                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 06 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JERRY DORAN,                                     Nos. 09-55119
                                                      09-55279
               Plaintiff - Appellant,
                                                 D.C. No. 8:04-cv-01125-JVS-AN
  v.

7-ELEVEN, INC. DBA 7-Eleven;                     MEMORANDUM *
SOUTHLAND CORP.,

               Defendants - Appellees.




                    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

          *
             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).
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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