Filing 48

ORDER GRANTING MOTION TO DISMISS AND DENYING SANCTIONS. Signed by Judge William H. Orrick on 07/17/2017. (jmdS, COURT STAFF) (Filed on 7/17/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IVETTE RIVERA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 13 Case No. 3:16-cv-04959-WHO ORDER GRANTING MOTION TO DISMISS AND DENYING SANCTIONS v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEESS, AFL-CIO, LOCAL 444, Re: Dkt. No. 25, 29, 41 Defendant. INTRODUCTION 14 Plaintiff Ivette Rivera was an employee of the East Bay Municipal Utility District 15 (“EBMUD”), a public entity in Alameda County. During her time as an employee with EBMUD, 16 Defendant Local 444 of the American Federation of State, County, and Municipal Employees 17 (“Local 444”) was her exclusive bargaining representative. She previously filed a pro se lawsuit 18 in this district against EBMUD, Local 444, and a number of individuals alleging that EBMUD’s 19 refusal to reclassify her as a supervisor was tantamount to discrimination on the basis of her sex; 20 as a result, she was underpaid and then retaliated against for protesting that alleged discrimination 21 and unequal pay. In that action, her claims against Local 444, brought under Title VII of the Civil 22 Rights Act of 1964 (“Title VII”) and the Equal Pay Act (“EPA”), were dismissed with prejudice. 23 She now brings the same claims, based upon the same facts, against the same party. Because this 24 action is prohibited under the doctrine of claim splitting, Local 444’s motion is GRANTED. 25 Rivera’s complaint is DISMISSED WITHOUT LEAVE TO AMEND. But because her complaint 26 was not brought in bad faith, she need not be imposed the extreme penalty of sanctions. 27 28 BACKGROUND 1 2 I. RIVERA’S PRIOR LAWSUIT 3 In 2015, Rivera brought a pro se action in the Northern District of California against her 4 5 6 7 former employer, East Bay Municipal Utility District (“EBMUD”), Local 444 of the American Federation of State, County, and Municipal Employees (“Local 444”), and a number of individual defendants. See 2015 First Am. Compl. (“2015 FAC”)(Def.’s Request for Judicial Notice, ¶ 1, Ex. A, Dkt. No. 27-1).1 She alleged that she complained to the EBMUD Board repeatedly about her 8 improper categorization as a non-supervisor, 2015 FAC ¶ 45, that EBMUD and Local 444 9 prevented her from joining the supervisors’ union, Local 21, Id. ¶ 100, that EBMUD informed her 10 that she would have to make any complaints through her union, Local 444, Id. ¶ 58, and that when 11 United States District Court Northern District of California she filed complaints with EBMUD anyway, they retaliated against her by declining to process her 12 complaints. Id. ¶ 101. On the basis of these facts, she asserted claims against Local 444 for 13 employment discrimination and retaliation under Title VII and for violation of the Equal Pay Act. 14 Id. ¶¶ 99-101. 15 The EBMUD defendants and the Union defendants separately moved to dismiss Rivera’s 16 complaint. See Rivera v. E. Bay Mun. Util. Dist., No. C 15-00380 SBA, 2015 WL 6954988, at *1 17 (N.D. Cal. Nov. 10, 2015)(“Prior Order”). On November 10, 2015, the Honorable Saundra Brown 18 19 20 21 22 23 24 25 26 27 28 1 Local 444 filed two Requests for Judicial Notice (“RJN”) of documents filed by Rivera in the 2015 action, Rivera v. E. Bay Mun. Util. Dist., No. C 15-00380 SBA, 2015 WL 6954988 (N.D. Cal. Nov. 10, 2015). The first seeks judicial notice of the following documents: (1) Rivera’s First Amended Complaint (filed July 7, 2015) (Ex. A, Dkt. No. 27-1); (2) the “Register of Actions” (Ex. B, Dkt. No. 27-2); (3) the “Notice of Appearance” by counsel for Rivera (filed November 25, 2015) (Ex. C, Dkt. No. 27-3); and (4) the “Order for Pretrial Preparation” (filed April 21, 2016) (Ex. D, Dkt. No. 27-4). Local 444’s “Second Request for Judicial Notice,” seeks notice of the following documents: (1) “Plaintiff’s Opposition to Union Defendants’ Motion to Dismiss the First Amended Complaint,” (filed September 2, 2015) (Ex. E, Dkt. No. 35 at 4) and (2) the “Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss Plaintiff’s First Amended Complain[t] Pursuant to Fed. R. Civ. P[.] 