Assem Abulkhair v. Google LLC

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 20-1017

__________

ASSEM A. ABULKHAIR,

Appellant

v.

GOOGLE, LLC; LAWRENCE EDWARD PAGE;

SERGEY MIKHAYLOVICH BRIN

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2:17-cv-07217)

District Judge: Honorable Esther Salas

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 4, 2021

Before: AMBRO, PORTER and SCIRICA, Circuit Judges

(Opinion filed January 13, 2021)

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OPINION*

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PER CURIAM

Assem Abulkhair appeals pro se from the District Court’s order, entered

December 4, 2019, denying his motion to “restore” his previously adjudicated civil

action. For the reasons that follow, we will affirm that order.

I.

In 2017, Abulkhair filed a pro se complaint in the District Court against Google

LLC (“Google”) and its two co-founders. The complaint “revolved around allegations

that [the defendants] tampered with, blocked access to, and ultimately disabled a free

email account that [Abulkhair] had obtained from Google in 2014.” Abulkhair v. Google

LLC, 738 F. App’x 754, 756 (3d Cir. 2018) (per curiam). “In light of these allegations,

Abulkhair sought ‘not less than’ $100 billion in damages and various other relief.” Id.

Google subsequently moved to dismiss the complaint pursuant to Federal Rules of Civil

Procedure 8(a)(2) and 12(b)(6). In March 2018, the District Court granted that motion

and dismissed the complaint, in its entirety, without prejudice to Abulkhair’s ability to

file an amended complaint within 45 days. But instead of filing an amended complaint,

Abulkhair chose to file a notice of appeal challenging the District Court’s dismissal order.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

2

We exercised jurisdiction over that appeal, noting that the District Court’s

dismissal order constituted a final order under 28 U.S.C. § 1291 because Abulkhair had

not filed an amended complaint within the time provided by the District Court. See

Abulkhair, 738 F. App’x at 756 n.1 (citing Batoff v. State Farm Ins. Co., 977 F.2d 848,

851 n.5 (3d Cir. 1992)). We then summarily affirmed that dismissal order. See id. at

756-57. In doing so, we found unpersuasive Abulkhair’s argument that the presiding

District Judge should have recused herself. See id. at 757 n.3. Abulkhair later petitioned

for a writ of certiorari, but the Supreme Court denied that petition in March 2019.

In November 2019, Abulkhair returned to the District Court and filed a document

titled “Motion to Restore Case.” In that two-page motion, he appeared to reiterate

allegations and arguments from his complaint and appeal. Additionally, he noted that his

complaint had been dismissed without prejudice, and he requested that the case “be

restored by a new qualified judge.” (Dist. Ct. docket # 24, at 2.) On December 4, 2019,

the presiding District Judge entered an order denying Abulkhair’s motion. She explained

that, to the extent that the motion could be construed as requesting relief under Federal

Rule of Civil Procedure 60, that filing was untimely and “fails to raise any of the six

enumerated grounds warranting such relief.” (Dist. Ct. Order entered Dec. 4, 2019, at 2

(citing Fed. R. Civ. P. 60(b)(1)-(6)).) She further explained that, to the extent that the

motion could be construed as requesting some other form of relief, such relief was not

warranted either. This timely appeal followed.

II.

3

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s December 4, 2019 order for abuse of discretion. See Coltec Indus.,

Inc. v. Hobgood, 280 F.3d 262, 269 (3d Cir. 2002) (reviewing denial of Rule 60(b)

motion under this standard); see also Securacomm Consulting, Inc. v. Securacom Inc.,

224 F.3d 273, 278 (3d Cir. 2000) (reviewing denial of motion to recuse under this

standard).

Pursuant to Federal Rule of Civil Procedure 60(b), a district court may relieve a

party from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to

move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing

party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or

discharged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospectively

is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b); see also United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003)

(explaining that “a Rule 60(b) motion may not be used as a substitute for an appeal”).

4

We agree with the District Court that none of those reasons is present in this case,1 and

that Abulkhair’s “Motion to Restore Case” failed to establish that he was entitled to any

other relief.2 Furthermore, there was no reason for the presiding District Judge to recuse

herself from ruling on that motion. See 28 U.S.C. § 455 (setting forth standards for

recusal).

In light of the above, we will affirm the District Court’s December 4, 2019 order.3

1

We need not decide whether Abulkhair’s “Motion to Restore Case” constituted an

untimely Rule 60(b) motion.

2

As indicated above, although the District Court’s March 2018 order dismissed

Abulkhair’s complaint without prejudice to his ability to file an amended complaint

within 45 days, he elected not to take advantage of that opportunity. The mere fact that

the March 2018 order used the phrase “without prejudice” did not give Abulkhair the

right to reopen his case more than 18 months later.

3

We hereby grant Appellees’ request for leave to file an appendix consisting of a copy of

Abulkhair’s “Motion to Restore Case” and the District Court’s December 4, 2019 order.

5