The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Previously pending on this court's law and motion calendar for May 14, 2009, was defendant's amended motion to dismiss filed April 21, 2009. Also pending is this court's order to show cause to defendant, issued April 10, 2009. Defendant filed a response and was represented at hearing by Margaret Rosenthal who appeared telephonically. Plaintiff did not file an opposition and did not appear at the hearing. For the reasons stated herein, the order to show cause is dismissed, and it is recommended that defendant's motion to dismiss be granted in part and this action be dismissed based on collateral estoppel.
Defendant removed this action from the San Joaquin County Superior Court on March 27, 2009, premised on this court's subject matter jurisdiction over plaintiff's federal claims as contained in her amended complaint. 28 U.S.C. § 1441(a). The amended complaint contains two causes of action. (Notice of Removal, dkt. #1 at 53-60.) The first claim (entitled "second cause of action") is for sexual harassment pursuant to Title VII of the Civil Rights Act of 1964. Plaintiff alleges that a temporary employee of defendant's company made unwelcome gestures and sexual advances in a verbal and physical manner toward her while she was trying to conduct business as a customer. She alleges that when she complained of the conduct, Security treated her in a hostile manner. (dkt. #1 at 54.)
The second claim (entitled "third cause of action") is for illegal search and seizure and false imprisonment under the Fourth Amendment. Plaintiff provides no information other than that she had "a legitimate expectation of privacy at the searched location ... and in all dealings with ADESA." She claims that probable cause and a warrant were required. (Id. at 58.)
In plaintiff's previous action, also removed to this court, plaintiff had made similar allegations. Archambault v. ADESA Golden Gate, Civ.S. 08-1616 LKK GGH PS.*fn2 That complaint had alleged that plaintiff drove a rental car to defendant's Tracy business location for the purpose of obtaining or "redeeming" her own vehicle which had been previously repossessed. After being directed to the "back of the building" to pick up her vehicle, and while walking past the security desk, a "temporary employee" whistled in "cat call" fashion to plaintiff and her friend, both of whom were offended and reported the action to security.
The complaint had also alleged that when it was time to pick up her own car, plaintiff sought first to drive and park her rental car off the premises so that she could comply with defendant's requirement that she drive her own car from the premises. At this juncture, some of defendant's employees "impeded" plaintiff's driving and "held" plaintiff and her friend "behind the lines and under duress." The employees insisted that they check the trunk of plaintiff's rental car before it vacated the premises. Based on these allegations and others, plaintiff had alleged sexual harassment in violation of Title VII, illegal search and seizure, and false imprisonment in violation of the Fourth and Fourteenth Amendments, as well as supplemental state law claims.
The complaint attached to the removal notice was an exact duplicate of a complaint filed by plaintiff in this court in the earlier action, Archambault v. ADESA Golden Gate, Civ.S. 08-1616 LKK GGH PS, which had been dismissed for lack of subject matter jurisdiction, and remanded to state court for consideration of the state law claims. After the court issued its order to show cause based on its perception that both cases contained an identical complaint, defendant responded by explaining that on remand, defendant demurred on the remaining claims. The state court granted the demurrer with leave to amend. Plaintiff did amend, but stated only two claims, both of which were federal claims as asserted in her original complaint. Plaintiff did so in blatant disregard of the state court's order to submit an amended complaint containing only state law claims.*fn3 (dkt. #1 at 52.) Defendant then removed the action based on this amended complaint.
Based on this sequence of events, defendant has adequately explained the reason for removing plaintiff's action once again to federal court. Therefore, the order to show cause will be discharged.
The instant amended complaint should be dismissed based on collateral estoppel, as plaintiff has raised the same claims which were already decided in the previous action. Under the doctrine of res judicata, "'[a] final judgment on the merits bars a subsequent action between the same parties or their privies over the same cause of action.'" The Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992), quoting Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir. 1985). The doctrine of res judicata consists of two concepts, issue preclusion, or collateral estoppel, and claim preclusion, or res judicata. Migra v. Warren City School District Board of Education, 465 U.S. 75, 77 n.1 (1984). "Issue preclusion [collateral estoppel] refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided." Id. "Claim preclusion [res judicata] refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit." Id. "Claim preclusion [res judicata] bars the assertion of any theory of recovery that could have been asserted in the first action." Fund for Animals, at 1398, citing Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988).
The first claim in plaintiff's amended complaint ("entitled second cause of action") is almost identical to the second cause of action in the complaint filed in the previous action. Both claims allege sexual harassment under Title VII based on the same incident. The second claim in the amended complaint ("entitled third cause of action") makes the same allegations as the third cause of action in the previous complaint, that defendant violated the Fourth Amendment by its illegal search and seizure and false imprisonment. This cause of action, although much abbreviated and containing no facts, is based on the same event as the previous action.
The claims currently before the court were already litigated and decided in defendant's favor in the previous action. Although the previous action resulted in a dismissal of the federal claims based on lack of federal subject matter jurisdiction and therefore was not a judgment on the merits, the issue of subject matter jurisdiction was necessarily determined and was the same issue as that decided here. Plaintiff has not opposed defendant's motion, did not appear at the hearing, and therefore cannot show ...