Ascarie v. The County of Santa Clara et al

Filing 97

Order by Magistrate Judge Virginia K. DeMarchi denying 93 Motion to Set Aside Dismissal. (vkdlc1S, COURT STAFF) (Filed on 10/7/2019)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 MAHMOUD ASCARIE, 8 Plaintiff, 9 ORDER DENYING MOTION TO SET ASIDE DISMISSAL v. 10 THE COUNTY OF SANTA CLARA, et al., 11 United States District Court Northern District of California Case No.16-cv-05031-VKD Re: Dkt. No. 93 Defendants. 12 13 14 Pursuant to Federal Rule of Civil Procedure 60(b), pro se plaintiff Mahmoud Ascarie 15 moves to set aside the stipulated dismissal of this action. Dkt. Nos. 91, 93. Defendants County of 16 Santa Clara (“the County”), Jim Lanz, MaryEllen Luna, Daren Wardell, Michael Harrison, and 17 Joseph Takacs oppose the motion. Dkt. No. 94. Pursuant to Civil Local Rule 7-1(b), the Court 18 finds Mr. Ascarie’s motion suitable for decision without oral argument. Based on the parties’ 19 written submissions, the Court denies Mr. Ascarie’s motion to reopen this action. 20 I. 21 BACKGROUND Mr. Ascarie filed this action on August 31, 2016 pursuant to 28 U.S.C. § 1983, asserting 22 that defendants violated his constitutional rights to free speech, equal protection, and due process 23 under the First and Fourteenth Amendments by discriminating against him based on his race in the 24 process of obtaining permits for use of certain property located in Gilroy, California. Dkt. No. 1. 25 The parties eventually agreed to resolve their dispute and stipulated to dismissal without prejudice 26 pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) on September 21, 2018. Dkt. No. 90. 27 Although a stipulated dismissal under Rule 41(a)(1)(A)(ii) does not require a Court order to be 28 effective, the Court ordered the action dismissed. Dkt. No. 91. On August 19, 2019, nearly a year later, Mr. Ascarie filed a motion to set aside the 1 2 stipulated dismissal. Dkt. No. 93. 3 II. 4 DISCUSSION “Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of 5 his case, under a limited set of circumstances . . . .” Gonzalez v. Crosby, 545 U.S. 524, 528 6 (2005). Like Rule 59(e), Rule 60(b) relief is extraordinary and will not apply to a showing which 7 does not justify its application. See Stevens v. ITT Sys., Inc., 868 F.2d 1040, 1041 n.1 (9th Cir. 8 1989). “Motions for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) are 9 committed to the sound discretion of the trial judge.” Blair v. Shanahan, 38 F.3d 1514, 1518 (9th 10 United States District Court Northern District of California 11 Cir. 1994) (citation omitted). The Court construes Mr. Ascarie’s motion as one brought pursuant to Rule 60(b)(1), as he 12 cites “mistake, inadvertence, excusable neglect . . . [and] surprise[]” as the basis for setting aside 13 the dismissal of the action. Dkt. No. 93 at 2. Mr. Ascarie asserts that the mistake that occurred 14 was his decision to “trust[] defendants.” Id. The remainder of his motion consists primarily of 15 descriptions of Mr. Ascarie’s attempts to seek new permits and resolve past violations, and what 16 he perceives as uncooperative and retaliatory behavior from the County and its employees. Id. at 17 2–3. That Mr. Ascarie now regrets having dismissed his case is not sufficient mistake, 18 inadvertence, surprise, or excusable neglect for setting aside the dismissal. Fuchs v. State Farm 19 Gen. Ins. Co., 765 F. App’x 223, 224 (9th Cir. 2019) (“A party’s regret is not the type of ‘mistake’ 20 that provides relief under Rule 60(b)(1).”). 21 Alternatively, Mr. Ascarie seeks to amend the claims in the dismissed action to include 22 new allegations related to new permits and the potential demolition of buildings on the property. 23 Defendants dispute a number of Mr. Ascarie’s new allegations and assert that he lacks standing 24 because he is not the legal owner of the property at issue or that owner’s agent. Dkt. No. 94 at 4. 25 Additionally, defendants assert that the property is now the subject of an ongoing action in 26 California state court that the County filed concerning state law, ordinance code, and zoning 27 ordinance violations. Dkt. No. 94, Ex. B. Mr. Ascarie filed two submissions in reply to 28 defendants’ opposition brief, and he did not dispute those facts in either of those submissions. 2 1 Dkt. Nos. 95, 96. As explained above, Mr. Ascarie has identified no proper basis to reopen this action, 2 3 whether to pursue his original claims or to amend those claims. Moreover, his motion recites 4 allegations that appear to concern state or local permits and alleged violations and other matters 5 that involve state and local law, including matters that may already be the subject of an existing 6 state court proceeding. In any event, the dismissed action is not the appropriate vehicle for Mr. 7 Ascarie to seek relief as to these matters. Instead, he may initiate a new action in the appropriate 8 forum with jurisdiction over his claims. 9 III. For the foregoing reasons, Mr. Ascarie’s Rule 60(b) motion for relief from judgment is 10 United States District Court Northern District of California 11 12 13 CONCLUSION denied. IT IS SO ORDERED. Dated: October 7, 2019 14 15 VIRGINIA K. DEMARCHI United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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