12(b)(6)” (filed August 19, 2015) (Ex. F, Dkt. No. 35 at 11). Under Federal Rule of Evidence 201, a court “may take judicial notice of matters of public record” on a motion to dismiss, provided the fact is not “subject to reasonable dispute.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). I may therefore take notice of proceedings in another case, provided I do not do so “for the truth of the facts recited therein” but merely for “the existence” of those proceedings, the authenticity of which is not subject to reasonable dispute. Id. at 690. There can be no reasonable dispute as to the authenticity of the above-mentioned documents, or to the fact that the previous action was filed and prosecuted by Rivera. Defendants’ requests are GRANTED. 2 1 Armstrong dismissed all of Rivera’s claims against each of the defendants. Prior Order at *1. 2 Judge Armstrong granted leave to amend only as to EBMUD. Id. at *8–9. On November 11, 3 2015, David Poore entered a notice of appearance as counsel for Rivera. Dkt. No. 27-3. Until this 4 point, Rivera had represented herself. See 2015 FAC at 28 (filed by “Ivette Rivera, Pro Se 5 Plaintiff”). Poore represents Rivera in the present action as well. 6 II. 7 THE PRESENT ACTION Rivera filed this action on August 29, 2016, alleging the same claims stemming from the 8 same set of facts, against Local 444. Compare Compl. (Dkt. No. 1), with 2015 FAC (Dkt. No. 27- 9 1). According to Rivera, EBMUD hired her on January 24, 2005, to be a “Gardener Foreman.” Compl. ¶ 7. This entailed supervising and managing a large portion of the gardening and grounds 11 United States District Court Northern District of California 10 maintenance staff in the West Division of EBMUD. Id. In December 2013, she spoke to the 12 EBMUD Board about “her concerns of discrimination and unequal pay for females in the 13 workplace.” Id. ¶ 8. Specifically, she complained that she had been misclassified as a non- 14 supervisory employee and was not paid the same as men who performed similar functions. Id. ¶ 9. 15 She asked that she and similar employees be properly classified and allowed to join Local 21, the 16 supervisors’ union. Id. Rivera informed the Board that when men had previously held “foreman” 17 positions they were classified as supervisors at the request of Local 444 and moved to Local 21. 18 Id. She also informed Local 444 of these concerns. Id. 19 Subsequently, Local 444 and EBMUD changed the internal complaint process to require 20 employees to file all equal employment opportunity complaints through Local 444. Id. ¶ 10. 21 After that change, Rivera reiterated her concerns to the EBMUD Board on January 14 and January 22 28, 2014. Id. ¶ 12. On January 28, 2014, EBMUD Director Frank Mellon told Rivera that 23 EBMUD would not investigate or process her complaints on the basis that such matters were 24 “owned” by Local 444. Id. ¶ 13. Rivera nonetheless filed a discrimination and unequal pay 25 complaint with the Board. Id. EBMUD “took the position that they were going to … strip 26 Plaintiff of her supervisory duties.” Id. Rivera alleges that Local 444 refused to issue any 27 complaints or grievances to EDMUD, refused to properly classify her as a supervisor, interfered 28 with her rights under Title VII, and failed to transfer her to the supervisor’s union, Local 21. Id. ¶ 3 1 14. On the basis of these allegations, Rivera brings claims for gender discrimination, id. ¶¶ 16–21, 2 and retaliation, id. ¶¶ 22–27, under Title VII, and for negotiation of unequal wages under the 3 Equal Pay Act, id. ¶¶ 28–31. 4 LEGAL STANDARD 5 A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 6 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 7 2001). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable 8 legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela 9 Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While a complaint “need not contain detailed factual allegations” to survive a Rule 12(b)(6) motion, “it must plead enough facts to state 11 United States District Court Northern District of California 10 a claim to relief that is plausible on its face.” Cousins v. Lockyer, 568 F.3d 1063, 1067-68 (9th 12 Cir. 2009) (internal quotation marks and citations omitted). A claim is facially plausible when it 13 “allows the court to draw the reasonable inference that the defendant is liable for the misconduct 14 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal 15 quotation marks omitted). In considering whether a claim satisfies this standard, the court must 16 “accept factual allegations in the complaint as true and construe the pleadings in the light most 17 favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 18 1031 (9th Cir. 2008). However, “conclusory allegations of law and unwarranted inferences are 19 insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins, 568 F.3d at 1067 (internal quotation 20 marks omitted). 