Opinion
3:22-cv-00303-JR
07-13-2023
MELVIA WILSON, Plaintiff, v. OREGON DEPARTMENT OF HUMAN SERVICES, FARIBORZ PAKSERESHT, CAROLINA CABALLERO, LESSONIA ODIGHIZUWA, JENNIFER DEVANE, ALEXIS ALBERTI, LINDA DELISLE, CHARLIE JENKINS, and REGINALD RICHARDSON, Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE
Plaintiff initiated this action, pro se, on February 11, 2022, asserting wrongful garnishment, intentional infliction of emotional distress, negligence, and due process violations against the Oregon Department of Human Services (DHS) and individual employees of DHS. On March 16, 2022, plaintiff moved for appointment of counsel which the Court denied on March 28, 2022. (ECF 8).On August 2, 2022, defendants moved to dismiss. On November 9, 2022, the Court granted the motion with leave to amend. (ECF 29 (F&R) and 32 (Order Adopting)).
In denying the motion, the Court noted it was “unable to determine what claims plaintiff is alleging or to decipher any facts demonstrating entitlement to relief. The Court notes that plaintiff has been previously appointed counsel to help her draft an amended complaint in another case involving DHS concerning alleged mistreatment of her foster care facility. See Case No. 3:20-cv-1819-JR.” Order (ECF8) at p. 3.
On December 8, 2022, plaintiff moved to amend, however, after defendants responded, Robert Parker filed an appearance as counsel for plaintiff. Accordingly, plaintiff sought “to continue that matter for 30 days.” Motion to Continue (ECF 38) at p. 1. In granting the motion, the Court denied the motion to amend without prejudice and gave counsel until February 3, 2023, to review the case. (ECF 39).
On February 3, 2023, plaintiff filed another motion to amend seeking to assert claims under 42 U.S.C. § 1981 and 42 U.S.C. § 1983, as well as claims for civil RICO and RICO conspiracy under 18 U.S.C. § 1961. Because plaintiff failed to confer, the Court again denied the motion to amend without prejudice.
On February 13, 2023, plaintiff again moved to amend, and the Court temporarily stayed the motion so that plaintiff could file a RICO case statement to aid the parties and the Court in evaluating the viability of the amended complaint. The Court ordered the RICO case statement filed by March 7, 2023. Plaintiff eventually filed the RICO case statement on April 3, 2023, and defendants responded to the motion to amend on April 17, 2023, asserting plaintiff failed to state facts sufficient to constitute claims under sections 1981 and 1983. Defendants also noted plaintiff failed to sufficiently plead any RICO claims. Response (ECF 49).
Rather than address the deficiencies highlighted by defendants, plaintiff has instead moved to voluntarily dismiss the case without prejudice pursuant to Fed.R.Civ.P. 42(a)(2). For the reasons stated below, the motion should be granted with certain limitations.
DISCUSSION
As noted above, this case remains in the pleading stage as plaintiff, prior to seeking dismissal, sought to amend the operative complaint to add a significant new cause of action. Curiously, in her motion to dismiss, plaintiff asserts her “ability to proceed in this matter is presently hampered” because “[t]here has been a concerted effort to preclude Plaintiff from access to the information and documentation necessary to proceed with this matter and leaves Plaintiff in a position where she is unable to proceed in forward with the prosecution of this matter.” Motion to Dismiss (ECF 50) at pp. 3, 2. As the Court has recently denied a motion to extend discovery without prejudice to revisit deadlines after the Court rules on the motion to amend, the Court is confused as to plaintiff's assertion of a concerted effort to preclude access to information. See Order dated March 23, 2023 (ECF 47).
However, when viewing this case in conjunction with plaintiff's related action in Case No. 3:20-cv-1819-JR, where plaintiff's dilatory actions with respect to her failure to conduct discovery in a timely manner has led to denials to reopen discovery, it appears that plaintiff acknowledges these two cases significantly overlap. In the 20-1819 case, plaintiff also sought dismissal without prejudice for the same reason asserted in this case. It is important to note that plaintiff describes each case exactly the same in seeking “to address disparities in payment, benefits and resources associated with the foster care program in the State of Oregon and Multnomah County.” Compare Motion to Dismiss (ECF 50) at p. 2 with Motion to Dismiss in Case No. 3:18-cv-1819 (ECF 134) at p. 2. It is for that reason the Court warns plaintiff that, although this case should be dismissed without prejudice as discussed below, any attempt to revive this action will likely encounter obstacles related to claim preclusion. Any failures to consider such obstacles before filing any new action, may necessitate sanctions if defendants are required to incur expenses in seeking dismissal based on res judicata.
Defendants request that any dismissal without prejudice still preclude attempts to reassert claims regarding events in 2013 and 2014 which this Court has previously dismissed with prejudice on statute of limitations grounds. Because those claims have been dismissed with prejudice, dismissal of this case without prejudice will not act as a green light to replead such claims.
Defendants also request the Court first rule on the pending motion to amend. However, while defendants' response to the motion to amend demonstrates significant deficiencies in the proposed amended complaint, courts generally must grant further leave to amend if plaintiff can address those deficiencies. Plaintiff's failure to file a reply in support of her motion to amend prevents the Court from adequately analyzing if further amendment should be allowed.
Generally, motions filed under Fed.R.Civ.P. 41(a)(2) should be liberally granted, as long as no other party is prejudiced. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976). In the Ninth Circuit, the decision to grant a voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the district court. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980). The district court must consider whether the defendant will suffer some plain legal prejudice as a result of the dismissal. Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). Plain legal prejudice does not result simply when a “defendant faces the prospect of a second lawsuit,” or when plaintiff “merely gains some tactical advantage.” Id. Neither does plain legal prejudice arise from defendant's missed opportunity for a legal ruling on the merits. In re Fed. Election Campaign Act Litigation, 474 F.Supp. 1051, 1052 (D.D.C. 1979); Wainwright Sec., Inc. v. Wall St. Transcript Corp., 80 F.R.D. 103, 106 (S.D.N.Y. 1978). Plain legal prejudice may be shown where actual legal rights are threatened or where monetary or other burdens appear to be extreme or unreasonable. For example, plain legal prejudice has been shown where the motion for voluntary dismissal came at such an advanced stage of the proceedings so as to prejudice defendant by waste of time and expense in preparation of defense. See Green Giant Co. v. M/V Fortune Star, 92 F.R.D. 746 (S.D.Ga.1981).Watson v. Clark, 716 F.Supp. 1354, 1355-56 (D. Nev. 1989), affd, 909 F.2d 1490 (9th Cir. 1990).
Given that this case is still at the pleading stage, it is appropriate to grant plaintiff's motion to dismiss without prejudice. However, to the extent plaintiff seeks to litigate claims that were brought, or could have been brought, in Case No. 18-cv-1819-JR and would be subject to dismissal based on claim or issue preclusion given the proposed decision on the merits in that case, such claims may not be asserted in any new case filed by plaintiff. Plaintiff is warned that failure to consider such issues in the event she files any new cause of action against defendants named in the 20-1819 case, or those in privity with such defendants, may result in sanctions to the extent such defendants incur expense in successfully seeking dismissal on the basis of claim or issue preclusion.
CONCLUSION
For the foregoing reasons, plaintiff's motion for voluntary dismissal without prejudice (ECF 50) should be granted, as limited above, and plaintiff's amended motion for leave to amend (ECF 42) should be denied as moot. A judgment should enter accordingly.
This recommendation is 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 the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.