FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 20, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                             FOR THE TENTH CIRCUIT


    MARK A. PALLOTINO, SR.;
    MARK S. PALLOTINO, JR.,

                Plaintiffs-Appellants,

    v.                                                  No. 08-2258
                                            (D.C. No. 1:06-CV-00006-JEC-WDS)
    CITY OF RIO RANCHO; ACTING                           (D. N.M.)
    CHIEF OF POLICE CAPT.
    MICHAEL BAKER; DAVID
    HUBBARD; JEREMY MELTON;
    BRIAN LINK; ROBERTA
    RADOSOVICH; S.W.A.T. TEAM
    COMMANDER LT. SCOTT
    KELLOGG; JOHN OR JANE DOES
    I-X, in their official and individual
    capacities,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY, and EBEL, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Mark A. Pallotino, Sr. and Mark S. Pallotino, Jr. appeal from the district

court’s judgment entered in favor of defendants. Because the district court has

not disposed of all of the federal claims presented by plaintiffs in their complaint,

we must dismiss the appeal for lack of jurisdiction and remand to the district

court for further proceedings.

                                   I. Background

      The main issue relevant to the disposition of this appeal is the treatment of

Count X in plaintiffs’ complaint. Because this is a jurisdictional dismissal, we

are not reaching the merits of the claims brought in the complaint, and we will not

discuss the factual allegations in the complaint, except to the extent that they are

relevant to the consideration of Count X. The bulk of the complaint—the first

eight counts—related to events involving Mr. Pallotino, Sr. The final count,

Count X, was the sole count related to events involving Mr. Pallotino, Jr. 1 With

respect to the first eight counts involving Mr. Pallotino, Sr., the complaint alleged

two state law claims under the New Mexico Tort Claims Act (NMTCA), and six

federal claims under 42 U.S.C. § 1983. The headings for each of the first eight

counts either identified the NMTCA or § 1983. See Aplt. App., Vol. I at 37-44.




1
       There was an error in the numbering of the complaint when plaintiffs
skipped from Count VII to Count IX. See Aplt. App., Vol. I at 43-44. As a
result, there was no Count VIII in the complaint, and there was a total of nine
counts, not ten counts.

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      The heading for the final count was titled: “COUNT X - EXCESSIVE

FORCE, ASSAULT AND BATTERY.” Aplt. App., Vol. I at 44. In this count,

Mr. Pallotino, Jr. asserted he “had a Fourth Amendment right to be free from the

use of excessive force by Rio Rancho Department of Public Safety S.W.A.T. team

members,” that “[the S.W.A.T. team members’] conduct rose to the level of

excessive force when they dragged Plaintiff Jr. from his bedroom at

approximately 2:00 a.m., violently handcuffed his wrists behind his back and

aimed loaded weapons at him during the execution of an arrest warrant for

Plaintiff Sr.,” and the “S.W.A.T. team members’ excessive force against [him]

was unconstitutional, intrusive, and directly and proximately” caused his injuries.

In addition, Mr. Pallotino, Jr. alleged that “[t]he S.W.A.T. team

members’ conduct also constituted assault and battery.” 

moved for partial summary judgment on Counts III, IV, V,

VI, VII, and IX–the federal claims brought by Mr. Pallotino, Sr. The district

court initially granted the motion as to all but one count but the court reversed its

decision when it granted plaintiffs’ motion for reconsideration. In defendants’

second motion for partial summary judgment, they moved for judgment “on the

42 U.S.C. § 1983 claims and related state law claims of plaintiffs in Counts I

through VII and IX of their complaint.” Aplt. App., Vol. II at 308. There was no

mention of Mr. Pallotino, Jr.’s claims or Count X in the defendants’ motion or

their memorandum in support of the motion.

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      In its order on the second summary judgment motion, the district court

noted that defendants had not addressed Count X. See 

The district

court then granted summary judgment in favor of defendants on Counts I, III, IV,

V, VI, VII, and IX. With respect to Counts II and X, the court declined to

exercise supplemental jurisdiction over the state law claims asserted in those

counts, and it remanded those claims to state court. See 

479. The

district court then entered final judgment in favor of defendants on Counts I, III,

IV, VI, VII, and IX of plaintiffs’ complaint. See 

Plaintiffs filed a

notice of appeal from the district court’s judgment.

                                   II. Discussion

      In their opening brief, plaintiffs argue that the district court erred in

entering final judgment without disposing of Mr. Pallotino, Jr.’s § 1983 claim for

excessive force in Count X of the complaint. They ask that their case be

remanded to the district court for this federal claim to be considered. Plaintiffs

contend that Mr. Pallotino, Jr.’s § 1983 claim for excessive force was not

mentioned in defendants’ second motion for summary judgment or the district

court’s order. Defendants respond that plaintiffs’ argument is barred by the

doctrine of judicial estoppel because “the claim was pled as a state law claim, not

one founded on federal law.” Aplee. Br. at 2.




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      In considering whether to apply the doctrine of judicial estoppel, courts

typically consider three factors:

      First, a party’s subsequent position must be clearly inconsistent with
      its former position. Next, a court should inquire whether the suspect
      party succeeded in persuading a court to accept that party’s former
      position, so that judicial acceptance of an inconsistent position in a
      later proceeding would create the perception that either the first or
      the second court was misled. Finally, the court should inquire
      whether the party seeking to assert an inconsistent position would
      gain an unfair advantage in the litigation if not estopped.