21 22 DISCUSSION Rivera’s prior suit was based on the same set of facts, and included the same claims against 23 the same defendant. In that action, her Title VII and EPA claims were dismissed without leave to 24 amend as to Local 444. Prior Order at *8–9. The court also determined that the claims against 25 Local 444 were “objectively baseless.” Id. at *10. Rivera brings the same claims here. 26 Local 444 now moves to dismiss Rivera’s current action with prejudice on the basis that 27 she has impermissibly split her claims. Mot. to Dismiss (“MTD”)(Dkt. No. 25). It also seeks 28 sanctions under Rule 11, 28 U.S.C. §1927, and the court’s inherent powers because the current 4 1 action is “an unreasonable multiplication of proceedings.” MTD at 11; see also Mot. for 2 Sanctions (Dkt. No. 29); Mot. for Sanctions Under 28 U.S.C. § 1927 (Dkt. No. 41). 3 I. MOTION TO DISMISS The doctrine of claim-splitting bars a party from bringing claims arising from the same set 4 5 of facts in successive actions, rather than bringing them all at once. United States v. Haytian 6 Republic, 154 U.S. 118, 125 (1894) (explaining that a party is “not at liberty to split up his 7 demand, and prosecute it by piecemeal, or present only a portion of the grounds upon which 8 special relief is sought, and leave the rest to be presented in a second suit, if the first fail. There 9 would be no end to litigation if such a practice were permissible.”); see also Adams v. California Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007)(“Plaintiffs generally have no right to 11 United States District Court Northern District of California 10 maintain two separate actions involving the same subject matter at the same time in the same court 12 and against the same defendant.”) (internal quotation marks omitted), overruled in part on other 13 grounds by Taylor v. Sturgell, 553 U.S. 880 (2008).2 It exists to “protect the Defendant from 14 being harassed by repetitive actions based on the same claim.” Clements v. Airport Auth. of 15 Washoe Cty., 69 F.3d 321, 328 (9th Cir. 1995). The doctrine “borrow[s] from the test for claim 16 preclusion[,]” but rather than requiring that the first suit have a final determination on the merits, it 17 “assum[es] that the first suit were already final.” Adams, 487 F.3d at 688–89 (quoting another 18 source). If a court determines that a party has impermissibly split her claims, it may exercise its 19 discretion to “dismiss [the] duplicative later-filed action, to stay that action pending resolution of 20 the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both 21 actions.” Id. at 689. Rivera attempts to avoid the doctrine here by insisting that her “original Title VII action 22 23 was dismissed for failure to obtain a Right to Sue from the EEOC[.]” Oppo. 2 (Dkt. No. 31). She 24 then argues that because there was no adjudication on the merits, the doctrine of res judicata does 25 26 27 28 2 Adams was overruled to the extent it relied on a doctrine known as “virtual representation[,]” an “exception to the rule against nonparty preclusion.” See Taylor, 553 U.S. at 895. That doctrine is not at issue here, and “the Adams court’s discussion of impermissible claim-splitting remains precedential.” Lennar Mare Island, LLC v. Steadfast Ins. Co., 2016 WL 3197390, at *2 (E.D. Cal. June 8, 2016). 5 1 not apply. See id. 3–6. 