Rogers v. Robert Half International, Inc. et al

Filing 31

ORDER DISMISSING CASE. Signed by Judge Phyllis J. Hamilton on 7/18/2019. (pjhlc1S, COURT STAFF) (Filed on 7/18/2019) ***The deputy clerk hereby certifies that on 7/18/2019 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing specifically sent to Brian F. Rogers.*** Modified on 7/18/2019 (kcS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN F. ROGERS,

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Case No. 17-cv-03777-PJH

Plaintiff,

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v.

ORDER DISMISSING ACTION

ROBERT HALF INTERNATIONAL,
INC.,

Re: Dkt. No. 30

United States District Court
Northern District of California

Defendant.
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On July 2, 2019, defendant Robert Half International, Inc. (“RHI”) filed a Notice of

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Finality of Appeal and Request for Dismissal of this Action. Dkt. 30. The notice states

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that plaintiff’s state court appeal is final, and it requests that this court dismiss this action.

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The Notice and Request is supported by a declaration from William S. Lisa. Plaintiff has

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not filed a response.

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On May 6, 2016, plaintiff Brian Rogers initiated an action against RHI in the

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Superior Court of California, County of San Francisco, alleging unlawful employment

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discrimination. The Superior Court granted RHI’s motion for summary judgment in that

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case on April 21, 2017, and plaintiff appealed to the California Court of Appeal, First

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District, Appeal No. A151655.

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On June 30, 2017 plaintiff brought this action based on identical factual allegations

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as his state court complaint, and RHI moved to dismiss or stay this action pending

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resolution of the state court appeal. Dkt. 14. The complaint in this action repeated

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“almost verbatim the factual allegations in the state court [complaint].” Order Denying

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Motion to Dismiss, and Granting Motion to Stay, Dkt. 29 at 3.

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On October 27, 2017 this court issued an order denying the motion to dismiss and

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granting the motion to stay, reasoning that “[w]ere it not for the fact that there is no

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judgment in the state court case, the court would grant the motion to dismiss based on

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collateral estoppel, as RHI has established all the elements with the exception of a ‘final

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judgment on the merits.’” Id. at 9. The court further stated that “were it not for the fact of

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the pending appeal, which may or may not be dismissed because of the lack of a

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judgment, the court would also find that the present case is barred by res judicata.” Id.

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The court required defendant to “notify the court as soon as the state-court appeal is

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final, assuming the Court of Appeal finds that the order granting summary was

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United States District Court
Northern District of California

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appealable despite the lack of a separate judgment.” Id. at 13.
On May 29, 2019 the California Court of Appeal, First District affirmed the Superior

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Court’s April 21, 2017 decision granting RHI summary judgment and denying plaintiff the

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opportunity to amend his complaint. The Court of Appeal order provides that “The

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judgment is affirmed.” Dkt. 30-1 at 8.

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Pursuant to California Rule of Court 8.500(e)(1), for an appellant’s case to be

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heard by the Supreme Court of California, he or she must file and serve a petition for

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review with the California Supreme Court within ten days after the Court of Appeal

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Decision is final in that court. The California Court of Appeal, First District’s decision was

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final as of May 29, 2019, and RHI’s attorney attests that it has not been served with a

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petition for review.

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Pursuant to California Rule of Court 8.500(e)(2) and 8.512(c)(1), the California

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Supreme Court may order review on its own motion and relieve an appellant of his or her

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failure to file the proper petition within 30 days after the decision is final. The 30-day time

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period for the California Supreme Court to have ordered review of the California Court of

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Appeal’s decision affirming summary judgment has lapsed, and RHI’s counsel attests

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that there has been no such order.

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This court’s October 27, 2017 order stated that if the Court of Appeal took up the
appeal and affirmed judgment, this action would be dismissed with prejudice. Those
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events have come to pass. Given the Court of Appeal’s decision and the expiration of

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time to appeal that opinion, this case is hereby DISMISSED WITH PREJUDICE.

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IT IS SO ORDERED.
Dated: July 18, 2019

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PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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