Oregon Investors IX LP v. City of Merced

Full title: OREGON INVESTORS IX LP, an Oregon limited partnership…

Court: United States Court of Appeals, Ninth Circuit

Date published: May 28, 2003

64 F. App'x 656 (9th Cir. 2003)

Opinion

64 Fed.Appx. 656 (9th Cir. 2003) OREGON INVESTORS IX LP, an Oregon limited partnership, Plaintiff--Appellant, v. CITY OF MERCED; Barbara Sullivan, Mayor Pro Tempore of the City of Merced and Vice Chairman of the Merced City Council and Commissioner of the Redevelopment Agency; Stanley Thurston, Merced City Council Member; Hubert Walsh, Merced City Council Member, Defendants--Appellees. No. 02-15447. D.C. No. CV-01-06413-AWI. United States Court of Appeals, Ninth Circuit. May 28, 2003

Argued and Submitted April 2, 2003.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Eastern District of California, Anthony W. Ishii, District Judge, Presiding.

Before B. FLETCHER, KOZINSKI and TROTT, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

The city council neither approved nor denied the project; its tie vote represented no action at all. See, e.g., Fisher v. Bd. of Police Comm'rs, 236 Cal.App.2d 298, 301, 45 Cal.Rptr. 859 (1965) ("[T]he action taken by the members did not constitute an effective exercise of discretion by the board as required by the charter...."). Appellant has not shown the council is unwilling to reconsider the project, and we can only speculate what action the council would take upon additional votes. Appellant's claim is thus not ripe and, for that reason (not abstention), was properly dismissed. We therefore vacate the district court's order and remand the case for entry of an order dismissing without prejudice.

VACATED AND REMANDED.