Opinion
3:22-cv-00256-YY
05-25-2022
KAYLA ELLIS, Plaintiff, v. VIAL FOTHERINGHAM LLP, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
In this action, pro se plaintiff Kayla Ellis brings a Family Medical Leave Act (“FMLA”) claim against her former employer, defendant Vial Fotheringham LLP. Notice Removal, ECF 1, Ex. A, at 7 (Compl. ¶ 1). She also alleges an “Oregon common law” claim in which she cites to Yeager v. Providence Health Sys., 195 Or.App. 134 (2004). Because plaintiff's claims are untimely and barred by claim preclusion, defendant's Motion to Dismiss (ECF 5) should be granted and this case should be dismissed with prejudice.
I. Statute of Limitations
Plaintiff asserts claims arising out of her employment with defendant “from April 8, 2013, through October 7, 2014, ” on which date she claims she was “terminated for pretextual reasons.” Notice Removal, ECF 1, Ex., A, at 8 (Compl. ¶¶ 7, 14). The statute of limitations for an FMLA claim is two years. 29 U.S.C. § 2617(c)(1). Plaintiff filed this complaint on December 6, 2021, over seven years after her termination. Notice Removal, ECF 1, Ex. A. Plaintiff's FMLA claim clearly falls outside the statute of limitations.
Plaintiff does not respond to defendant's statute of limitations argument in any comprehensible way, other than to argue that defendant had a “long standing policy and procedure on ‘they just take the time”” and “asks the Court to once more, disregard the statute of limitations on time.” Resp. 4, ECF 9. These are not valid reasons to set aside the statute of limitations. Because plaintiff's FMLA claim is time-barred, it must be dismissed.
II. Claim Preclusion
Claim preclusion bars litigation of claims that were or could have been raised in a prior action. Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir. 2007). “Claim preclusion requires (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.” Howard v. City of Coos Bay, 871 F.3d 1032, 1039 (9th Cir. 2017) (citations and internal quotation marks omitted).
A. Identity of Claims
The court considers four factors in evaluating whether claims are identical:
(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.United States v. Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1150 (9th Cir. 2011) (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1202 n.7 (9th Cir. 1982)). The factors are not applied mechanistically, and the fourth factor is the most important. Howard, 871 F.3d at 1039. “[T]he inquiry about the ‘same transactional nucleus of facts' is the same inquiry as whether the claim could have been brought in the previous action.” Liquidators, 630 F.3d at 1151 (emphasis in original).
Previously, in 2016, plaintiff filed another case with this court-Ellis v. Vial Fotheringham LLP, No. 3:16-cv-01945-AC. See Choi Decl., Ex. 1, ECF 6. In that case, plaintiff raised two claims that are identical to the ones she alleges in this case. First, she alleged an FMLA violation arising out of her employment with defendant, which she claimed was terminated on October 7, 2014, “for pretextual reasons.” Id. ¶ 12. Second, she asserted a state law wrongful termination claim in which she relied on Yeager, just as she does in this case. Thus, both cases involve substantially the same evidence and the same rights, they arise out of the same transactional nucleus of facts, and the rights or interests established in the prior judgment would be destroyed or impaired by prosecution of this second action.
B. Final Judgment on the Merits
Plaintiff's previous case was dismissed with prejudice following summary judgment. See Choi Decl., Ex. 3, ECF 6 (Findings and Recommendation); id., Ex. 4 (Order); id., Ex. 5 (Judgment). The dismissal of an action with prejudice constitutes a final judgment on the merits. Int'l Union of Operating Eng'rs-Empl'rs Constr. Indus. Pension, Welfare & Training Tr. Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir. 1993).
C. Privity
Privity exists when “a person [is] so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved.” United States v. Bhatia, 545 F.3d 757, 759 (9th Cir. 2008) (citation and internal quotation marks omitted). Here, the parties are clearly in privity, as they are the same parties that litigated the prior case.
Because there is identity of claims, a final adjudication on the merits, and privity between the parties, prosecution of plaintiff's claims in this case is precluded by her prior case, Ellis v. Vial Fotheringham LLP, No. 3:16-cv-1945-AC.
RECOMMENDATIONS
Defendant's Motion to Dismiss (ECF 5) should be GRANTED and this case should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, April 29, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.