Payne v. Publishers Clearing House, Inc., et al, No. 1:2016cv00165 - Document 5 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Complaint be Dismissed with Prejudice and Without Leave to Amend; Matter referred to Judge Drozd. Objections to F&R due within twenty-eight (28) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 3/4/2016. (Timken, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KITTI RUTH PAYNE a/k/a KITTI R. POWER, Case No. 1:16-cv-010165-DAD-SKO FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S COMPLAINT BE DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND 12 Plaintiff, 13 v. 14 Objections Due: 28 Days 15 16 17 PUBLISHERS CLEARING HOUSE, INC.; MARGARET CROSSAN, DAVE SAYER, PCH AFFILIATES d/b/a PCH LOTTO a/k/a PUBLISHING CLEARING HOUSE; PCH; and THE CLEARING HOUSE, (Doc. No. 4) 18 19 Defendants. _____________________________________/ 20 21 22 I. BACKGROUND On September 25, 2015, Plaintiff Kitti Ruth Payne (“Plaintiff”), proceeding pro se and in 23 forma pauperis, filed an action against Publishers Clearing House, Inc., before this Court. See 24 Payne v. Publishers Clearing House, No. 1:15-cv-01453-AWI-SKO (“PCH I”). On December 17, 25 2015, the undersigned recommended PCH I be dismissed without leave to amend, for failure to 26 recite a plain and concise statement of allegations under Fed. R. Civ. P. Rule 8. (PCH I, Doc. 13.) 27 On January 22, 2016, the assigned district judge adopted the undersigned’s findings and 28 recommendation in full and dismissed PCH I with prejudice and without leave to amend. (PCH I, 1 Doc. 14.) Judgment was entered on January 22, 2016. (PCH I, Doc. 15.) 2 In a civil case, a party must file their notice of appeal to the Circuit Court with the district 3 clerk “within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4. The 4 deadlines are mandatory and jurisdictional. See Browder v. Dir., Dep’t of Corrections, 434 U.S. 5 257 (1978). Here, more than thirty days have passed since the entry of judgment in PCH I; 6 therefore, the judgment in PCH I is final. 7 On February 4, 2016, Plaintiff, proceeding pro se and in forma pauperis, filed the instant 8 action against Publishers Clearing House, Inc., before this Court. 9 Clearing House, No. 1:16-cv-00165-DAD-SKO (“PCH II”). See Payne v. Publishers In cases where the plaintiff is 10 proceeding in forma pauperis, the Court is required to screen each case, and must dismiss the case 11 at any time if the Court determines that the allegation of poverty is untrue, or the Court determines 12 that the action or appeal is frivolous or malicious, fails to state a claim upon which relief may be 13 granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. 14 § 1915(e)(2). Plaintiff’s Complaint in PCH II is currently before the Court for screening pursuant 15 to 28 U.S.C. § 1915(e)(2). For the reasons below, the undersigned finds and recommends that 16 Plaintiff’s claims are barred by the doctrine of res judicata. 17 18 II. PLAINTIFF’S CLAIMS The Amended Complaint in PCH I and the Complaint in the newly-filed PCH II are 19 virtually indistinguishable from one another. (Compare PCH I, Doc. 6, with PCH II, Doc. 1.) In 20 PCH I, Plaintiff alleged claims for negligence, “harm,” and fraud against Publishers Clearing 21 House based on the contents of an October 2011 email from an unnamed third party representing 22 itself as an affiliate of Publishers Clearing House. (PCH I, Doc. 6, pp. 8-9; Exh. 1 23 (unauthenticated copy of October 2011 email).) In PCH II, Plaintiff alleges claims of negligence, 24 “resulting harm,” “continuation of negligence,” and fraud against Publishers Clearing House based 25 on the contents of an October 2011 email from an unnamed third party representing itself as an 26 affiliate of Publishers Clearing House. (PCH II, Doc. 1, pp. 6-7; Att. 1 (unauthenticated copy of 27 October 2011 email).) The defendants named in PCH II are the same as those previously named 28 in PCH I. (Compare PCH I, Doc. 6, with PCH II, Doc. 1.) 2 1 PCH I was dismissed, with prejudice and without leave to amend, for failure to recite a 2 plain and concise statement of allegations under Fed. R. Civ. P. 8, and on January 22, 2016, 3 judgment was entered against Plaintiff. (PCH I, Doc. 13; 14; 15.) 4 III. 5 FINDINGS The doctrine of res judicata bars the re-litigation of claims previously decided on their 6 merits. Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). “The 7 elements necessary to establish res judicata are: ‘(1) an identity of claims, (2) a final judgment on 8 the merits, and (3) privity between parties.’” Headwaters, Inc., 399 F.3d at 1052 (quoting Tahoe9 Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.2d 1064, 1077 (9th Cir. 2003)). 10 Plaintiff’s statement of factual allegations and federal claims in this action are virtually 11 identical to the statement of factual allegations and federal claims in PCH I, and there is no 12 question that Plaintiff is attempting to re-litigate the same claims against the same parties. 13 (Compare PCH I with PCH II.) The claims Plaintiff raises in this action were previously 14 dismissed, with prejudice, for failure to comply with Fed. R. Civ. P. 8. “A complaint which fails 15 to comply with rules 8(a) and 8(e) may be dismissed with prejudice pursuant to rule 41(b)[,]” 16 Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981) (collecting cases), and a 17 dismissal with prejudice pursuant to Rule 41(b) is a “final judgment upon the merits.”1 18 Because Plaintiff’s federal claims are absolutely barred pursuant to the doctrine of res 19 judicata, Plaintiff’s complaint must be dismissed, with prejudice and without leave to amend. 20 Headwaters, Inc., 399 F.3d at 1052. 21 IV. CONCLUSION AND RECOMMENDATION Plaintiff’s claims are barred by the doctrine of res judicata and Defendants are entitled to 22 23 dismissal of the claims, with prejudice. Accordingly, IT IS HEREBY RECOMMENDED that 24 Plaintiff’s complaint be DISMISSED with prejudice and without leave to amend. 25 26 27 28 1 Rule 41(b) provides in pertinent part: “For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him . . . . Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision . . . operates as an adjudication upon the merits.” 3 1 These findings and recommendations are submitted to the district judge assigned to this 2 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty3 eight (28) days of service of this recommendation, any party may file written objections to these 4 findings and recommendations with the Court and serve a copy on all parties. The document 5 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 6 district judge will review the magistrate judge’s findings and recommendations pursuant to 7 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the 8 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 9 839 (9th Cir. 2014). 10 11 IT IS SO ORDERED. 12 Dated: March 4, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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