Opinion
No. CIV S-05-1432 FCD PAN (GGH) PS.
August 2, 2006
FINDINGS AND RECOMMENDATION
Plaintiff filed his complaint in this action over a year ago, on July 15, 2005. This action should be dismissed for the following reasons.
Plaintiff has not demonstrated service of process upon defendant. Pursuant to Federal Rule of Civil Procedure 4(m), the court may dismiss an action where service of summons is not made within 120 days after the filing of the complaint. In the order requiring timely service filed July 18, 2005, plaintiff was cautioned that this action may be dismissed if service was not timely completed. While the court routinely issues orders to show cause under such circumstances directing plaintiff to explain the absence of service and why the action should not be dismissed, a more compelling reason supports dismissal.
This action is based upon the identical facts presented in Lau v. John Ashcroft, Attorney General, Civ. S-02-0390 GEB GGH, which resulted in a final judgment on the merits. Both cases allege causes of actions under Title VII (race, national origin, retaliation) and the Rehabilitation Act based upon plaintiff's termination from his employment with the FBI in late 1998 or early 1999. In the first case, the Honorable Garland E. Burrell, Jr., found that plaintiff failed to establish a prima facie case on any of his claims and granted defendant's motion for summary judgment. See Order filed November 3, 2003.
Because this action involves the same parties (defendant remains the U.S. Attorney General), the same facts, and the same causes of action as decided in Lau v. John Ashcroft, Attorney General, Civ. S-02-0390 GEB GGH, the instant complaint is barred by principles of res judicata. See Montana v. U.S., 440 U.S. 147, 99 S. Ct. 970 (1979); see also Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) (doctrine of res judicata serves to bar a claim where there is an identity of claims, a final judgment on the merits and an identity of parties).
For the foregoing reasons, IT IS RECOMMENDED that the complaint be dismissed with prejudice.
These findings and recommendations are submitted to the Honorable Frank C. Damrell, the United States District Judge assigned to this case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The parties are 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).