Opinion
CASE NO. C10-5410-RSM-MAT.
March 25, 2011
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court upon Defendants' Objections to the Report and Recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge (Dkt. #41). For the reasons set forth below, the Court adopts the Report and Recommendation ("R R"), dismissing Plaintiff's complaint with respect to Defendant David Haynes, denying dismissal of Plaintiff's complaint with respect to Defendants Alan Baalaer and Josh Vivet, and striking the remaining motions from the calendar.
Plaintiff proceeds pro se and in forma pauperis. On October 14, 2010, Defendants moved to dismiss Plaintiff's complaint on the basis of the claim splitting doctrine (Dkt. #27). Defendants argued that the instant action was duplicative of Plaintiff's earlier filed action, Battle v. Haynes, C09-818-RAJ. See Adams v. California Department of Health Service, 487 F.3d 684 (9th Cir. 2007). While acknowledging that it was "admittedly a close call," Judge Theiler concluded that "the two actions do not arise out of the same transactional nucleus of facts and that they are not the same for purposes of the duplicative action test with respect to defendants Baalaer and Vivet." Dkt. #40 at 12. Concluding that the claim splitting doctrine did apply to Defendant Haynes, Judge Theiler recommended dismissal Defendant Haynes from the action.
Defendants filed Objections to Judge Theiler's R R, in which they argued that the R R did not take into account the analogous nature of Adams v. California and the case at bar; did not appropriately apply the authority of Adams; did not apply the proper weight to the fourth factor of the transaction test — whether the suit arises out of the same transactional nucleus of facts; failed to acknowledge the fact that Plaintiff could have and should have brought claims against Officers Baalaer and Vivet in his first suit; and failed to take into account the costs of piecemeal litigation. Dkt. #41. Plaintiff filed a Response to Defendants' Objections in which he did not challenge Judge Theiler's R R. Dkt. #44. Plaintiff additionally requests that Defendants' Objections be stricken for failure to properly serve Plaintiff. Id.
With respect to service, the Court notes Plaintiff's objections to Defendants' service of process and admonishes Defendants to ensure that, in the future, all motions are properly served upon the Plaintiff according to the Local Rules and Federal Rules of Civil Procedure. However, because Defendants did not have the opportunity to respond to Plaintiff's request that the Objections be stricken on the basis of improper service, the Court DENIES Plaintiff's motion to strike Defendants' Objections.
The Court now turns to Defendants' Objections. When reviewing a Magistrate Judge's Report and Recommendation, this Court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate." 28 U.S.C. § 636(b)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). In addition, courts liberally construe pleadings of pro se litigants, see Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987), and seek to avoid denying pro se litigants a hearing on the merits due to ignorance of procedural technicalities, see Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
With respect to Defendants' contention that the R R did not account for the analogous procedural history of this case and that of Adams, the Court notes that the two cases, while similar in many respects, are also crucially dissimilar. The Plaintiff in Adams sought to amend her complaint to add additional defendants well after the discovery deadline had passed. 487 F. 3d at 687. Upon being denied leave to amend on the basis that it would be prejudicial to the defendants at such a late date, the Adams plaintiff then filed a new lawsuit in which she named additional defendants and added additional causes of action. Id. In contrast, the Plaintiff here sought leave to amend his complaint well before the discovery cut-off. He was denied leave because he failed to file a motion requesting leave to file his amended complaint. He was instructed to file a motion for leave to amend. Instead, he filed a second lawsuit in which he named new defendants and asserted new causes of action. The second lawsuit in this case, unlike the second lawsuit in Adams, was also filed before the discovery cutoff in the first case. Therefore, while the severe sanction of dismissal with prejudice was held to be appropriate in Adams, there are sufficient procedural differences between this case and Adams to warrant a concomitantly different outcome. Furthermore, Defendants may address their concerns regarding the cost of piecemeal litigation through other means, including a motion for consolidation.
In sum, having reviewed plaintiffs complaint, defendants' motion to dismiss, plaintiff's motion to amend his complaint, plaintiff's motion for partial summary judgment, plaintiff's "motion" objecting to defendants' request for a continuance of plaintiff's summary judgment motion, the Report and Recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge, Defendants' Objections to the R R, Plaintiff's Response thereto, and the remaining record, the Court agrees with Judge Theiler that whether the case should be dismissed under Adams the claim splitting doctrine is a close call. However, Judge Theiler's analysis is thorough and consistent with Ninth Circuit precedent.
The Court does hereby ORDER:
(1) The Court adopts the Report and Recommendation (Dkt. #40);
(2) Defendants motion to dismiss (Dkt. #27) is GRANTED with respect to defendant David Haynes and DENIED with respect to defendants Alan Baalaer and Josh Vivet;
(3) Plaintiff's motion to amend his complaint (Dkt. #35), plaintiff's motion for partial summary judgment (Dkt. #31), and plaintiff's "motion" objecting to defendants' request for a continuance of plaintiff's summary judgment motion (Dkt. #37) are STRICKEN;
(4) Plaintiffs request that defendant's Objections be stricken (Dkt. #44) is DENIED;
(5) The Clerk is directed to send copies of this Order to plaintiff, to counsel for defendants, and to the Honorable Mary Alice Theiler.