Miles v. City of Chandler, 17335.
| Decision Date | 13 December 1961 |
| Docket Number | No. 17335.,17335. |
| Citation | 297 F.2d 690 |
| Parties | Melvin MILES, Appellant v. CITY OF CHANDLER, a Municipal Corporation, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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 plaintiff alleges he sustained as a result of a collision which occurred while he was riding as a passenger in a pickup truck belonging to the City of Chandler which was negligently operated by Lenford C. Calley, now deceased, the superintendent of streets of the city while acting within the course and scope of his employment in the maintenance and repair of the streets of the city.
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 F.2d 695 (9th Cir. 1961).
Attention of counsel is called to the fact that Rule 54(b) was amended effective July 19, 1961. The rule as amended reads as follows:
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