Gifford v. Puckett, et al

Filing 69

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/17/17 RECOMMENDING that the Second Amended Complaint be DISMISSED on res judicata grounds to the extent that the claims therein pre-date 6/15/15, and are stated against t he defendants common to both actions identified previously;Plaintiff' Second Amended complaint be DISMISSED with prejudice pursuant toFederal Rule of Civil Procedure 41(b); or, in the alternative, that: Plaintiff's Second Amended complaint be DISMISSED with prejudice pursuant toFederal Rule of Civil Procedure 12(b)(6); the Clerk should CLOSE this file. Referred to Judge Kimberly J. Mueller; Objections due within 30 days after being served with these findings and recommendations. (Becknal, R)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER GIFFORD, 12 Plaintiff, 13 14 No. 2:16-cv-0955 KJM GGH v. FINDINGS AND RECOMMENDATIONS ROBERT PUCKETT SR., et al., 15 Defendants. 16 This matter is a second case filed by plaintiff Roger Gifford alleging various claims 17 18 against several defendants, some common to both actions, principal among which is the 19 Hornbrook Community Services District (District). See 2:15-cv-1274 MCE AC PS. The 20 additional defendants are various members of the District’s Board, lawyers who have represented 21 the District and its board members in this case as well as a related case -- Harrell v. Hornbrook 22 Community Services District, et al., 2:14-cv-1595 KJM GGH. 23 This Order will address the history of the both the present and the earlier case and for the 24 reasons stated herein will recommend that the matter be dismissed with prejudice pursuant to res 25 judicata, in part, Federal Rules of Civil Procedure 8, 41(b) and 12(b)(6) because, of its internal 26 deficiencies, and because it fails to address the orders and warnings given in connection with the 27 earlier case that led to its dismissal on those grounds. 28 //// 1 PROCEDURAL HISTORY1 1 2 3 6/15/15 A verified complaint is filed in Gifford v. Hornbrook, etc., Civ. 2:15- 1274 is filed and alleges several Claims as follows: 4 First Claim, Count 1, for violations of plaintiff’s federal constitutional rights to 5 freedom and speech and petition; Count II, for deprivation of rights to free speech and 6 petition due process and equal protection of the laws’ Count III, for rights to due process 7 and equal protection; Count IV, for deprivation of rights to equal protection, due process 8 and liberty; Count V, for deprivation of rights to equal protection due process of law, and 9 first amended right of petition; Count VI, for deprivation of rights to due process and equal 10 protection related to Gifts of District public funds; Count VII, for violation of rights to due 11 process, equal protection, free speech and petition, and liberty interests; and, Count VIII, 12 for deprivations of right to due process and equal protection – gifts of public funds to Clint 13 Dingman. 14 Second Claim: Pendent State Claims: Count 1, for violations of District by-laws; 15 Count II, for willful negligence, negligence; Count III, Violations of Government Code 16 sections 1090 and 87100 – Self Dealing; Count IV, Retaliation in Employment; Count V, 17 Failure to Indemnify Public Employee; Count VI, violation of the Public Records Act; 18 Count VIII, gifts of public funds false claims and fraud as to Clint Dingman; Count IX, for 19 violation of Article I, section 2, of the California Constitution; Count X – Unfair Business 20 Practices as to Robert Winston, California Business and Professions Code section 17200 et 21 seq; Count XI, Unfair Business Practices as to HCBC [defendant Hornbrook Community 22 Bible Church] (alleged to have resulted in violations of the California Water Code and the 23 federal Safe Drinking Water Act); Count XII, Unfair Business Practices as to Murphy, 24 Pearson, Bradley & Feeney, Inc. and Attorney Robert Lucas; Count XIII, for civil 25 1 26 27 28 The chronological procedural histories of both the instant matter and its predecessor, Gifford v. Hornbrook Community Services District, et al., Civ. 2:15-cv- 1274 MCE-AC will be included here. This exercise is necessary to demonstrate the burden the case has wrought on both the court and the defendants’ pocketbooks and therefore becomes necessary as context for the recommendation this court will make to dismiss this case. To distinguish between the two cases, the referenced pleadings in the earlier case appear in bold-faced type. 2 1 conspiracy by defendants to violate plaintiff’s constitutional and statutory rights and in 2 retaliation; Count XIV, for Willful and/or Negligent Infliction of Emotional Distress; Count 3 XV, for California Labor Law Violations; Count XVI for nuisance; Count XVII, for 4 violations of the contractual covenant of good faith and fair dealing; Count XVIII, for 5 Punitive Damages. Each of the foregoing incorporates “facts”2 stated in paragraphs 1 through 189 and 6 7 191. 8 9 Plaintiff prays for damages, both compensatory and punitive, declaratory relief, disgorgement of attorney fees paid to defendant attorneys and gifts of public funds, 10 attorneys’ fees, mandates to disclose recipients of gifts of public funds, to require Board 11 members to engage an engineering firm to determine proper water delivery fees, to employ 12 certified operators of all district facilities, to provide plaintiff with unrestricted access to all 13 District equipment, property, facilities and all books and records it maintains; a declaration 14 that defendant Dingman is an uncertified operator and thus a nuisance per se and as such 15 he must cease any operational activities and enforcement of that cessation by injunction, 16 and injunctions prohibiting refusing to provide keys to all District locks to plaintiff and all 17 other directors, preventing defendants and those acting in concert with them from 18 operating the District facilities until they acquire licenses and from acting outside federal 19 state or local law, disallowing Board Defendants from undertaking administrative duties of 20 officers and employees, mandating Board Defendants to abide by District by-laws, and 21 declarations of each act previously taken by the Board defendants in violation of the Broad 22 Act, the District Bylaws and any other law identified in the Complaint and identifying all 23 such actions to be ultra vires and void. 24 Altogether this Complaint ran to 114 pages and was accompanied by 219 pages of 25 attachment exhibits. ECF No. 1. 