Eleanor RIGGIO; Chester Wise; Dee Adams; Barry Mann; Arthur Shaw; James Stickle; Frank Acuna, on behalf of themselves and all employees similarly situated, Plaintiffs-Appellants, v. SERVICE CORPORATION INTERNATIONAL; SCI Funeral and Cemetery Purchasing Cooperative Incorporated; SCI Western Market Support Center LP, aka SCI Western Market Support Center Incorporated; Jane D. Jones; Gwen Petteway; Thomas Ryan; SCI 401K Retirement Savings Plan; Julie Douglas, Defendants-Appellees, 476 F. App'x 135

MEMORANDUM The district court erred in applying res judicata to dismiss this case because the Stickle action in which the claims at issue were raised had not yet reached final judgment. See Stewart v. U.S. Bancorp, 297 F.Bd 953, 956 (9th Cir.2002). Even assuming the order deeming those claims waived constituted an adjudication on the merits, it would have been an interlocutory order that — absent certification under Rule 54(b) — was not yet entitled to res judicata effect. See Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519,1525 (9th Cir.1987); see also Clausen Co. v.

Dynatron/Bondo Corp., 889 F.2d 459, 466 (3d Cir.1989) (district court order disposing of second count of infringement was interlocutory because first count was still pending and thus had no res judicata effect); Avondale Shipyards, Inc. v. Insured Lloyd’s, 786 F.2d 1265, 1270 (5th Cir.1986) (noting that “partial

summary judgment orders lack the finality necessary for preclusion”). Appellees argue for the first time on appeal that the case should be dismissed as duplicative of the ongoing Stickle action under Adams v. California Department of Health Services, 487 F.3d 684 (9th Cir.2007). Although we held in Adams that the district court had not abused its discretion in dismissing the action as duplicative, we recognized that it also had discretion to consolidate the two actions or to stay or enjoin proceedings. See id. at 692.

Here, because the district court dismissed the case under res judicata, it has not yet decided whether to exercise its discretion under Adams. Given subsequent developments in the Stickle action, we believe it is prudent to allow the district court to decide whether to exercise its discretion in the first instance. Accordingly, without expressing any view as to the proper result, we remand the case to the district court to decide whether to allow the action to proceed or, under Adams, to dismiss the action, consolidate it with the Stickle action, or stay or enjoin proceedings. VACATED AND REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.