Opinion
No. CIV S-08-2273 GEB GGH PS.
October 14, 2008
FINDINGS RECOMMENDATIONS
Plaintiffs are proceeding pro se and have paid the filing fee. Plaintiffs' complaint was filed with the court on September 26, 2008. The court's own records reveal that on August 28, 2008, plaintiffs filed a complaint containing virtually identical allegations against the same defendants, and has now added two additional defendants. (No. Civ. S-08-2029 JAM DAD PS).
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
It has also come to the court's attention that plaintiffs originally intended to file this pleading as a second amended complaint in the older case. According to personnel in the Clerk's Office, plaintiffs insisted that the Clerk issue a summons that day. The Clerk's Office refused due to the pleading's status as a second amended complaint. Plaintiffs then proceeded to open a new action by paying a new filing fee, crossing out the word "amended" and the case number on the pleading, and filing it as a new complaint, in order to have a summons issued that day. It is clear that plaintiffs intended to file their complaint as a second amended complaint in case number Civ. S-08-2029. Due to the duplicative nature of the present action, the court will recommend that the complaint be dismissed.
In accordance with the above, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed.R.Civ.P. 41(b).
These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).