                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 20 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


DEBORAH SANZARO; MICHAEL                         No. 12-15067
SANZARO,
                                                 D.C. No. 2:11-cv-01143-PMP-RJJ
               Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

ARDIENTE HOMEOWNERS
ASSOCIATION LLC; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                             Submitted March 12, 2013**

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Deborah and Michael Sanzaro appeal pro se from the district court’s

judgment dismissing their action under 42 U.S.C. § 1983, the Americans with



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Disabilities Act (“ADA”), and the Fair Housing Act (“FHA”) for failure to state a

claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Arizona v. Harkins Amusement Enters., Inc., 603 F.3d 666, 669 (9th Cir. 2010).

We affirm in part, vacate in part, and remand.

      The district court properly dismissed the Sanzaros’ Fourteenth Amendment

claim because the Sanzaros failed to allege that any defendant is a state actor. See

Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997) (explaining the

requirements of a claim for relief under § 1983).

      The district court concluded that the Sanzaros failed to state a claim under

the ADA because the Ardiente Homeowners Association clubhouse is a private

property. However, private clubs and facilities are exempt from the ADA only if

they are “not in fact open to the public[.]” 42 U.S.C. § 2000a(e); see also 42

U.S.C. § 12187 (the ADA does not apply to private clubs and facilities exempted

by § 2000a). The Sanzaros’ allegations that Deborah Sanzaro is disabled within

the meaning of the ADA, that the Association denied her disability-related

accommodations at the clubhouse, and that the Association allows the public to use

the clubhouse for a fee are sufficient to state a claim under the ADA. See Harkins

Amusement Enters., 603 F.3d at 670 (explaining the requirements of an ADA

claim).


                                          2                                      12-15067
      Dismissal of the Sanzaros’ FHA claim as duplicative of a state court action

was improper because the other action is not in the same court as the present action

and does not include the Sanzaros’ FHA claim. See Adams v. Cal. Dep’t of Health

Servs., 487 F.3d 684, 688-89 (9th Cir. 2007) (a suit is duplicative, and therefore

constitutes impermissible claim splitting, if the court, causes of action, relief

sought, and parties are the same); see also Noel v. Hall, 341 F.3d 1148, 1159 (9th

Cir. 2003) (“[O]verlapping or even identical federal and state court litigation may

proceed simultaneously, limited only by doctrines of abstention and comity[.]”).

      The district court did not abuse its discretion in denying the Sanzaros’

motions for relief from judgment because the Sanzaros failed to establish fraud,

misrepresentation, or misconduct by the opposing party under Fed. R. Civ. P.

60(b)(3). See Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d

1255, 1262-63 (9th Cir. 1993) (reviewing for an abuse of discretion and setting

forth grounds for relief from judgment).

      The district court did not abuse its discretion in denying the Sanzaros’

motions for recusal because those motions were untimely. See E. & J. Gallo

Winery v. Gallo Cattle Co., 967 F.2d 1280, 1294-95 (9th Cir. 1992) (reviewing for

an abuse of discretion and concluding that a motion for recusal made after entry of

judgment is presumptively untimely).


                                            3                                       12-15067
      The Sanzaros’ contentions that the district court erred in considering

defendants’ allegedly late pleadings and the arbitration award are unpersuasive.

      The Sanzaros’ motion asking this court not to consider defendants’

answering brief and their request that the case be remanded to a different district

court judge are denied.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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