26 //// 27 28 2 The “facts” purportedly stated are often better described as legal conclusions. 3 1 9/22/15 Magistrate Judge Clair grants plaintiff IFP status and dismisses the 2 complaint pursuant to Federal Rule of Civil Procedure 8 and based upon its “shotgun 3 pleading” nature, explaining actions must be taken to bring the complaint within the scope 4 of the dictates of Rule 8 and the Local Rules of the District. Plaintiff is given 30 days to 5 amend if he chooses to do so. ECF No. 3. 6 1/21/16 After being given two 90 day extensions of time to replead, ECF Nos. 5, 7 7, plaintiff files his First Amended Complaint. This amendment runs to 143 pages plus a 3 8 page Table of Contents, but has no accompanying Attachments or Exhibits. ECF No 8. 9 1/26/16 Magistrate Judge Claire issues Findings and Recommendations 10 recommending the Amended Complaint be dismissed without leave to amend for a 11 continuing violation of Rule 8 and replication of the first “shotgun pleading.” The Order 12 finds that plaintiff has acted in bad faith, has repeated to fail to cure deficiencies by the 13 amendment allowed, has prejudiced the defendants by his actions, and concludes that 14 further amendment would be futile. ECF No. 9. 15 2/12/16 Plaintiff files objections to the Magistrate Judge’s Findings and 16 Recommendations on the grounds, inter alia, that the court has misread the requirements of 17 Rule 8, violated the holdings of Twombly and Iqbal, overlooked the complexity of the issues 18 he has raised which prevents a “short and plain” presentation, and failed to meaningfully 19 assess the complaint as a whole. ECF No. 10. 20 3/30/16 District Judge adopts Findings and Recommendations, ECF No. 9, 21 dismisses Amended Complaint without leave to amend, and orders the file closed. ECF No. 22 11. 23 24 25 4/21/16 Plaintiff files a Notice of Appeal. ECF No. 13, and seeks in forma pauperis status in appellate court. ECF Nos. 13, 15. 5/5/16 Plaintiff files the Complaint in the instant matter, Civ. 2:16-cv-955, 26 containing 85 pages of allegations and 40 pages of exhibits, ECF No. 1, and seeks in forma 27 pauperis status. ECF Nos. 2. The Complaint, attempting to state claims that have been dismissed 28 against the District, et. al., and otherwise, sets forth the following claims: 4 1 First Claim, Count I – Violations of rights to freedom of assembly, speech and petition; 2 Count II – Deprivations of rights to equal protection and due process; Count III – Deprivations of 3 rights to equal protection due process and First Amendment rights; Count IV – Deprivations of 4 due process and equal protection for gifts of public funds to named parties; Count V – 5 Deprivations of rights to due process and equal protection for gifts of public funds to defendant 6 Clint Dingman; Count VI – Deprivations of due process and equal protection for illegal 7 modification to and ignoring of District by-laws by ; Count VII – Violation of 42 U.S.C. section 8 1985; Count VIII – Violation of rights to due process, equal protection by defendants District, 9 Bowles, Winston, Dingman and Goff; Count IX – Violation of due process and equal protection 10 11 by defendants Board, Dingman and Goff. Second Claim, Count 1 – Violation of State Law for failing to follow by-laws; Count II – 12 Willful Negligence and Negligence; Count III – Gifts of Public Funds; Count IV – Gifts of Public 13 Funds, False Claims and Fraud against defendant Dingman; Count V – Gifts of Public Funds to 14 defendants Ernest Goff and Julie Bowles through false claims; Count VI – Gifts of Public Funds 15 to John Does; Count VII – Violation of Article 1, section 3, of the California Constitution; Count 16 VIII – Violation of Article 1 section 2 of the California Constitution; Count IX – Unfair Business 17 Practices by Julie Bowles and Board defendants; Count X – Nuisance and Nuisance Per se by 18 Dingman and Goff; Count XI – Failure to Impose Standby Fee and Collect Due Fees and Taxes; 19 Count XIII – Unfair Business Practices by Robert Winston and Board defendants; Count XIV – 20 Unfair Business Practices and False Claims by Robert Winston; Count XV – Neligence by Robert 21 Winston and Board defendants; Count XVI – Unfair Business Practices by the District; Count 22 XVII – Willful and/or Negligent Infliction of Emotional Distress; Count XVIII – Nuisance by 23 Board Defendants, Dingman and Goff; Count XIX – Official Acts of Board Defendants are Void; 24 Count XX – Improperly Unbilled Fees and Charges (gifts of public funds); Count XXI – Waste 25 of Public Funds; Count XII Violation of the California Public Records Act. 26 The prayer seeks declarations of rights, general, special, economic and exemplary 27 damages, disgorgement of wrongfully attained payments; disgorgement of gifts of public funds; 28 attorney fees and costs of suit; mandate disclosure of recipients of public funds; restitution of 5 1 losses incurred by the District; mandate a study by a public engineering firm re reasonable, 2 compliance with Water Code provisions, funding of necessary maintenance and repairs, hiring of 3 properly qualified and certified employees and mandate all directors be given unrestricted access 4 to District equipment, facilities, documents and records; declaration re effect of failure to comply 5 with the California Public Records Act and mandate future compliance, and expunge prior void 6 policies, customs and practices of the District; several preliminary injunctions to restrict the 7 actions of defendants including prevention of lawyer defendants from representing District or its 8 employees and agents without a specific resolution adopted at a public meeting that, taken 9 together, would have the impact of a granting a receivership over the District. ECF No. 1. 