Daniels v. Sherman

Filing 13

ORDER GRANTING IN PART 12 Motion for Extension of Time; Show Cause Response due by 2/17/2017 signed by Magistrate Judge Erica P. Grosjean on 12/20/2016. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NORMAN DANIELS, III,

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Plaintiff,

Case No. 1:16-cv-01312-EPG-PC
ORDER GRANTING IN PART MOTION
FOR EXTENSION OF TIME

vs.
(ECF No. 12)
STU SHERMAN,
Defendant.
Plaintiff Norman Daniels, III, has filed a request for an extension of time to file a
response to the Court’s Order to Show Cause (ECF No. 9), as well as a request for clarification
of the Order to Show Cause. The Order to Show Cause was issued on October 17, 2016 and
this is Plaintiff’s second request for an extension of time. As with the previous request for an
extension of time, Plaintiff incorrectly filed his motion in a different case that Plaintiff is
pursuing simultaneously, case no. 1:16-cv-01313-EPG-PC (the “1313 case”). Plaintiff’s motion
expresses confusion at the procedural posture of the two cases and requests an additional 90
days to respond to the Order to Show Cause.
As to Plaintiff’s request for clarification, Plaintiff is currently pursuing two separate
cases that appear to arise out of the same set of facts. The present case (the “1312 case”) is the
first of those cases and the 1313 case is the second of those cases. The 1313 case was originally
assigned to Magistrate Judge Barbara A. McAuliffe. As explained in the Order to Show Cause,

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the 1312 case appears to be substantially identical to a complaint that was filed by Plaintiff in

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2012, case no. 1:12-cv-00545-LJO-GSA (the “545 case”). The 545 case was dismissed in 2014.

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Shortly after the Order to Show cause was issued in the 1312, the 1313 case was related to the

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present case—in other words, the 1313 case was reassigned to Magistrate Judge Erica P.

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Grosjean. Both the 1312 case and the 1313 case are still active cases and neither has been

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subsumed by the other. Both cases are currently in the screening process and the Court must

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determine whether they should be allowed to proceed.1

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The Order to Show Cause requires Plaintiff to show cause why this case should not be

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dismissed based on the fact that the 545 case was dismissed. Generally, a “final judgment on

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the merits bars further claims by parties or their privies based on the same cause of action.”

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Headwaters Inc. v. U.S. Forest Service, 399 F.3d 1047, 1051 (9th Cir. 2005).2 Final judgment

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was entered in the 545 case. Thus, Plaintiff must explain why the 1312 case should not be

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barred from proceeding. As explained in the Order to Show Cause, Plaintiff should do this by

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filing a written response with the Court explaining why this doctrine does not apply. If Plaintiff

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determines that his case(s) should not proceed based on res judicata, he may also file a notice

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of voluntary dismissal of his case.

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The Court is unwilling to grant the entire requested 90 day extension because Plaintiff

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has already received over two months of time to consider his response to the Order to Show

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Cause.

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A separate order to show cause has been issued in the 1313 case requiring the Plaintiff to show cause why the
1313 case should not be dismissed based on res judicata. Plaintiff must thus respond to two orders to show
cause—one in this case and one in the 1313 case. It is unclear to the Court why Plaintiff is pursuing these cases in
tandem.
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“The elements necessary to establish res judicata are: ‘(1) an identity of claims, (2) a final judgment on the
merits, and (3) privity between parties.’” Headwaters Inc., 399 F.3d at 1052, quoting Tahoe-Sierra Pres. Council,
Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003).

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Nevertheless, the Court will GRANT IN PART Plaintiff’s request for an extension of

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time to respond. Plaintiff shall file a response to the Order to Show Cause no later than

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February 17, 2017.

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IT IS SO ORDERED.
Dated:

December 20, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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