City of Spokane v. World Wide Video of Washington, Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF SPOKANE,
Plaintiff - Appellee,
v.
WORLD WIDE VIDEO OF
WASHINGTON, INC.,
Defendant - Appellant.
No. 08-35508
D.C. No. 2:05-cv-00139-RHW
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted July 9, 2009
Seattle, Washington
Before: BEEZER, O’SCANNLAIN and KLEINFELD, Circuit Judges.
In 2005, the City of Spokane filed a complaint in state court, alleging that
World Wide Video of Washington, Inc., was operating its stores in violation of a
local zoning ordinance. After World Wide Video counterclaimed that the
ordinance violated the First and Fourteenth Amendments, the case was removed to
FILED
MAY 18 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
federal district court. The parties subsequently agreed to a court-ordered consent
decree. In 2007, however, the City moved to vacate the decree under Federal Rule
of Civil Procedure 60(b). The district court granted the City’s motion and vacated
the decree. World Wide Video timely appeals the district court’s grant of the
City’s Rule 60(b) motion as well as the court’s denial of World Wide Video’s
motion for reconsideration.
We lack jurisdiction to hear this appeal. The district court’s grant of the
City’s Rule 60(b) motion was an interlocutory order. See Ballard v. Baldridge,
209 F.3d 1160, 1161 (9th Cir. 2000). Under 28 U.S.C. § 1292(a)(1), this court has
jurisdiction over appeals from interlocutory orders of the district court “granting,
continuing, modifying, refusing or dissolving injunctions, . . . except where a direct
review may be had in the Supreme Court.” Although the district court’s grant of
the City’s Rule 60(b) motion did have the effect of dissolving an injunction, see
Thompson v. Enomoto, 815 F.2d 1323, 1326 (9th Cir. 1987), the Supreme Court
has held that an appeal under § 1292(a)(1) may be heard only if a litigant can also
show that the interlocutory order “might have a ‘serious, perhaps irreparable,
consequence,’ and that the order can be ‘effectually challenged’ only by immediate
appeal,” Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981). World Wide Video

-- 2 of 4 --

We express no opinion on whether World Wide Video could have made1
the required showings. Here, however, World Wide Video did not even attempt to
make them.
3
has made neither showing here. Accordingly, we must dismiss this appeal for lack1
of jurisdiction. See Thompson, 815 F.2d at 1327.
Should there be further proceedings below, we urge the district court to
reevaluate whether it has subject-matter jurisdiction, given that the original case
has been reopened and the City’s complaint asserts only state-law claims. See 28
U.S.C. § 1331; United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1376
(2010) (“Rule 60(b) . . . provides an exception to finality that allows a party to seek
relief from a final judgment, and request reopening of his case, under a limited set
of circumstances.” (internal quotation marks and citations omitted)); Holmes
Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (“[A]
counterclaim—which appears as part of the defendant’s answer, not as part of the
plaintiff’s complaint—cannot serve as the basis for ‘arising under’ jurisdiction.”);
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“The presence or absence
of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’
which provides that federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff’s properly pleaded complaint.”); Franchise
Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 10 n.9 (1983)

-- 3 of 4 --

4
(“The well-pleaded complaint rule applies to the original jurisdiction of the district
courts as well as to their removal jurisdiction.”).
DISMISSED.

-- 4 of 4 --