2 There are two problems with Rivera’s argument. First, there is no basis to argue that the 3 Prior Order dismissed plaintiff’s claims for failure to exhaust administrative remedies. See infra 4 section I.A. Second, she offers no authority suggesting that the claim splitting doctrine requires 5 final adjudication on the merits.3 While she confusingly refers to the doctrines of claim-splitting 6 and res judicata interchangeably, they are not synonymous. See Curtis v. Citibank N.A., 226 F.3d 7 133, 138 (2d Cir. 2000)(“The rule against duplicative litigation is distinct from but related to the 8 doctrine of claim preclusion or res judicata.”). The critical difference is that the claim-splitting 9 doctrine does not require a final decision in the first action. Adams, 487 F.3d at 688-689 (affirming dismissal of second suit for claim-splitting while first suit was still pending); see also 11 United States District Court Northern District of California 10 Single Chip Sys. Corp. v. Intermec IP Corp., 495 F. Supp. 2d 1052, 1059 (S.D. Cal. 12 2007)(interpreting Adams as not requiring a final judgment). Accord Curtis, 226 F.3d at 139 13 (“[P]laintiffs have no right to maintain two actions on the same subject in the same court, against 14 the same defendant at the same time.”); Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th 15 Cir.2012) ( “[A] suit is duplicative if the claims, parties, and available relief do not significantly 16 differ between the two actions.”)(internal quotation marks omitted); Katz v. Gerardi, 655 F.3d 17 1212, 1219 (10th Cir. 2011) (“If the party challenging a second suit on the basis of claim splitting 18 had to wait until the first suit was final, the rule would be meaningless.”); Vanover v. NCO Fin. 19 Servs., Inc., 857 F.3d 833, 840 n.3 (11th Cir. May 17, 2017) (“The ‘claim splitting doctrine’ 20 applies where a second suit has been filed before the first suit has reached a final judgment.”). 21 The only way to reach Rivera’s conclusion is to ignore the plain language in the Prior Order, 22 creatively interpret Judge Armstrong’s analysis, and disregard Ninth Circuit precedent. I can do 23 none of those things, and must conclude that this action is barred by the doctrine against claim- 24 splitting. 25 26 27 28 3 In fact, her own cases suggest the contrary. See Oppo. 2 (citing Katz v. Gerardi, 655 F.3d 1212, 1217–19 (10th Cir. 2011), which states, “[w]hile it is correct that a final judgment is necessary for traditional claim preclusion analysis, it is not required for the purposes of claim splitting.”). 6 1 A. The Prior Order 2 Rivera argues that her prior action was dismissed against Local 444 for failure to exhaust 3 by looking through the Prior Order to Local 444’s underlying motion and finding that “[t]he sole 4 argument contained in the motion to support the dismissal of the Title VII claim against Local 5 444 was that Plaintiff had failed to properly exhaust her administrative remedies.” Oppo. 3 (Dkt. 6 No. 31)(emphasis in original). But this analysis ignores the plain language in the Prior Order. In 7 analyzing Rivera’s employment claims, Judge Armstrong cited Miller v. Maxwell's Intern. Inc., 8 991 F.2d 583, 587 (9th Cir. 1993), for the proposition that “[u]nder Title VII, only the plaintiff's 9 employer is a proper party-defendant.” Prior Order at *8 n.10. She then concluded that “[s]ince EBMUD is alleged to be Plaintiff's employer, all other Defendants are improper parties to 11 United States District Court Northern District of California 10 Plaintiff's Title VII claim.” Id. (emphasis added). The court proceeded to dismiss Rivera’s Title 12 VII claims for failure to allege sufficient facts,4 and granted leave to amend “as to EBMUD only.” 13 Id. at *8–9. As for Rivera’s EPA claim, Judge Armstrong found that “[p]laintiff’s claims are 14 centered on the fact that she was not reclassified as a supervisor—not that men and women are 15 paid differently for substantially equal work.” Id. at *9. She dismissed it without leave to amend. 16 Id. The Miller court affirmed the rule that “individual defendants [who are not employers] 17 18 cannot be held liable for damages under Title VII[,]” but it said nothing about the liability of 19 unions. See Miller, 991 F.2d at 587. Perhaps this is why Rivera is confused. Other than citing 20 Miller, the court provided no additional basis for dismissing all defendants other than EBMUD. 