Unpublished Disposition, 921 F.2d 280 (9th Cir. 1985)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 280 (9th Cir. 1985)

Autry L. HATTON, Plaintiff-Appellant,v.BANKERS LIFE & CASUALTY COMPANY; Ford Motor Company,Defendants-Appellees.

No. 89-56104.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 13, 1990.* Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and WALLACE and NELSON, Circuit Judges.


MEMORANDUM

Hatton appeals pro se from a district court order dismissing his complaint for failure to state a claim. The district court found that this action was barred by both the previous dismissal of an identical complaint with prejudice, and by a General Release that Hatton had signed in conjunction with the dismissal of the prior action. In addition, the district court awarded attorneys' fees. The district court had jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

We review de novo the district court's decision to dismiss the action with prejudice. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989) (Kruso), cert. denied, 110 S. Ct. 3217 (1990). Thus, confining ourselves to the contents of the complaint, we must affirm the dismissal if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see Kruso, 872 F.2d at 1421.

The same district court dismissed a very similar action with prejudice on March 12, 1985, in conjunction with a settlement in which Hatton received $50,000 from the defendants. Hatton does not dispute that he received the money. With the exception of the first 12 paragraphs, Hatton's complaint in this case is identical to the complaint previously dismissed with prejudice. These first 12 paragraphs allege in part that the defendants drugged Hatton to obtain his signature on the General Release and attempted to have him placed in a mental hospital. We agree with the district court that these new paragraphs state no new cause of action. Moreover, Hatton's complaint cannot be construed as a claim for rescission of the General Release, because he has not offered to tender to the defendants the $50,000 he received previously. Thus, as a result of the prior dismissal, the district court correctly dismissed Hatton's present action with prejudice. See Green v. Ancora-Citronelle Corp., 577 F.2d 1380, 1383 (9th Cir. 1978).

Finally, the district court awarded attorneys' fees to the defendants in accordance with provisions in the General Release signed in 1985. In the General Release, Hatton agreed to release the defendants from all claims connected with the subject matter of the prior lawsuit, and promised not to pursue them in any future action. Moreover, Hatton promised to indemnify the defendants for costs and fees incurred in defending any action that he might bring contrary to the General Release. Because Hatton brought a complaint that was practically identical to the one he previously agreed to dismiss with prejudice, the district court was correct in awarding the defendants fees and costs for the district court proceedings. See Schackman v. Universal Pictures Co., 255 Cal. App. 2d 857, 859, 63 Cal. Rptr. 607, 609 (Cal.Ct.App.1967) (language of indemnity agreement and surrounding circumstances govern determination of parties' intention). For the same reasons, we award fees and costs to the defendants for sums incurred on this appeal, upon receipt by this court of proof of payment of these sums. See Cal.Civ.Code Sec. 2778(2) (West 1974).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4