NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

GERALD ERICKSON; DONNA

ERICKSON,

 Plaintiffs - Appellants,

 v.

PNC MORTGAGE, a division of PNC

Bank, N.A., successor in interest by

merger to National City Bank of Indiana;

MCT FINANCIAL, INC., DBA Trustee

Corps; FEDERAL HOME LOAN

MORTGAGE CORPORATION,

 Defendants - Appellees.

No. 12-16802

D.C. No. 3:10-cv-00678-LRHVPC

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Submitted October 10, 2014** 

San Francisco, California

Before: CANBY, W. FLETCHER, and WATFORD, Circuit Judges.

FILED

OCT 17 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 panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
Appellants Gerald and Donna Erickson initiated this litigation after losing

their home through non-judicial foreclosure proceedings. They appeal from the

district court’s order dismissing their action without prejudice for failure to

prosecute. On appeal, the Ericksons challenge various aspects of the district

court’s interlocutory orders, but they do not challenge the dismissal for failure to

prosecute. 

Ordinarily, a district court’s interlocutory orders are reviewable after a final

judgment is issued because they are deemed to merge into the judgment. Am.

Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 897–98 (9th

Cir. 2001). There is an exception to this general rule, however. “[I]nterlocutory

rulings do not merge into a judgment of dismissal without prejudice for failure to

prosecute whether the failure to prosecute is purposeful or is a result of negligence

or mistake.” Ash v. Cvetkov, 739 F.2d 493, 498 (9th Cir. 1984). As we explained

in Ash, important policy considerations underlie application of this exception: “the

sufferance of dismissal without prejudice because of failure to prosecute is not to

be employed as an avenue for reaching issues which are not subject to

interlocutory appeal as of right.” Id. (citing Hughley v. Eaton Corp., 572 F.2d 556

(6th Cir. 1978)); accord Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996)

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(“There is no good reason to allow plaintiff to revive his case in the appellate court

after letting it die in the trial court.”).

Here, the Ericksons do not challenge the factual basis for, or propriety of,

the district court’s dismissal without prejudice for failure to prosecute. 

Additionally, neither before the district court nor before this Court have they made

a showing of good cause for their failure to prosecute after receiving unfavorable

interlocutory rulings from the district court. Al-Torki, 78 F.3d at 1386 (“ If [a

plaintiff] had a good excuse for the failure to prosecute, that would revive the case,

including the appealability of interlocutory orders, but he would first have to

establish that good excuse, either in the district court or on appeal.”). We therefore

uphold the district court’s unchallenged dismissal for failure to prosecute and,

because the merger doctrine does not apply, we decline to reach on appeal the

issues presented by the district court’s interlocutory orders.

In their reply brief, the Ericksons invite this court to construe the district

court’s order of dismissal as a voluntary dismissal with prejudice, as we did in

Omstead v. Dell, Inc., 594 F.3d 1081 (9th Cir. 2010). We decline to do so because

Omstead is distinguishable. Here, the Ericksons proffer neither evidence nor

argument to support a conclusion that the district court abused its discretion in

dismissing their action for failure to prosecute. Similarly, they point to no record

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evidence of conduct evincing a desire for voluntary dismissal with prejudice to

facilitate appellate review of the district court’s interlocutory rulings. See id. at

1084–85 (explaining that the plaintiffs communicated to the district court their

belief that the interlocutory ruling was fatal to their action and their desire for an

order that would permit appellate review of that issue). The Ericksons’ inaction

following the district court’s unfavorable interlocutory rulings is precisely the

conduct discouraged in Ash. 739 F.2d at 497. 

The dismissal of the action without prejudice for failure to prosecute is

AFFIRMED.

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