21 Unlike individuals, labor organizations can be held liable for unlawful employment practices 22 under Title VII. See 42 U.S.C.A. § 2000e-2(c). However, rather than raise the issue with Judge 23 Armstrong, Rivera apparently assumed that Local 444 was dismissed for failure to exhaust and 24 25 26 27 28 4 In analyzing the Title VII employment discrimination claim, the court found that Rivera “fail[ed] to allege any facts to support her contention that her gender bore any relation to Defendants’ handling of her request for reclassification.” Id. at *8. And it dismissed Rivera’s Title VII retaliation claim because she “failed to allege a plausible claim for retaliation under Title VII.” Id. at *9. The court noted that she “failed to establish that she engaged in a protected activity[,]” and further, “[e]ven if protected activity were alleged, there [were] no facts demonstrating a causal link between her activity and any adverse employment action.” Id. 7 1 proceeded to exhaust her administrative remedies prior to filing this action. Her assumption has 2 no basis in the plain language of the Prior Order. She asks me to accept her assumption without 3 corroboration but I cannot take that leap with her; I must defer to the judgment in the Prior Order. 4 As Local 444 points out, Reply 6 (Dkt. No. 34), to the extent there was any ambiguity as to the 5 Prior Order and Judge Armstrong’s basis for dismissing Local 444, Rivera should have raised the 6 issue with Judge Armstrong. See Civ. L. R. 7-9(b)(3)(listing grounds for filing a motion for 7 reconsideration). While Judge Armstrong states the rule for administrative exhaustion near the beginning 8 9 of the Title VII analysis, there is no indication anywhere in the opinion that she grounded her decision on Rivera’s failure to exhaust. But even if Rivera’s claims were dismissed for failure to 11 United States District Court Northern District of California 10 exhaust, the doctrine against claim splitting applies.5 12 B. 13 Having disposed of Rivera’s arguments that the prohibition against claim-splitting does not This Action is Duplicative of the Prior Action 14 apply, the remainder of the analysis is straightforward. “[I]n assessing whether the second action 15 is duplicative of the first, we examine whether the causes of action and relief sought, as well as the 16 parties or privies to the action, are the same.” Adams, 487 F.3d at 689. “The most important 17 criterion in determining whether the two actions are the ‘same’ is ‘whether the two suits arise out 18 of the same transactional nucleus of facts.’” Bojorquez v. Abercrombie & Fitch, Co., 193 F. Supp. 19 3d 1117, 1123 (C.D. Cal. 2016). This action is indisputably the same: the causes of action are the 20 same and they are alleged against a defendant who was a party to the Prior Action. While Rivera 21 alleges some additional facts here, she does not even challenge that conclusion.6 22 23 24 25 26 27 28 5 If Rivera is correct that Judge Armstrong dismissed Local 444 for failure to exhaust, and did so with prejudice, she may be able to raise the issue on appeal. See Lebron-Rios v. U.S. Marshal Serv., 341 F.3d 7, 8–9 (1st Cir. 2003)(“We hold that the district court's dismissal should have been without prejudice to any later Title VII action brought by the plaintiffs on properly exhausted claims.”). But that does not impact my analysis here. 6 This case is premised on the same facts as those alleged in Rivera’s previous suit: Rivera was improperly classified as a non-supervisor, 2015 FAC ¶¶ 54, 56-58 Compl. ¶ 7, EBMUD and Local 444 attempted to prevent Rivera from filing formal unequal pay and sex discrimination complaints, 2015 FAC ¶¶ 49-50, Compl. ¶¶ 10, 14-15, and Rivera faced retaliation when she filed those complaints anyway. 2015 FAC ¶¶ 49, 100; Compl. ¶ 11. 8 1 Because this action is duplicative of the still-pending action before Judge Armstrong, 2 Rivera’s claims are barred by the doctrine of claim-splitting, and her complaint cannot be cured by 3 amendment. See Agha-Khan v. United States, 2015 WL 5734380, at *6 (E.D. Cal. Sept. 29, 2015) 4 (dismissing claims with prejudice where, among other fatal flaws, suit constituted impermissible 5 claim-splitting). Local 444’s motion to dismiss with prejudice is GRANTED. 