Huey v. Teledyne, Inc.

PER CURIAM: This matter is before us again after remand. The history of this litigation is fully chronicled in Huey v. Teledyne, Inc. (Huey I), 608 F.2d 1234 (9th Cir. 1979). To summarize the facts, Huey’s action against Tel-edyne, Inc. was dismissed with prejudice by the district court in 1977 for want of prosecution. Huey appealed to this court, .seeking review of the dismissal and review of the district court’s order denying class certification. In Huey I, we' held that the dismissal was a proper exercise of the district court’s discretion and that the interlocutory order denying class certification did not merge into the dismissal for failure to prosecute so as to be re viewable on appeal. We remanded the case, however, for technical *622 correction of the order of dismissal and because we had made an exception to the previously stated rule that all interlocutory orders merge into the final judgment. The parties were allowed to move the district court to reconsider its order of dismissal and the district judge was given the discretion either to enter a new order or take whatever other action he deemed appropriate. On remand, after reconsideration of its previous order, the district court entered a new order dismissing Huey’s action with prejudice. Huey appeals a second time, again challenging the dismissal and seeking review of the order denying class certification. In accordance with our decision in Huey I, the district court corrected its previous order dismissing Huey’s action for failure to prosecute. Because the dismissal was proper save for a technicality in the order, we find no abuse of discretion in the district court’s entry of a new order dismissing Huey’s action on the same ground. For the reasons stated in our opinion in Huey I, the order denying class certification is not reviewable. Accordingly, the judgment of the district court is AFFIRMED.