Ascarie et al v. Nationwide Mutual Insurance Company

Filing 97

ORDER DENYING 85 REQUEST TO VACATE DISMISSAL. Signed by Judge JEFFREY S. WHITE on 9/23/13. (jjoS, COURT STAFF) (Filed on 9/23/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SHAYON ASCARIE, et al.,

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ORDER DENYING REQUEST TO
VACATE DISMISSAL

Plaintiffs,
v.

(Docket No. 85)
For the Northern District of California

United States District Court

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No. C 12-01572 JSW

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NATIONWIDE MUTUAL INSURANCE
COMPANY,

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Defendant.
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On July 17, 2013, the Court received a letter from Plaintiff Mahmoud Ascarie (“Dr.

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Ascarie”), who is proceeding pro se, which the Court construed as a motion to vacate the

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dismissal entered in this case on May 17, 2013. The Court has considered all of the papers the

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parties have submitted in support of their position on this request, relevant legal authority, and

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the record in this case, and it finds the matter suitable for disposition without oral argument. See

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N.D. Civ. L.R. 7-1(b).

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The parties voluntarily dismissed this case pursuant to Federal Rule of Civil Procedure

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41(a)(1)(A)(ii). (Docket No. 86.) Dr. Ascarie is the only plaintiff who now seeks to vacate the

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dismissal. “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required,

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the parties are left as though no action had been brought, the defendant can’t complain, and the

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district court lacks jurisdiction to do anything about it.” Commercial Space Management v.

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Boeing Co., Inc., 193 F.3d 1074, 1078 (9th Cir. 1999); but see Kalt v. Hunter, 66 F.3d 1002,

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1004 (9th Cir. 1995) (noting that some courts have held that a voluntary dismissal is an order,

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judgment or proceeding from which relief under Federal Rule of Civil Procedure 60(b) can be

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granted). Accordingly, the Court DENIES Dr. Ascarie’s request to vacate the dismissal on this

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basis.

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To the extent the Court would have jurisdiction to consider the request pursuant to

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Federal Rule of Civil Procedure 60(b), the Court also concludes that the request should be

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denied. Rule 60(b)(6) permits a court to grant relief from a judgment “for any other reason that

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justifies relief.” A Rule 60(b) motion must be made within a “reasonable time.” Rule 60(c)(1).

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Dr. Ascarie has not set forth facts showing “extraordinary circumstances” that would warrant

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relief under Rule 60(b)(6). See Pioneer Investment Services Co. v. Brunswick Associates Ltd.
Partnership, 507 U.S. 380, 393 (1993); United States v. Alpine Land & Reservoir Co., 984 F.2d

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For the Northern District of California

United States District Court

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1047, 1049 (9th Cir. 1993). Accordingly, the Court also DENIES the request on that basis.

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The only other provision of Rule 60(b) that might apply to this case is Rule 60(b)(3)

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permits a court to vacate an order based on “fraud (whether previously called intrinsic or

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extrinsic), misrepresentation, or misconduct by an opposing party.” The Court concludes that

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he has not met his burden to show that the stipulation of dismissal was procured by fraud or by

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misrepresentation by Defendant’s counsel or that the alleged fraud precluded him from “fully

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and fairly presenting his case” against Defendant. See Keys v. Dunbar, 405 F.2d 955, 957-58

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(9th Cir. 1969). Accordingly, the Court DENIES the request on that basis as well.

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Defendant has requested that the Court award attorneys’ fees, pursuant to Federal Rule

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of Civil Procedure 11. Defendant has not complied with Rule 11(c)(2), and its request is denied

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on that basis. Further, the Court declines to issue an Order to Show Cause to Dr. Ascarie to

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show cause why sanctions should be imposed under Rule 11. The Court also, in the exercise of

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its discretion, declines to grant the request for attorneys’ fees as part of its inherent powers.

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IT IS SO ORDERED.
Dated: September 23, 2013
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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ASCARIE ET AL et al,

Case Number: CV12-01572 JSW

Plaintiff,

CERTIFICATE OF SERVICE

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v.
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NATIONWIDE MUTUAL INSURANCE
9 COMPANY et al,
Defendant.

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For the Northern District of California

United States District Court

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12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
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That on September 23, 2013, I SERVED a true and correct copy(ies) of the attached, by
14 placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an
15 inter-office delivery receptacle located in the Clerk's office.
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Sharon Ascarie
18 Mahmoud Ascarie
Michael Ascarie
19 1000 Empey Way
San Jose, CA 95128
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Shadi Ascarie
21 12236 NE 131 St. Way
Apt. B302
22 Kirkland, WA 98034
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Dated: September 23, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk

For the Northern District of California

United States District Court

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