10 5/26/16 Magistrate Judge Claire grants informa pauperis status in Civ. 2:16-cv-955 11 and dismisses the Complaint with thirty days leave to amend again citing to the requirements of 12 Rule 8, the Local Rules of the District, and the “shotgun pleading” approach used by plaintiff, 13 ECF No. 3. 14 15 6/15/16 N.A., 534 U.S. 506, 514 (2002).3 ECF No. 7. 16 Plaintiff files First Amended Complaint. 17 18 Plaintiff files objections to ECF No. 3, citing Swierkiewicz v. Sorema, 6/20/16 Magistrate Judge dismisses First Amended Complaint with 30 days leave to amend with Rule 8 instructions repeated, and limits any amendment to 25 pages 19 8/24/16 Magistrate Judge enters an Order granting plaintiff 30 days from date of 20 issuance to file an amended complaint not to exceed 25 pages, directs it be in the proper form 21 under Local Rule 130, and cannot incorporate attachments or exhibits as a means to expanding 22 beyond the page limit. ECF No. 8. 23 9/12/16 Plaintiff files objections to Order, ECF No. 8, arguing the page limit 24 imposed is arbitrary and the Order did not assess the sufficiency of the claims per se, failed to 25 3 26 27 28 Plaintiff interprets Swierkiewicz to stand for the proposition that length, complexity, repetitiveness, and the like cannot be a basis for dismissal. Actually, the case overrules a 2nd Circuit requirement that a plaintiff must plead in accordance with the evidentiary structure found in the Court’s holding in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), instead iterating the standard to be used to judge a complaint is found in Rule 8’s call for a “short and plain” pleading. 6 1 identify what could be stricken as “unnecessary,” and cites to Davis v. Ruby Foods, Inc., 269 2 F.3d 818 (7th Cir. 2001)4 which held that the mere inclusion of some extraneous material in a 3 complaint is not sufficient to merit dismissal. ECF No. 9. 4 5 9/20/16 10/3/16 in 2:15-cv-1274 for failure to file the opening brief on appeal. ECF No. 18. 8 9 10 12/5/16 Order. ECF No. 11. 5/17/17 6/8/17 Ninth Circuit Court of Appeals issues a formal mandate regarding Appeal pursuant to Federal Rule of Appellate Procedure 41(a). 15 16 Ninth Circuit Court of Appeals issues a memorandum ordering the decision of the District Court in 2:15-cv-1274 is affirmed. ECF No. 19.5 13 14 Magistrate Judge Claire issues an Order withdrawing IFP status and directing that plaintiff must file a Second Amended Complaint within 30 days of the date of the 11 12 Ninth Circuit Court of Appeals issues an Order dismissing the appeal 10. 6 7 Plaintiff requests withdrawal of IFP status and pays filing fee. ECF No. 12/29/16 Plaintiff moves for a 30 day extension of time to file a Second Amended Complaint ECF No. 12, which motion is granted on 12/29/16. ECF No. 13. 17 2/1/17 Second Amended Complaint of 148 pages filed. ECF No. 14. 18 3/21/17 Motion to Dismiss by defendants Bowles, Dingman, District, Puckett, 19 Slote, by attorney Salazar raises failure to obey the Order of 6/26/16 directing amendment not to 20 exceed 25 pages, and failure to state a claim insofar as claims are not tied to facts sufficient to 21 demonstrate any permissible action in any rational way. ECF No. 28. 22 23 Motion to Dismiss by Hornbrook Community Bible Church, Inc. in which defendant’s attorney Salazar mirrors grounds found in ECF No. 28. ECF 32. 24 4 25 26 27 28 Plaintiff fails to note that the Davis court identified the pleading under to review to be 20 pages long and distinguished it from a 3rd circuit case that dismissed a complaint containing 240 pages on the same grounds used to dismiss plaintiff’s complaint here, finding it exceptional compared to the complaint it was addressing. 269 F.3d at 821. 5 The undersigned is confused why, having dismissed the appeal for failure to file an opening brief and having the dismissal stand as the mandate of the court, the Ninth Circuit, without reopening the appeal, issued a substantive decision on the merits of the district court’s dismissal. 7 1 2 Motions to Dismiss in ECF Nos. 28 and 36 joined by defendant Ernest Goff, pro se. ECF No. 34. 3 4 3/22/17 Plaintiff requests Entry of Default against District, Martin Puckett and Slote. ECF No. 38. 5 3/24/17 Request for Entry of Default, ECF No. 38, declined. ECF No. 39. 6 3/27/17 Plaintiff requests Entry of Default against Hornbrook Community Bible 7 Church, Inc. ECF No. 44. 8 9 3/29/17 Under the caption for Harrell v. Hornbrook Community Services District, et al., 2:14-1595 KJM GGH, District Judge Mueller enters an order that reassigns this case to 10 herself and to the undersigned, and dismisses the Harrell case with leave to amend in 25 pages or 11 less. ECF No. 45. 12 13 3/29/17 L.C. and Robert Winston filed by attorney Sommer. ECF No. 46. 14 15 3/30/17 Plaintiff moves for a 60 day extension of time to file an opposition to the Motions to Dismiss and seeks permission for early discovery. ECF No. 48. 16 17 Motion to Dismiss by attorney defendants Kirsher, Winston & Boston, 3/31/17 Plaintiff request for Entry of Default against Lee Buckley, Robert Winston, and Kirsher, Winston & Boston, LLC. ECF. 52. 18 Hearing on Motion to Dismiss scheduled for 5/18/17 at 10:00 a.m. reset for 19 9:00 a.m. ECF N. 49. 20 4/3/17 21 Inc., ECF No. 44, declined. EC No. 51. 22 23 Request for Entry of Default against Kirshner, Winston & Boston, LLC and Robert Winston, ECF declined. ECF No. 54. 24 25 Request for Entry of Default against Hornbrook Community Bible Church, 4/6/17 Letter from plaintiff to Clerk of the Court questioning whether a hearing was ever noticed for 5/18/17, claiming no notice. ECF No. 56. 26 Plaintiff files Opposition to Hornbrook Community Services District’s 27 Motion to Dismiss. ECF No. 57. 