Aguilar v. Applied Underwriters, Inc, No. 1:2018cv00528 - Document 6 (E.D. Cal. 2018)

Court Description: DECISION and ORDER Granting Defendant's Unopposed 4 Motion to Dismiss signed by Chief Judge Lawrence J. O'Neill on 6/20/18. CASE CLOSED. (Marrujo, C)
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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 GUSTAVO SANCHEZ AGUILAR, 7 1:18-cv-00528-LJO-BAM Plaintiff, 8 v. 9 DECISION AND ORDER GRANTING DEFENDANT’S UNOPPOSED MOTION TO DISMISS (ECF No. 4) APPLIED UNDERWRITERS, INC., 10 Defendant. 11 12 13 Plaintiff Gustavo Sanchez Aguilar filed this case in Fresno County Superior Court on March 19, 14 2018. ECF No. 1-1 at 7. On April 18, 2018, Defendant Applied Underwriters, Inc., removed the case to 15 this Court under 28 U.S.C. § 1441, asserting diversity jurisdiction under 28 U.S.C. § 1332. ECF No. 1 at 16 2. Defendant filed a motion to dismiss the complaint on April 25, 2018. ECF No. 4. Plaintiff did not file 17 any opposition or notice of non-opposition, and Defendant did not file a reply. Pursuant to Local Rule 18 230(g), the Court took this matter under submission on the papers on June 1, 2018. ECF No. 5. 19 Defendant asserts that this case involves the same parties and facts alleged in Plaintiff’s 20 complaint in Gustavo Aguilar v. Applied Underwriters, Inc. (“Aguilar I”), Case No. 1:17-cv-0169221 LJO-SAB, which the Court dismissed without leave to amend on March 2, 2018. ECF No. 4 at 5-6. 22 Accordingly, Defendant argues, the instant case is barred by res judicata. Id. In the alternative, 23 Defendant argues that the complaint fails to state a claim. Id. at 7-10. Defendant also requests that 24 Plaintiff be sanctioned through a declaration that Plaintiff is a vexatious litigant, a requirement that 25 Plaintiff obtain a pre-filing order, and monetary sanctions in the amount of the attorney’s fees and costs 1 1 Defendant has incurred in connection with this action. Id. at 10-11. 2 The doctrine of res judicata protects “litigants from the burden of relitigating an identical issue” 3 and promotes “judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 4 U.S. 322, 326 (1979). It “bars litigation in a subsequent action of any claims that were raised or could 5 have been raised in the prior action.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th 6 Cir. 2001). Stated differently, “[c]laim preclusion, often referred to as res judicata, bars any subsequent 7 suit on claims that were raised or could have been raised in a prior action.” Cell Therapeutics, Inc. v. 8 Lash Group, Inc., 586 F.3d 1204, 1212 (9th Cir. 2009); accord Tahoe Sierra Preservation Council, Inc. 9 v. Tahoe Reg. Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003) (“Newly articulated claims based 10 on the same nucleus of facts may still be subject to a res judicata finding if the claims could have been 11 brought in the earlier action.”). The court applies the doctrine whenever there is: (1) a final judgment on 12 the merits; (2) identity or privity between parties; and (3) an identity of claims. Tahoe–Sierra 13 Preservation Council, Inc., 322 F.3d at 1077. Whether there is identity of claims is subject to a further 14 test “transaction” test involving four criteria: 15 16 17 (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. 18 Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982). The last criteria, “whether 19 the two suits arise out of the same transactional nucleus of facts,” is the most important. Id. at 1202. 20 Defendant argues that the dismissal without leave to amend of Aguilar I constitutes a final 21 judgment on the merits involving the same parties as in this case. ECF No. 4 at 6. Defendant concedes 22 that it is difficult to determine what claim Plaintiff is alleging in this action, as it was in the prior action, 23 but argues that both involved an alleged breach of an insurance coverage contract. Id. Plaintiff has filed 24 no opposition to Defendant’s motion. See, e.g., Silva v. U.S. Bancorp, No. 5:10-cv-01854-JHN-PJWx, 25 2011 WL 7096576, *3 (C.D. Cal. Oct. 6, 2011) (plaintiff's failure to oppose defendants' motion to 2 1 dismiss amounted to a concession that his claim should be dismissed); Tatum v. Schwartz, No. Civ. S- 2 06-01440 DFL EFB, 2007 WL 419463, *3 (E.D. Cal. Feb. 5, 2007) (explaining that a party “tacitly 3 concede[d][a] claim by failing to address defendants' argument in her opposition.”). 4 The Court finds that the elements of res judicata have been met. First, the Court dismissed 5 Plaintiff’s complaint in Aguilar I without leave to amend, constituting a final judgment.1 Fed. R. Civ. P. 6 41(b); Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005). Second, there is 7 identity of parties, as Plaintiff and Defendant are the parties named in both cases. Third, to the extent that the Court can discern the nature of Plaintiff’s claims, 2 there appears to 8 9 be an identity of claims between the two suits. Plaintiff includes many of the same exhibits as 10 attachments to both complaints. For example, both complaints contain the same claim for disability 11 insurance forms, the same compromise agreement and notice of hearing before the State of California 12 Worker’s Compensation Appeals Board, and the same letter from Defendant. See ECF No. 1-1 at 14-46; 13 Aguilar I, Case No. 1:17-cv-01692-LJO-SAB, ECF No. 1-1 at 18-69. To the extent that Plaintiff is 14 alleging that Defendant failed to extend or pay insurance coverage, the same right is being infringed. 