(PS) RuBang v. Gallagher Bassett Services, Inc. et al, No. 2:2018cv02350 - Document 5 (E.D. Cal. 2018)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/1/18 RECOMMENDING that the Action 3 1 be dismissed on the doctrine of claim preclusion; Motions to proceed in forma pauperis 4 2 be denied as moot; The Clerk of the Court be directed to close this case. IT IS ALSO ORDERED that all pleading, discovery, and motion practice in this action are STAYED pending resolution of the findings and recommendations. These Findings and Recommendations are submitted to U.S. District Judge John A. Mendez; Objections to these F&R due within fourteen days. (Mena-Sanchez, L)
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(PS) RuBang v. Gallagher Bassett Services, Inc. et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GONZALO R. RUBANG, JR. No. 2:18-cv-2350-JAM-KJN PS 12 Plaintiff 13 ORDER AND v. 14 15 FINDINGS AND RECOMMENDATIONS GALLAGHER BASSETT SERVICES, INC., et al., 16 17 Defendants. 18 Plaintiff Gonzalo Rubang, proceeding without counsel, commenced this action on August 19 20 29, 2018, and requested leave to proceed in forma pauperis. (ECF Nos. 1, 2, 4.) On September 21 4, 2018, plaintiff also filed a first amended complaint. (ECF No. 3.) After carefully reviewing 22 plaintiff’s filings, the court recommends that the action be dismissed based on the doctrine of 23 claim preclusion and plaintiff’s motions to proceed in forma pauperis in this court be denied as 24 moot. 25 Liberally construed, plaintiff’s complaint alleges claims of negligence and discrimination 26 against defendant Gallagher Bassett Services, Inc., which appears to be either a worker’s 27 compensation insurance company or a claims management company, and defendant Kathleen 28 Gruber, the adjuster assigned to plaintiff’s claim, for failure to authorize certain medical 1 Dockets.Justia.com 1 treatments. However, regardless of any potential merit to plaintiff’s claims, the documents 2 attached to plaintiff’s complaint show that plaintiff had already filed such claims against the same 3 named defendants in the Solano County Superior Court, and that the state court action was 4 dismissed with prejudice on August 10, 2018. (See ECF No. 3 at 12 [“Judgment of Dismissal 5 After Sustaining of Demurrer to Complaint Without Leave to Amend”].) As such, plaintiff’s 6 complaint here is plainly barred by the doctrine of claim preclusion. Owens v. Kaiser Foundation 7 Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). If plaintiff believes that the state court 8 erroneously dismissed his claims, the proper course of action is to appeal that decision to the state 9 appellate courts, not to file a new action in federal court. 10 Accordingly, IT IS HEREBY RECOMMENDED that: 11 1. The action be dismissed based on the doctrine of claim preclusion. 12 2. Plaintiff’s motions to proceed in forma pauperis in this court (ECF Nos. 2, 4) be 13 denied as moot. 14 3. The Clerk of Court be directed to close this case. 15 In light of those recommendations, IT IS ALSO ORDERED that all pleading, discovery, 16 and motion practice in this action are STAYED pending resolution of the findings and 17 recommendations. With the exception of objections to the findings and recommendations, and 18 non-frivolous motions for emergency relief, the court will not entertain or respond to any motions 19 or filings until the findings and recommendations are resolved. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 22 days after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 25 shall be served on all parties and filed with the court within fourteen (14) days after service of the 26 objections. The parties are advised that failure to file objections within the specified time may 27 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 28 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 2 1 2 IT IS SO ORDERED AND RECOMMENDED. Dated: October 1, 2018 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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