28 //// 8 1 4/7/17 Magistrate Judge Hollows’ Order denies extension of time to respond to 2 Motion to Dismiss for mootness as no operative complaint exists, and denies request for early 3 discovery. ECF No. 55. 4 Plaintiff Objects to Judge Mueller’s Order of March 29, 2017 on grounds it 5 is factually incorrect, opines that assignment to the undersigned Magistrate Judge is prejudicial to 6 him in light of Orders entered in the related Harrell case and asks that her Order be withdrawn. 7 ECF No. 59. 8 9 4/10/17 District, Puckett, Slote, Bowles and Dingman, ECF No. 28. ECF No. 58. 10 11 Basic Laboratory, Inc. files a Joinder in the Motion to Dismiss filed by 4/12/17 Plaintiff requests 60 day extension of time to Oppose Kirsher, Winston & Boston, LC and Robert Winston Motion to Dismiss. ECF No. 60. 12 Plaintiff requests reconsideration of Order entered on 4/7/17 on the ground 13 that Judge Mueller’s Order in ECF No. 45, having been entered under the Harrell caption, did not 14 bind him, and that Magistrate Claire’s imposition of a page limitation no longer applied. ECF. 15 61. 16 4/25/17 Motion to Dismiss found in ECF No. 33 is vacated from Magistrate 17 Claire’s 4/26/17 calendar and if parties seek to reschedule they should contact Judge Hollows’ 18 Courtroom Deputy in light of the assignment change ordered by Judge Mueller on 3/29/17. 19 5/2/17 Magistrate Judge issues an Order to Show Cause why plaintiff should not 20 be sanctioned for failing to follow the District Judge’s Order of March 29 2017, ECF No. 45, to 21 file a Third Amended Complaint no later than April 28, 2017. ECF No. 63. 22 5/19/17 District Judge Mueller denies plaintiff’s Motion to Reconsider, ECF No. 23 61, and clarifies that Judge Claire’s 25 page-limit on any amended complaint was preserved in 24 ECF Nos. 10 and 11. ECF No. 74. 25 Plaintiff responds to the Order to Show Cause, repeats arguments found in 26 ECF No. 74, and clearly states, at page 6, lines 7 through page 7, line 1, that he refuses to amend 27 his Second Amended Complaint and chooses instead to stand on that pleading. ECF No. 65. 28 //// 9 1 5/25/17 Plaintiff files Objections to and seeks Reconsideration of the Order found 2 in ECF No. 74. Here, he discloses his belief that once he withdrew from IFP status, the 3 magistrate judge was no longer either required or entitled to require the brevity which she had 4 ordered earlier in the case and that she indicated her belief this was true in her withdrawal order 5 which gave him more time to amend and pointed out that such was appropriate since he was no 6 longer proceeding IFP. EC No. 66. 7 8 6/2/17 Judge Mueller overrules plaintiff’s objections and warns that future unauthorized filings may result in sanctions, including dismissal. ECF No. 67. 9 DISCUSSION 10 This duplicative case has been on the court’s docket for a year and three months at this 11 point, and it is no closer to resolution today than it was on the day if was filed. The docket shows 12 68 entries which reflect significantly more activity requiring the attention of the court and the 13 parties than is normally seen at this point in a litigation. Today, there is no litigable complaint on 14 file. Defendants have filed multiple Motions to Dismiss, surely at no small expense. Plaintiff has 15 objected to every action taken by the court, no matter how de minimus, requiring multiple orders 16 to be written only to draw another round of the same circular movement of paperwork. The time 17 has come to address a means of bringing this matter to a conclusion. 18 19 The court has considered three possible potential analytic models in addressing this case: 20 21 (1) Res judicata implications of the first filed complaint with regard to the present (2) Applicability of Federal Rules of Civil Procedure 41(b) based on the one; 22 23 contumaciousness of plaintiff, and his failure to accept the court’s Orders regarding application of 24 Rule 8 standards; and 25 26 (3) A. Applicability of Rule 12(b)(6) and how it could or should be applied in this case. Res Judicata 27 Because of the fact that many of the claims and a majority of the defendants sued for and 28 by plaintiff in both this case and 2:15-cv-01274 KJM GGH are one and the same, the court must 10 1 consider whether entry of the first matter upon dismissal with prejudice, and exhaustion of 2 plaintiff’s appeal rights, dictates that this matter should be dismissed under the doctrine of res 3 judicata. The Supreme Court has adopted the view that application of res judicata serves the 4 “public policy [that] dictate[s] that there be an end of litigation; that those who have contested an 5 issue shall be bound by the result of the contest; and, that matters once tried shall be considered 6 forever settled as between the parties.” Federated Department Stores, Inc. v., Moitie, 452 U.S. 7 394, (1981) quoting Baldwin v. Traveling Men’s Assn., 283 U.S. 522, 525 (1981). And even in 8 cases where the party that lost in the trial court failed to appeal, or as in this case failed to pursue 9 an appeal once filed, so long as the party made a calculated choice to act as it did, even a suspect 10 trial ruling will be upheld under the doctrine in service to the public policy. Id. at 401. The Ninth 11 Circuit has concurred in this philosophy of rigid enforcement of the doctrine. In Main v. HEW, 12 Health Care Financing Agency 769 F.2d 590, 594 (9th Cir. 1985) the court held that a party who 13 does not appeal, or as in this case fails to perfect his appeal, has “accepted the court’s final 14 rejection of is claims in one instance without appealing, [and] he can claim no fairness 15 requirement that he be allowed to continue to litigate the same claims in a different courtroom.” 16 Neither should a trial court, such as this one, shrink from enforcement of the policy 17 because of the waiver, either express or by silence, of the defense. Rather it may, and perhaps 18 should, in an appropriate case raise the bar on its own motion. Plaut v. Spendthrift Farm, Inc., 19 514 U.S. 211, 232 (1995) citing Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833. 