6 II. MOTION FOR SANCTIONS There are three sources of authority under which a court may sanction parties or their 7 8 counsel: “(1) Federal Rule of Civil Procedure 11, which applies to signed writings filed with the 9 court, (2) 28 U.S.C. § 1927, which is aimed at penalizing conduct that unreasonably and vexatiously multiplies the proceedings, and (3) the court's inherent power.” Fink v. Gomez, 239 11 United States District Court Northern District of California 10 F.3d 989, 991 (9th Cir. 2001). Local 444 seeks approximately $30,000 in sanctions against Rivera and her attorney, 12 13 Poore, under all three, for the filing of her complaint in this action. MTD at 6 (requesting 14 $29,295.51 in sanctions under Section 1927 and the court’s inherent powers); First Mot. for 15 Sanctions at 7-8 (Dkt. No. 29) (requesting sanctions for “attorneys’ fees and costs to Defendant” 16 in the amount of $28,251.76 under Rule 11); Second Mot. for Sanctions at 7 (Dkt. No. 41) 17 (requesting $37,405.98 in sanctions under Section 1927 and the court’s inherent powers). Local 18 444 alleges that the sanctions requested represent the amount that it has sustained in defending this 19 action. 20 A. 21 Local 444 accuses Rivera of filing her complaint frivolously in violation of Rule 11 of the Rule 11 22 Federal Rules of Civil Procedure. Rule 11 provides for sanctions where a party has advanced an 23 argument in any signed paper before the court that is (1) presented for “any improper purpose,” or 24 (2) not warranted by existing law or “by a nonfrivolous argument” to change, modify, or reverse 25 existing law. Fed. R. Civ. P. 11. Where a complaint is the focus of Rule 11 proceedings, a district 26 court conducts a two-prong inquiry: “(1) whether the complaint is legally or factually baseless 27 from an objective perspective,” and “(2) if the attorney has conducted a reasonable and competent 28 inquiry before signing and filing it.” Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 9 1 2002) (internal quotation marks and citation omitted). Imposing sanctions under Rule 11 is “an 2 extraordinary remedy, one to be exercised with extreme caution.” Operating Eng’rs Pension 3 Trust v. A-C Company, 859 F.2d 1336, 1345 (9th Cir. 1988). Local 444 urges for Rule 11 sanctions because (1) the filing of the complaint was clearly 4 5 barred by claim-splitting; and (2) the claims contained in the complaint were plainly meritless 6 given their previous dismissal. Neither rationale provides adequate grounds for imposing 7 sanctions. Rivera’s complaint is not factually baseless,7 nor is it legally baseless because the grounds 9 for Local 444’s dismissal from the Prior Action were arguably ambiguous.8 Moreover, unlike res 10 judicata, the law surrounding the claim-splitting doctrine is itself unclear. Compare Single Chip 11 United States District Court Northern District of California 8 Sys. Corp., 495 F. Supp. 2d at 1058 (noting that the defendant’s argument that claim-splitting 12 requires a final judgment, then finding the argument “unpersuasive,” without imposing sanctions), 13 with Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir. 1997) (affirming district court’s award of 14 sanctions against an attorney who brought a suit that “involve[d] the same parties and the same 15 ‘transactional nucleus of fact’ as the prior suit and it [sought] to relitigate issues that were 16 conclusively resolved in the prior suit.”)(emphasis added). It is true that “[t]his court has already 17 dismissed with prejudice the same causes of action arising out of the same transactional nucleus of 18 facts brought by the same Plaintiff against the same Defendant.” Second Mot. for Sanctions at 1 19 (emphasis in original). But Rivera advances a legitimate, if unpersuasive, argument that renders 20 7 21 22 23 24 Refiling a complaint identical, or substantially similar, to one that has been dismissed is generally sanctionable. See Wages v. I.R.S., 915 F.2d 1230, 1235-36 (9th Cir. 1990) (upholding district court’s award of sanctions for filing an amended complaint that “did not materially differ from one which the district court had already concluded did not state a claim”). But Rivera’s complaints differed in important ways, most notably, she exhausted her administrative remedies prior to filing this suit. In addition, she included additional allegations substantiating her belief that her misclassification was the product of gender discrimination. See Compl. ¶ 9. 