15 Finally, the claims both cases appear to involve the same transactional nucleus of fact, as they both seem 16 to be based on a work-related injury sustained by Plaintiff on July 17, 2006. ECF No. 1-1 at 27; Aguilar 17 I, Case No. 1:17-cv-01692-LJO-SAB, ECF No. 1-1 at 20, 33. All three elements required for res judicata to apply have been met. Accordingly, the Court finds 18 19 that Plaintiff’s claim in this case is barred, and Defendant’s motion to dismiss is GRANTED. Plaintiff’s 20 complaint is dismissed without leave to amend. Defendant requests that Plaintiff be declared a vexatious litigant and be placed under a pre-filing 21 22 1 The Court takes notice of its decision in Aguilar I. Amphibious Partners, LLC v. Redman, 534 F.3d 1357, 1361–1362 (10th 23 Cir. 2008) (district court was entitled to take judicial notice of its memorandum of order and judgment from previous case 24 25 involving same parties). 2 The sole explanation of the claims in this action is the following statement, which is reproduced as written: “Gustavo Sanchez Aguilar of sued to the insurance Applied Underwriters looking whike being Incapasitado. I continue sacking. Continu Suspending my benefits while being disable wiih my Case OPEN January eight two thousand NINE. Continued incapasitado.” ECF No. 1-1 at 15. 3 1 order. ECF No. 4 at 10-11. “District courts have the inherent power to file restrictive pre-filing orders 2 against vexatious litigants with abusive and lengthy histories of litigation.” Weissman v. Quail Lodge, 3 Inc., 179 F.3d 1194, 1197 (9th Cir. 1999) (citing De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 4 1990)). The Eastern District of California has adopted the California Code of Civil Procedure as it 5 relates to vexatious litigants, without limiting the power of the Court. Local Rule 151(b). Under the 6 California Code of Civil Procedure, “a defendant may move the court, upon notice and hearing, for an 7 order requiring the plaintiff to furnish security” subject to a showing “that the plaintiff is a vexatious 8 litigant and that there is not a reasonable probability that he or she will prevail in the litigation against 9 the moving defendant.” Cal. Code Civ. Proc. §391.1. 10 While California law provides the procedure for declaring a litigant vexatious, the federal 11 substantive law governs the determination, as the power is derived from the All Writs Act, 28 U.S.C. § 12 1651(a). Molski v. Evergreen Dynasty Corp, 500 F.3d 1047, 1057 (9th Cir. 2007). Pre-filing orders are 13 considered an extreme remedy, and should be used cautiously to avoid prejudice to a litigant’s due 14 process right of access to the courts. Id. Four requirements must be met before declaring a litigant 15 vexatious and entering a pre-filing order: (1) provide the litigant notice and a chance to be heard, (2) 16 create an adequate record for review, (3) make substantive findings as to the frivolous or harassing 17 nature of the litigant's actions, and (4) ensure any pre-filing order is “narrowly tailored to closely fit the 18 specific vice encountered.” De Long, 912 F.2d at 1147-48. 19 The Court is not aware of any attempts by Plaintiff, apart from the instant case, to attempt to 20 relitigate any matter. The Court observes that this matter was filed in Fresno Superior Court and 21 removed to federal court by Defendant. While pro se litigants are responsible for knowing and following 22 procedural rules, the Court is sensitive to the difficulty a non-lawyer may have in understanding the 23 removal process and diversity jurisdiction. That said, HE IS NOW. Given the high bar that must be met 24 to declare a litigant vexatious, and the nature of the conduct here, the Court declines to find that 25 Plaintiff’s actions were frivolous or harassing. Accordingly, Defendant’s motion to have Plaintiff 4 1 declared a vexatious litigant is DENIED. For the same reasons, as well as Plaintiff’s apparently indigent 2 status, ECF No. 1-1 at 10-13, the Court declines to impose monetary sanctions or an award of attorney’s 3 fees on Plaintiff. Costs ARE awarded automatically to the prevailing party in litigation before this Court, 4 and will not be waived due to Plaintiff’s indigency. Plaintiff is warned, however, that further attempts to litigate this claim will not be looked upon 5 6 kindly, and will be dealt with expediciously. Any further filing or attempted filing of this complaint, or a 7 complaint alleging the same claim, will be grounds for sanctions under Federal Rule of Civil Procedure 8 11. 9 This matter is DISMISSED with prejudice. 10 11 IT IS SO ORDERED. 12 Dated: /s/ Lawrence J. O’Neill _____ June 20, 2018 UNITED STATES CHIEF DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 5