20 851 (1986). See also Bragg v. Flint Brd of Education, 570 F.3d 775, 777 (6th Cir. 2009); 21 Simmons v. Chatham Nursing Home, 93 F.Supp.2d 1265, 1267 (S.D.Ga. 2000). 22 Further, the doctrine applies in those cases that are dismissed before the merits of the 23 action are reached such as is the case here. In In re Schimmels, 127 F3d. 874, 884 (9th Cir. 1997), 24 the Ninth Circuit clearly held that in the context of a similar dismissal under Rule 41(b), res 25 judiciata applied insofar as “[a]n involuntary dismissal generally acts as a judgment on the merits 26 for purposes of res judicata regardless of whether the dismissal result from a procedural error or 27 from the court’s considered examination of the plaintiff’s substantive claims.” (Emphasis added.) 28 Even if the dismissal under 41(b) was said to be “without leave to amend,” rather than under the 11 1 more decisive sounding term “with prejudice,” the Circuit has held that the dismissal is presumed 2 to be with prejudice unless otherwise stated for purposes of applying res judicata. Stewart v. 3 U.S. Bancorp, 297 F.3d 953 956 (9th Cir. 2002). This court therefor determines that if the 4 doctrine of res judicata is applicable in this case it must be applied to dismiss the matter, at least 5 with respect to the defendants in the previous case who are defendants in this case. 6 Res judicata dictates dismissal of claims previously litigated to a dismissal on the merits, 7 as well as claims that could have been brought in the original complaint. See Whole Woman’s 8 Health v. Hellerstedt, ___ U.S. ___, 136 S.Ct. 2292, 2303 (2016) citing Whole Womens Health v. 9 Cole 790 F.3d 453 (per curiam) modified 790 F.3d 598, (5th Cir. 2015). The elements necessary 10 to establish res judicata are “(1) an identity of claims (2) a final judgment on the merits, and (3) 11 privity between the parties.” Hells Canyon Preservation Council v. U.S. Forest Service, 403 F.3d 12 683, 686 (9th Cir. 2006). Therefore, in order to determine which defendants would be protected 13 by the application of the doctrine and which wouldn’t due to an absence of the “privity” 14 requirement of the doctrine would require that the new plaintiffs who were not sued in the first 15 complaint be shown to have been jeopardized by the retrying of the claims of the first complaint 16 against them thus entitling them to protection through the application of res judicata. 17 “Privity” covers several relationships. Of greatest applicability here is the privity that 18 “has been found where there is a “substantial identify” between the party and nonparty.” In re 19 Schimmels, 127 F.3d 874, 881 (9th Cir. 1997). The test is whether all of the parties to the instant 20 parties were either parties, or were intended by all concerned to be constrained by the ultimate 21 judgment in the action. Nevada v. U.S., 463 U.S. 11, 120 (1983). See also U.S. v. ITT Rayonier, 22 Inc., 627 F.2d 995, 1001 (9th Cir. 1980)(bar as to prosecution of successive partners), id. at1003, 23 (or bearing a relationship “of substantial identity” to earlier party) citing Chicago, R.I. & P. R. 24 Co. v. Schendel, 270 U.S. 611 621 (1980). Establishing “privity” in this case would, therefore, 25 engage the court in a prolonged analysis of the individual defendants sued in this case and those 26 sued in the original case to determine the degree of relationship each bears to the earlier named 27 defendants who are not named in the 2015 complaint. 28 //// 12 1 Assessing the applicability of this doctrine under the remainder of the standard in the 2 present case is somewhat difficult given the verbosity and organization of the plaintiff’s 3 complaints in the two cases. Nonetheless, it is clear that there is significant overlap in the 4 substance of the two Complaints disclosed in the captions, each of which identifies the overall 5 claims being brought. In the original Complaint the actions are characterized as “Action at Law 6 for Civil Rights Violations; Violations of Federal Safe drinking Water Act and Clean Water Act; 7 Pendent State Claims,” and “Request[s] for Preliminary and Permanent Injunctions; Declaratory 8 Relief.” 2:15-cv-01274-MCE-AC. In the newer Complaint the actions are characterized 9 substantially identically, except the second action adds a claim for relief pursuant to the Fair 10 Labor Standards Act in addition to those listed above. 2:16-cv-965-KJM-GGH. 11 Thus, on its face, with the caveats discussed below, the two complaints share an identity 12 of claims, and again, claims which could have been brought in the original case but weren’t are 13 barred by res judicata as well. However, the present complaint dates many of its claims, but not 14 all, from December 4, 2015, which post-dates the filing of the first action by several months. Res 15 judicata could not apply to “new” claims no matter how similar to the old claims, i.e, these claims 16 could not have been brought in the earlier action. Accordingly, res judicata will only apply to 17 those claims which were or could have been brought as of the filing date of the first action—June 18 15, 2015. 19 Further, although there is clearly an overlap of some parties to the two actions, not all 20 defendants that appear in the 2015 complaint are named in the 2016 complaint. Based on the 21 statements of plaintiff in his objections to this court’s prior orders, the Board membership 22 changed between the first action and the present one, and the court can also see that he has added 23 lawyers who have taken on responsibilities with regard to various defendants that were not sued 24 in the first case and apparently eliminated lawyers who represented now abandoned defendants. 