Plaintiffs-appellants Shirley Wood and Jeff Wood ("Shirley" and "Jeff," or "the Woods") were employed by defendant-appellee Coast Frame Supply, Inc. Defendant-appellee Kenneth Alcorn is President and eighty-five percent shareholder of Coast Frame. The Woods brought suit against Alcorn and Coast Frame for violation of the state wiretapping statute, Cal.Penal Code §§ 630-637, the federal wire-tapping statute, 18 U.S.C. §§ 2510-2520, common law invasion of privacy, intentional infliction of emotional distress, and fraud.
Defendants moved for summary judgment. During oral argument on December 5, 1983 the district judge indicated on the record that he intended to grant summary judgment for defendants on all but the fraud cause of action and Jeff's claim for intentional infliction of emotional distress. The courtroom deputy clerk prepared a minute order which was entered on December 6, 1983, and reflected the district judge's oral decision. The clerk's minute order stated that a memorandum of decision and an order would be forthcoming. At a hearing on February 13, 1984, the district judge stated that the memorandum decision and order on the summary judgment would be in conformance with the position stated during the December 5, 1983 hearing. However, after discussion with counsel, the district judge modified his position and ordered summary judgment granted on Jeff's emotional distress claim. No memorandum of decision or signed order appears in the record, nor does the record reflect that the clerk entered summary judgment in favor of defendants on such claims.
On April 2, 1984, the district judge ruled orally that the remaining cause of action for fraud was remanded to state court for lack of federal jurisdiction, and requested the Woods' counsel to prepare the formal order. No such remand order appears in the record, nor does the record reveal entry of any final judgment.
The Woods appeal the district court's rulings granting summary judgment. Defendants object to the appeal arguing that there is no appellate jurisdiction over the minute orders issued by the courtroom deputy clerk. We agree with defendants that a courtroom deputy clerk's minute order evidencing the district court's oral decision is not a final appealable order.
Id. at 122-23 (quoting Burke v. Commissioner, 301 F.2d 903 (1st Cir.1962) (per curiam) ).
The lack of a final written judgment entered by the clerk of the district court is not a technicality. A final written judgment
The appeal is DISMISSED. We remand to the district court for entry of a written judgment in this case. In the event either party files a timely appeal, the briefs and excerpt of record on file shall serve for the new appeal, and the appeal shall be assigned to this panel. The panel will then decide the case without further oral argument.