court of Appeals Ninth Circuit.
December 13, 1961.
Jack C. Cavness and Roy R. Carson, Phoenix, Ariz., for appellant.
Snell & Wilmer by Mark Wilmer, Phoenix, Ariz., and Harold L. Kautz, City Atty., Chandler, Ariz., for appellee.
Before POPE, JERTBERG and DUNIWAY, Circuit Judges.
PER CURIAM.
In this Arizona personal injury case brought in Federal Court because of diversity of citizenship, judgment of dismissal was entered in favor of the City of Chandler on the ground that the amended complaint upon which the plaintiff elected to stand fails to state a claim against the city upon which relief can be granted.
On August 2, 1960, appellant filed in the District Court his amended complaint against the City of Chandler, appellee, a municipal corporation duly organized and existing under the laws of the State of Arizona, and Bernice I. Calley, the duly appointed, qualified and acting administratrix of the estate of Lenford C. Calley, deceased. By the amended complaint plaintiff seeks to recover judgment against both defendants in the amount of $300,000 for injuries and damages which
On motion of the City of Chandler, judgment of dismissal of the amended complaint was entered in favor of the City of Chandler. The amended complaint insofar as it seeks judgment against the other defendant is still pending in the District Court. The appellant has appealed to this court from the judgment of dismissal.
The District Court did not make the express determination or give the express direction mentioned in Rule 54 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Therefore, the judgment of dismissal as to the appellee was not a final decision within the meaning of Title 28 U.S.C.A. § 1291, and was not appealable. Walter W. Johnson Company v. Reconstruction Finance Corporation, 223 F.2d 101 (9th Cir. 1955); Gilbertson v. City of Fairbanks, 253 F.2d 231, 17 Alaska 458 (9th Cir. 1958); CMAX, Inc. v. Drewry Photocolor Corporation, 295...
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...is reviewable under the abuse of discretion standard); Boer v. Borg-Warner Corp., 364 F.2d 907 (3rd Cir.1966); Miles v. City of Chandler, 297 F.2d 690, 691 (9th Cir.1961); see also Jeanette Sheet Glass Corp. v. United States, 803 F.2d 1576, 1580-81 (Fed.Cir.1986) (only mandamus would lie fr......
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