25 The defendants common to both actions are the Hornbrook Community Services District, 26 Hanson, Winston, Bowles, Dingman, Goff, Hornbrook Community Bible Church, Crittenden, and 27 the law firm Murphy, Pearson, etc. Because the matter of res judicata is being raised sua sponte 28 by the court, and due to the lack of facts on record, the undersigned will not attempt to determine 13 1 if the uncommon defendants in the second action could bring a res judicata argument based on 2 privity of parties. Accordingly, res judicata is limited to the defendants common to both actions. 3 In this case, especially when comparing plaintiff Gifford’s pleadings, with those of 4 another “disgruntled ex-employee of the district, Peter T. Harrell, see docket in Harrell v. 5 Hornbrook Community Services District, 2:14-c-01595 KJM GGH, still pending, one is left with 6 a deep conviction that these two plaintiffs are working together to destroy this District although to 7 what end can only be speculated. Perhaps they hope to be the saviors who pick up the pieces 8 after the dust of their twin litigations clears, and then they can run the District as they believe it 9 should be run. Comparing both the optics and the content of the two sets of complaints shows a 10 remarkable, almost carbon copy, likeness between the claims made by these plaintiffs, the format 11 they use, and the arguments they make. And, both of them are equally committed to ignore the 12 Rules laid out by this court and Magistrate Judge Allison Claire who was responsible for rulings 13 in this case before it was related to the undersigned to the point of insisting that these Rules are 14 not being properly interpreted. In any event, the feeling of collusion that is raised by these 15 similarities cannot be ignored. 16 Accordingly, to the extent that plaintiff’s claims in his second action pre-date June 15, 17 2015, and are applicable to the parties listed as common to both actions, res judicata bars 18 plaintiff’s second action. 19 B. Federal Rule of Civil Procedure 41(b) 20 Analyzing the complaint purely under Rule 41(b), there are more than sufficient grounds 21 to dismiss the Second Amended Complaint with prejudice under the Rule. The court previously 22 ordered plaintiff to reduce his complaint to 25 pages, and plaintiff has refused to do so. The 23 discussion starts, however, with an iteration of the reasons why plaintiff was ordered to limit his 24 complaint to 25 pages. 25 In McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996) the Circuit Court affirmed a dismissal 26 under Federal Rules 8, 12 and 41 after plaintiff had been given three opportunities to draft a 27 complaint that comported to the foregoing Rules as they had been explained in prior court orders 28 dismissing with leave to amend. 84 F.3d at 1176. The issue there was the massive inclusion of 14 1 irrelevant factual information in a complaint that was prolix and confusing but not nearly as 2 egregiously so as the one being analyzed here. The original complaint in McHenry was thirty- 3 five pages long but was never served. Instead it was preplaced by an Amended Complaint that 4 was thirty-seven pages long and was “mostly an extended narrative of the details of the various 5 activities of plaintiff McHenry,” and failed to distinguish between defendants who played roles in 6 each of his two claims for relief and included conspiracy allegations involving numerous players 7 in Mr. McHenry’s drama. Id. at 1174. The trial court dismissed this complaint with instructions 8 regarding the content of any second amended complaint. Id. at 1175. The second amended 9 complaint “contained identically argumentative and prolix allegations which now required fifty- 10 three pages to complete and “mixed allegations of relevant facts, irrelevant facts, political 11 argument, and legal argument in a confusing way.” Id. at 1175. The trial court gave plaintiff one 12 more chance to formulate a satisfactory complaint this time suggesting he would be “well advised 13 to edit or eliminate [the] twenty-six page introduction and focus on linking . . . factual allegations 14 to actual legal claims. The purpose of the court system is not after all, to provide a forum for 15 storytelling or political griping, but to resolve legal disputes.” Id. at 1176. Mr. McHenry, 16 however, eschewed the court’s advice and filed a third amended complaint which “still read[] like 17 a magazine story instead of a traditional complaint,” and the pleading now stretched to fifty-three 18 pages. Id. After receiving analysis from a magistrate judge the court finally dismissed this last 19 effort without leave to amend under Rule 41(b) for plaintiff’s violation of its last order. Id. at 20 1177. 21 Many courts have followed the reasoning of McHenry to rid the system of complaints like 22 the instant one.6 In Polk v. Beard, 2014 WL 4765611 (C.D.Cal. June 20, 2014), the Central 23 District of California was faced with a situation similar to the one here in that each time a new 24 pleading was filed it exceeded the one before it , id. at *1-3, with little or no attention paid to the 25 orders of the court, id. at *4, and, after applying the standard set out in Ferdick v. Bonzelet, 963 26 27 28 6 See headnote 8 to the McHenry case which reflects that 286 cases have cited the opinion regarding the obligation of the court to consider the rights of litigants awaiting their turn to have their matters heard in a situation such as the one addressed here. 15 1 F.2d 1258-1250-1261 (9th Cir. 1992), which will be discussed below, dismissed the complaint 2 with prejudice, noting that “judges are not like pigs hunting for truffles buried in briefs.” Id. at 3 *5, quoting U.S v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)(per curiam).7 In Gottschalk v. City 4 and County of San Francisco, 964 F.Supp. 2d 1147 (N.D.Cal. 2013), the court dealt with a 5 complaint that violated Rule 8 insofar as it consisted of incomprehensible rambling, id. at 1154, 6 largely conclusionary allegations and generalized political grievances or conspiracy. Id. at 1155. 