Eastman v. Union Pac. R.R. Co., 

, 1156 (10th Cir. 2007)

(quotations, citations, and alterations omitted).

      Defendants argue that the first factor is met because Mr. Pallotino Jr.’s

“newly minted contention that the excessive force cause of action is actually a

federal claim is clearly contradictory to his earlier concession that it is a state law

claim.” Aplee. Br. at 4. But defendants do not offer any record citation to

support this statement, and there does not appear to be any support for

defendants’ position in the record. The introductory paragraph of the complaint is

consistent with plaintiffs’ position that Count X can be read as alleging a

violation under § 1983. That paragraph stated:

      Plaintiffs Mark A. Pallotino, Sr., and Mark S. Pallotino, Jr., . . . bring
      this complaint for defamation of character and malicious abuse of
      process under state tort law, and for violation of their civil rights
      under the Fourth and Fourteenth Amendments to the United States
      Constitution, as provided under 42 U.S.C. §§ 1983 and 1988.




                                          -5-
Aplt. App., Vol. I at 21. Although the pleading of Count X is not the most artful,

it can be read to encompass two separate claims: a federal § 1983 claim for

excessive force in violation of the Fourth Amendment, see Baker v. McCollan,

, 2695 (1979) (“Section 1983 imposes liability for violations of

rights protected by the Constitution”), and a state law claim for assault and

battery. This conclusion is consistent with the heading for Count X

(“EXCESSIVE FORCE, ASSAULT AND BATTERY”) and the language in the

complaint (asserting that Mr. Pallotino, Jr. “had a Fourth Amendment right to be

free from the use of excessive force by Rio Rancho Department of Public Safety

S.W.A.T. team members” and that the “[t]he S.W.A.T. team members’ conduct

also constituted assault and battery”). Aplt. App., Vol. I at 44-45. Plaintiffs did

not take any position contrary to this in the district court. Because defendants

never moved for summary judgment on Count X, there was never an opportunity

for plaintiffs to “concede” that this count only involved a state law claim, as

argued by defendants.

      On the second factor, there is no support for the position that

Mr. Pallotino, Jr., persuaded the district court to treat the excessive force claim as

a state law claim. Again, other than the complaint, Mr. Pallotino, Jr. never had

the opportunity to address Count X because defendants did not move for summary

judgment on that count. Without any briefing on this issue from either party, the

district court sua sponte declined to exercise supplemental jurisdiction over the

                                          -6-
state law claims in Counts II and X. Moreover, it is not clear from the district

court’s order that it was treating all of the claims in Count X as state law claims.

As discussed above, Count X can be read as pleading two claims: a state law

claim for assault and battery and a § 1983 claim for excessive force. The district

court’s order clearly remanded the assault and battery claim in Count X to state

court. It is unclear from the order, however, whether the district court also was

characterizing the excessive force claim in Count X as a state law claim or

whether the court simply failed to address the excessive force claim. In any

event, the district court was not misled by plaintiffs.

      Finally, defendants do not explain how plaintiffs would gain an unfair

advantage if they are not estopped from taking the position on appeal that the

excessive force claim is a federal claim and that the district court erred in

entering judgment without considering it. Defendants failed to move for

summary judgment on Count X so it is undisputed that the merits of the excessive

force claim have not been considered by the district court. The introductory

paragraph to the complaint indicates that Mr. Pallotino, Jr. is bringing a civil

rights claim under 42 U.S.C. § 1983 and the language in Count X asserts that

defendants violated his Fourth Amendment rights by using excessive force. There

is no unfair advantage to Mr. Pallotino, Jr. to have this § 1983 claim adjudicated

by the federal court that has jurisdiction over it, see 28 U.S.C. § 1331 (“The




                                          -7-
district courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.”).

                                   III. Conclusion

      Defendants have not demonstrated that plaintiffs should be judicially

estopped from arguing that the excessive force claim in Count X is a federal claim

that was not ruled on by the district court. We agree with plaintiffs that Count X

can be read as pleading a claim under § 1983 for excessive force in violation of

the Fourth Amendment. We therefore lack appellate jurisdiction over this appeal

because there has been no final decision within the meaning of 28 U.S.C. § 1291.

The district court’s judgment is not a final decision because the court has only

partially disposed of the federal claims before it—Mr. Pallotino, Jr.’s § 1983

claim remains for adjudication. See Orient Mineral Co. v. Bank of China,

, 989-90 (10th Cir. 2007), cert. denied, 

(2008), (“[A]

judgment that does not dispose of all claims is not considered a final appealable

decision under § 1291.” (quotation and alteration omitted)). 2




2
       There is no other basis for appellate jurisdiction. The district court did not
certify the judgment as a final judgment under Rule 54(b) of the Federal Rules of
Civil Procedure, and this is not a proper interlocutory appeal under 28 U.S.C.
§ 1292(b).

                                           -8-
      Accordingly, we DISMISS the appeal for lack of jurisdiction, and

REMAND to the district court for further proceedings consistent with this order

and judgment.

                                                  Entered for the Court



                                                  William J. Holloway, Jr.
                                                  Circuit Judge




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