Jerry Doran v. 7-ELEVEN, INC. DBA 7-Eleven; SOUTHLAND CORP.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes these appeals are suitable for**
decision without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY DORAN,
Plaintiff - Appellant,
v.
7-ELEVEN, INC. DBA 7-Eleven;
SOUTHLAND CORP.,
Defendants - Appellees.
Nos. 09-55119
09-55279
D.C. No. 8:04-cv-01125-JVS-AN
MEMORANDUM*
Appeals from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Jerry Doran appeals from the district court’s orders awarding costs to
defendant 7-Eleven, Inc. and denying reconsideration in his action alleging claims
under the Americans with Disabilities Act (“ADA”) and state law. We have
FILED
OCT 06 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-55119 2
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Brown
v. Lucky Stores, Inc., 246 F.3d 1182, 1187 (9th Cir. 2001) (costs); Sch. Dist. No.
1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993)
(reconsideration). We reverse and remand.
The district court dismissed Doran’s ADA claim and concluded that
defendant was not entitled to costs because the claim was not frivolous,
unreasonable, or without foundation. See Brown, 246 F.3d at 1190. The district
court then denied Doran’s request to plead diversity jurisdiction, dismissed
Doran’s state law claims without prejudice to refiling them in federal or state court,
and awarded costs to defendant on these state law claims. The state law claims are
now pending in district court. The district court abused its discretion when it
awarded costs to defendant on the state law claims, because defendant was not a
prevailing party on these claims. See Fed. R. Civ. P. 54(d)(1); cf. Miles v.
California, 320 F.3d 986, 989 (9th Cir. 2003) (defendant was prevailing party
where dismissal eliminated claim from further proceedings in federal court and
thus materially altered the legal relationship of the parties).
Doran’s unopposed request for judicial notice is granted.
REVERSED and REMANDED.

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