7 While the undersigned acknowledges that sheer length of a complaint standing alone may not 8 warrant the dismissal of a complaint under McHenry, and the Ninth Circuit so held in Hearns v. 9 San Bernardino Police Dept., 530 F.3d 1124, 1131 (9th Cir. 2008), where the complaint was 10 characterized as “intelligible” and “logically organized,” albeit overly detailed, id, it has also 11 acknowledged that it has not held and knows “of no authority supporting the proposition—that a 12 pleading may be of unlimited length and opacity.” Carfasso, U.S. ex rel. v. General Dynamics C4 13 Systems, Inc., 637 F.3d 1047, 1058 (9th Cir. 2011)(distinguishing Hearns). In so acting, the Court 14 pointed to the fact that the amended complaint in Carfasso ran to 733 pages, nine times longer 15 than the 81 page complaint in Hearns, thus providing the district court with “ample discretion” to 16 deny further amendment. Id. at 1059. 17 Accordingly, there was more than sufficient justification for ordering the limitation of 18 pages as directed by the court addressing this matter. Nevertheless, the justification of the prior 19 limitation order is not the end of the analysis. Several factors need to be considered before 20 dismissal of a case for failure to obey court orders. An application of the Ferdick, supra, 21 standards easily supports the dismissal of this Complaint. 963 F.2d at 1261. 22 1. 23 This interest would not be compromised if the court exercised its inherent power to The Public’s Interest in Expeditious Resolution of Litigation 24 dismiss this case that has been through two iterations spanning a year and continues to 25 incorporate over 100 paragraphs of precatory facts into each of the 27 Counts of the first action 26 and the 31 Counts of the second. How the court and the parties are to structure discovery 27 28 7 The Ninth Circuit very recently affirmed the dismissal in an unpublished decision found at 2017 WL 2839502 (9th Cir. July 3, 2017). 16 1 proceedings that will clarify the application of facts to law in a reasonable way, especially in light 2 of plaintiff’s adamant refusal even to attempt to truncate the seemingly endless pleading now on 3 file, is an unreasonable requirement for the undersigned, even with its 28 years of experience on 4 the bench, unreasonable to any judge and presumably unreasonable to any opposing attorney. 5 This element, therefore, supports the court’s determination to dismiss the Second Amended 6 Complaint with prejudice under Rule 41(b). 7 2. 8 The docket sheet in this case as produced 20 filings by the parties and the court in the The Court’s Need to Manage its Docket 9 fourteen months it has been pending, and is still in the pleading phase and 68 docket entries 10 overall. None of the various briefs and arguments that have ensued have been successful in 11 moving the case even to the point where it is at issue and can begin to be prepared for trial. Many 12 other litigants compete for the court’s attention in order to reach “the just, speedy and inexpensive 13 determination of every action and proceeding” that Federal Rule of Civil Procedure 1 makes clear 14 is the point of the federal system. Plaintiff’s goal, on the other hand, seems exactly the opposite 15 of that purpose insofar as he has moved through a series of actions that appear designed to make 16 it ever more impossible to reach that goal.8 This element favors the court’s inclination to dismiss 17 with prejudice. 18 3. 19 There is no risk of prejudice to defendants should this case be dismissed with prejudice. 20 As the procedural history of the case demonstrates, they have briefed both iterations of this case 21 multiple times getting nothing for their efforts but another expenditure of resources. This element 22 favors the court’s inclination to recommend dismissal without leave to amend, and with prejudice. The Risk of Prejudice to the Defendants 23 4. 24 Obviously, the action the court contemplates would arrest this case short of resolution on The Public Policy Favoring Disposition of Cases on Their Merits 25 the merits, but should not weigh heavily enough to deny the application of that action. The 26 chances of this case reaching disposition in any estimable amount of time is, given its posture 27 28 8 Exemplary of this tactic is the fact that each attorney who appears in these matters ultimately ends up with being named as a defendant or subjected to motions to disqualify. 17 1 now and the obvious stubbornness and contumacious behavior of the plaintiff, are abundantly 2 clear, i.e., there is no realistic chance of reaching the true merits of this lawsuit whatever they are. 3 5. 4 The less drastic alternative available here is to dismiss the complaint without prejudice The Availability of Less Drastic Alternatives 5 and allow plaintiff to amend one more time. However, if this were required it is obvious at this 6 point that the amended complaint would not be Rule 8 compliant nor comply with the court order 7 limiting the complaint to 25 pages. Moreover, Plaintiff has made clear in his objections to 8 various of the court’s rulings that he would not amend even if given the opportunity, for he has 9 chosen to stand on the present complaint on the ground that the court does not correctly interpret 10 Rule 8, is prejudiced against pro se plaintiffs, and is generally focused on getting rid of such 11 plaintiffs at every opportunity. Thus, the normal less drastic alternative is not available here, nor 12 is it appropriate at this juncture in any event. 13 Although this court believes that Rule 41(b) is the best basis for dismissing this Complaint 14 without leave to amend and with prejudice as it not only gets the case to the appellate court to 15 resolve finally, but it also makes clear to those who write complaints that they must follow the 16 Rules to proceed with litigation and they must obey court orders. On the other hand, the Ninth 17 Circuit has made a recent ruling that suggests the matter should be resolved pursuant to Rule 18 12(b)(6). 