Opinion
No. C 13-00162 JSW
05-08-2013
ISAAC KAVALAN, Plaintiff, v. ATTORNEY NIKKI CLARK, and COMMISSIONER THOMAS J. NIXON, et al., Defendants.
NOT FOR PUBLICATION
ORDER DENYING SECOND EX
PARTE APPLICATION TO
VACATE THE ORDER AND
JUDGMENT OF DISMISSAL OR,
IN THE ALTERNATIVE, FOR
LEAVE TO AMEND
(Docket No. 44)
This matter comes before the Court upon consideration of the ex parte application to vacate the order and judgment of dismissal or, in the alternative, for leave to amend filed by Plaintiff, Isaac Kavalan ("Mr. Kavalan"). On April 16, 2013, the Court granted Defendants' motions to dismiss and it concluded that it lacked jurisdiction over this matter. The Court also found that even if it had jurisdiction, Mr. Kavalan had failed to state a claim against the named defendants based on the principles of quasi-judicial and judicial immunity. (Docket No. 32.) On April 25, 2012, Mr. Kavalan moved to vacate the judgment, pursuant to Federal Rules of Civil Procedure 60(b)(1) and 60(b)(4) and, in the alternative, asked for leave to amend his complaint to name the Superior Court of the State of California, Regina Thomas and Phillip Montes.
On April 30, 2013, the Court granted, in part, and denied, in part, that motion. The Court denied the motion to vacate the judgment to the extent it asked to vacate the order dismissing the claims against Commissioner Nixon and Ms. Clark. The Court did, however, grant Mr. Kavalan leave to amend his complaint to name Ms. Thomas and Mr. Montes as Defendants. (See Docket No. 43.)
On May 2, 2013, Mr. Kavalan filed a second ex parte motion to vacate the Order entered on April 30, 2013, and he again asks the Court to revisit its decision to dismiss the claims against Commissioner Nixon and Ms. Clark, and asks for leave to amend his claims against those Defendants. For the reasons previously stated in the Order granting the motion to dismiss, and in the Order denying the first ex parte motion for relief from judgment, the Court DENIES Mr. Kavalan's second ex parte motion.
If Mr. Kavalan wishes to file an amended complaint on the terms set forth in the Court's April 30, 2013 Order, he may do so by May 24, 2013. If Mr. Kavalan does not file an amended complaint by that date, the Court shall dismiss the case with prejudice and shall enter judgment.
The Court again advises Mr. Kavalan that the Handbook for Pro Se Litigants, contains helpful information about proceeding without an attorney, is available through the Court's website or in the Clerk's office. The Court also advises Mr. Kavalan that he also may wish to seek assistance from the Legal Help Center. Mr. Kavalan may call the Legal Help Center at 415-782-9000, extension 8657, or sign up on the 15th Floor of the Courthouse, Room 2796, for a free appointment with an attorney who may be able to provide basic legal help, but not legal representation.
IT IS SO ORDERED.
__________________________
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
ISAAC KAVALAN, Plaintiff,
v.
ATTORNEY NIKKI CLARK et al, Defendant.
Case Number: CV13-00162 JSW
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 8, 2013, I SERVED a true and correct copy(ies) of the attached, by 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 inter-office delivery receptacle located in the Clerk's office. Isaac Kavalan
5622 Buchanan Place
Fremont, CA 94538
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk