Aristeo Canelos Avila, an individual v. CHIQUITA FRESH NORTH AMERICA, LLC, a Delaware limited liability company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARISTEO CANELOS AVILA, an
individual,
Plaintiff - Appellant,
v.
CHIQUITA FRESH NORTH AMERICA,
LLC, a Delaware limited liability company
and successor in interest to Chiquita
Frupac, Inc.; et al.,
Defendants - Appellees.
No. 12-56938
D.C. No. 3:11-cv-02863-AJB-KSC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted February 12, 2014
Pasadena, California
Before: PAEZ and NGUYEN, Circuit Judges, and MOTZ, Senior District Judge.**
FILED
APR 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.

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Plaintiff Aristeo Canelos Avila (“Avila”) appeals the district court’s order
granting Defendant Aristeo Alejandro Canelos Guillen’s (“Guillen”) motion to
dismiss for failure to state a claim and forum non conveniens, and denying Avila’s
motion for leave to amend. In denying Avila leave to amend, the district court
determined that, even if Avila’s proposed revisions were successful in curing the
deficiencies in the original complaint, the court would decline to exercise
jurisdiction under the Declaratory Judgment Act. See Brillhart v. Excess Ins. Co.
of Am., 316 U.S. 491, 494, 62 S. Ct. 1173, 1175, 86 L. Ed. 1620 (1942).
We construe the district court’s ruling as a dismissal under Brillhart, and
conclude that the court properly exercised its discretion in dismissing on this
ground. Applying the Brillhart factors, the district court determined that it should
not assert jurisdiction over Avila’s declaratory relief claim because, “[a]t the time
that [Avila] filed this Complaint, there was a proceeding pending in
Mexico—which is still pending—discussing issues relating directly to this
Complaint and involving essentially the same parties.” Moreover, “adjudication of
Plaintiff’s declaratory action could result in duplicative litigation and lead to
inconsistent rulings by this Court and the Mexican court.”
In light of these circumstances, we conclude that the district court did not
abuse its discretion in declining to entertain Avila’s claim for declaratory relief.
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We further conclude that, given the interrelated nature of Avila’s accounting and
equitable indemnity claims and the declaratory relief claim, and the fact that he
was willing to dismiss the former two claims in his amended complaint, Avila’s
accounting and equitable indemnity claims were properly dismissed as well.
The district court did, however, err in dismissing Avila’s action “with
prejudice.” The phrase “dismissal with prejudice” is “synonymous” with “[f]inal
judgment on the merits.” Hells Canyon Pres. Council v. U.S. Forest Serv., 403
F.3d 683, 686 (9th Cir. 2005). Here, the district court clearly did not intend to
finally decide the merits. Instead, it contemplated that Avila would litigate his
claims in Mexico. We remand to the district court with directions to correct the
dismissal order to reflect that dismissal of the complaint is “without prejudice.”
In light of the foregoing, we need not resolve whether the district court erred
in granting Guillen’s motion to dismiss for failure to state a claim and forum non
conveniens.
AFFIRMED in part and REMANDED with instructions.
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