19 C. 20 Federal Rule of Civil Procedure 12(b)(6) As did Mr. Harrell earlier, see Case 2:14-cv-01595 KJM GGH, Docket entry ECF No. 148 21 at 9:22-11:7, plaintiff here has elected to “stand on his complaint.” ECF No. 66:18-23. In so 22 doing he cites Edwards v. Marin Park, Inc., 356 F.3d 1058 (9th Cir. 2004). 23 The Ninth Circuit Court of Appeals addressed the issue of whether a complainant whose 24 Complaint was dismissed without prejudice could nontheless appeal the Order in Lopez v. City of 25 Needles, Cal., 95 F.3d 20 (9th Cir. 1996). In Lopez the plaintiff’s complaint had been dismissed 26 with leave to amend and plaintiff filed an appeal of the decision. 95 F.3d at 22. The court held 27 that whereas “[o]rdinarily an order dismissing a complaint but not dismissing the action is not 28 appealable under section 1291 the [appellant] is not required to amend in order to preserve his 18 1 right to appeal” and could render the Order immediately appealable if she “files in writing a 2 notice of intent not to file an amended complaint.” Id. Whereas Lopez did not give such a 3 written notice leading to dismissal of her appeal for lack of jurisdiction, plaintiff here has given 4 such notice in writing. 5 In WMX Technologies, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)(en banc), the court 6 again made clear that a plaintiff who had his complaint dismissed with leave to amend could not 7 immediately appeal that decision since it was not final, but if “a plaintiff files in writing a notice 8 of intent not to file an amended complaint, . . . filing of such a notice gives the district court an 9 opportunity to reconsider, if appropriate, but more importantly, to enter an order dismissing the 10 action, [an order] that is clearly appealable.” 104 F.3d at 1135 quoting Lopez. The case cited by 11 plaintiff, Edwards, supra, iterated this holding stating that a plaintiff “may obtain an appealable 12 final judgment by ‘fil[ing] in writing a notice of intent not to file an amended complaint.’” 356 13 F.3d at 1064. 14 Thus, when a plaintiff clearly communicates his choice to stand on his complaint he has 15 not disobeyed the court’s Order in such a way as to invite a Rule 41(b) dismissal, but he has 16 transformed the court’s threat of dismissal for disobedience of its order into a “final, appealable 17 judgment.” Id. at 1064. In so holding the court noted that there is more than a formal difference 18 between a dismissal under Rule 41(b) and one under Rule 12(b)(6) insofar as the former is 19 deemed a sanction for disobedience while the latter “carries no such stigma,” but permits 20 appellate review directly upon the question of whether the plaintiff has stated a claim upon which 21 relief can be granted. Id. at 1065. 22 There is some question in the undersigned’s mind whether Edwards, et al, fit the situation 23 here. In that case cited for the proposition of permitting appeal in the pleading stage, the plaintiff 24 had received a ruling on the merits of the claims albeit some of the claims had been dismissed for 25 failure to allege facts with specificity, but because of the perceived error of law on the merits, 26 plaintiff was desirous of receiving a final ruling on the legal issues from the court of appeal. 27 Here, plaintiff contests not dismissal of his claims on the merits but rather the Magistrate Judge’s 28 and the District Judge’s conclusions that the Second Amended Complaint was a hopeless mish19 1 mash of verbose narrative and prolix claims which were entwined with the narrative, including 2 some of the many footnotes, and ordering that he limit his pleading to a succinct 25 pages – a 3 procedural ruling and not a ruling on the legal merits of the claims. It is difficult to conceive that 4 such becomes a determination that specific claims lacked a legal basis -- a point at which this 5 court has been unable to arrive. The point of the previous dismissal with leave to amend was that 6 the prolixity denied defendants a fair opportunity to identify and respond to the claims. 7 But perhaps the rule conundrum is now a distinction without a difference. If plaintiff 8 receives a Rule 41 final dismissal, it is appealable; if he receives a Rule 12 (b) dismissal, it is 9 appealable. Although the standards for review of the different dismissals differ, the facts and 10 rulings germane to the appeal do not change simply because a different rule number is applied to 11 decide them in this court. 12 CONCLUSION 13 But for the plaintiff’s invocation of Edwards, et al., this court has no doubt that the 14 contumacious behavior of plaintiff would meet all the criteria for a Rule 41(b) dismissal. 15 Edwards, however, may require a dismissal pursuant to Rule 12(b)(6) which will allow the Ninth 16 Circuit to review the entirety of the record and determine whether plaintiff may proceed with this 17 litigation. The best way to resolve this case is, therefore, to issue alternate rulings with respect to 18 a Rule 41(b) and Rule 12(b)(6) dismissal. 19 In light of the foregoing, IT IS HEREBY FOUND AND RECOMMENDED that: 20 1. The Second Amended Complaint be dismissed on res judicata grounds to the 21 extent that the claims therein pre-date June 15, 2015, and are stated against the defendants 22 common to both actions identified previously; 23 24 2. Federal Rule of Civil Procedure 41(b); or, in the alternative, that: 25 26 3. Plaintiff’s Second Amended complaint be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). 27 28 Plaintiff’s Second Amended complaint be dismissed with prejudice pursuant to 4. The Clerk of the Court should close this file. //// 20 1 These Findings and Recommendation are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after 3 being served with these Findings and Recommendations, the parties may file written objections 4 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 5 and Recommendations.” The parties are advised that failure to file objections within the specified 6 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 7 (9th Cir.1991). 8 Dated: August 17, 2017 9 10 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?