8 25 26 27 28 Local 444 insists that any competent lawyer would have known that Rivera’s argument--that her previous case was dismissed for failure to exhaust administrative remedies--was meritless. Second Mot. for Sanctions at 5. But as explained earlier, the basis for Local 444’s dismissal from the Prior Action was not entirely clear. See supra section I.A. Moreover, whether a “competent lawyer would have known” is not the appropriate inquiry. What matters is whether the filing of the complaint was non-frivolous from an objective perspective. See Christian v. Mattel, Inc., 286 F.3d 1118, 1128 (9th Cir. 2002) (inquiring as to whether the complaint is “legally or factually ‘baseless’ from an objective perspective”). 10 1 the filing of this action non-frivolous. Local 444’s motion for Rule 11 sanctions is DENIED. 2 B. 3 Local 444 also seeks sanctions under 28 U.S.C. section 1927, which provides that “[a]ny 4 attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be 5 required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees 6 reasonably incurred because of such conduct.” 28 U.S.C. § 1927. 7 Section 1927 Sanctions Local 444 asks me to impose sanctions on Rivera for filing her complaint in this action 8 because it is an “unreasonable multiplication of proceedings.” First Mot. for Sanctions at 11. This 9 misconstrues the term “multiplication” in Section 1927; it means “to multiply or prolong” proceedings of a single case. See In re Yagman, 803 F.2d 1085, 1187 (9th Cir. 1986) (“It is only 11 United States District Court Northern District of California 10 possible to multiply or prolong proceedings after the complaint is filed.”). Accordingly, Section 12 1927 sanctions cannot be imposed for the filing of an initial complaint. See, e.g., In re Keegan 13 Mgmt. Co., Sec. Litig., 78 F.3d 431, 435 (9th Cir. 1996) (“We have twice expressly held that 14 [Section] 1927 cannot be applied to an initial pleading.”). 15 Since Rivera’s complaint here could not have functioned to delay or unnecessarily 16 complicate the proceedings of this case, section 1927 sanctions are inapplicable. See id. 17 (“Because [Section 1927] authorizes sanctions only for the multiplication of proceedings, it 18 applies only to unnecessary filings and tactics once the lawsuit has begun.”)(internal quotation 19 marks and brackets omitted)). 20 C. 21 A court may impose sanctions under its inherent power based on a finding of “bad faith or 22 conduct tantamount to bad faith.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001). “Sanctions 23 are available for a variety of types of willful actions, including recklessness when combined with 24 an additional factor such as frivolousness, harassment, or an improper purpose.” Id. 25 Inherent Power of the Court Local 444 contends that sanctions under the inherent power of the court are warranted 26 because Rivera “recklessly elected to file the present action seeking to re-litigate previously- 27 dismissed claims and continues to prosecute the matter despite repeated urgings to withdraw it.” 28 Second Mot. for Sanctions at 6. I am not persuaded. As discussed above, the filing of Rivera’s 11 1 complaint here was not “reckless” or “frivolous” because she had some objectively reasonable 2 basis to believe that exhausting her administrative remedies would allow her claim to proceed 3 against Local 444. While Rivera’s complaint must be dismissed for improper claim-splitting, it 4 does not render her “reckless” in advancing misstatements of law and fact. She put forth a 5 legitimate argument that the filing of her suit was permissible, and she sufficiently changed her 6 complaint to assert colorable claims. Colorable claims are sanctionable under the inherent power 7 of the court only where the litigant is “substantially motivated by vindictiveness, obduracy, or 8 mala fides.” Fink, 239 F.3d at 992. Local 444 makes no allegation that this suit is so motivated. 9 Local 444’s motion for sanctions under the inherent power of the court is DENIED. 10 CONCLUSION United States District Court Northern District of California 11 12 13 14 For the reasons explained above, Local 444’s motion to dismiss with prejudice is GRANTED, and its motions for sanctions are DENIED. IT IS SO ORDERED. Dated: July 17, 2017 15 16 William H. Orrick United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 12

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