The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER DISMISSING PLAINTIFFS' FEDERAL CLAIMS WITH PREJUDICE AND PLAINTIFFS' STATE LAW CLAIMS WITHOUT PREJUDICE
Pending is the Attorney General's Office's "Matter in Abatement and Motion to Dismiss" ("Motion to Dismiss") which was filed on December 7, 2010, and was scheduled for hearing on January 28, 2011. (ECF No. 9.) Since Plaintiffs were proceeding in propria persona when the Motion to Dismiss was filed, the case was referred to the magistrate judge under Local Rule 302(c)(21). Also pending is the "Special Motion to Strike Strategic Lawsuit Against Public Participation (Anit-SLAPP Motion) and Motion to Dismiss" which was filed on January 14, 2011 by the following parties: California Department of Corrections and Rehabilitation ("CDCR"), the Attorney General's Office, Julie Harlan, David J. Neil, and Jill H. Talley's ("Defendants"). The motion filed on January 14, 2011 was scheduled for hearing before the magistrate judge on February 18, 2011. (ECF NO. 13.) The magistrate judge ordered Plaintiffs to file opposition briefs to both motions by February 4, 2011. (ECF No. 14.) Plaintiffs complied with this order and thereafter retained counsel. (ECF Nos. 18-20.) Since Plaintiffs retained counsel, the motions were rescheduled to be heard before the undersigned district judge on May 2, 2011. (ECF Nos. 22-23.)
The Attorney General's Office argues in its Motion to Dismiss that this case should be dismissed since it "is duplicative of and sets forth the same causes of action and seeks the same relief as" an action previously filed by Plaintiff Edna Miller, case number 2:10-cv-01699-GEB-DAD ("previous action"). (Notice of Hearing on Mot. to Dismiss 2:7-9.) After the pending Motion to Dismiss was filed in this action, the Court issued an order in the previous action which dismissed Miller's federal claims with prejudice and Miller's supplemental state claims without prejudice; judgment was subsequently entered on March 31, 2011. (Previous Action, ECF No. 63, 64.) Defendants argue in their reply brief that in light of the dismissal order in the previous action, their Motion to Dismiss which is based on the theory of "abatement . . . is more properly a motion to dismiss based on the principles of res judicata." (Reply in Supp. of Mot. to Dismiss 5:8-9.)
Plaintiffs allege in their First Amended Complaint ("FAC") the following seven claims: 1) "First And Fourteenth Amendment Retaliation In violation of 42 U.S.C. § 1983" ("§ 1983"); 2) "Discrimination Violation of Public Policy FEHA"; 3) "Defamation/Libel"; 4) "Intentional Interference with Economic Relationship"; 5) "Fourteenth Amendment Denial of Equal Protection In Violation of" § 1983; 6) "Civil Liberties"; and 7) "Intentional Infliction of Emotional Distress". (Current FAC ¶¶ 46-123.) However, two of these claims are comprised of more than one claim; Plaintiffs' second claim alleges violations of the Fair Employment and Housing Act ("FEHA") and the Family Medical Leave Act ("FMLA") and Plaintiffs' fourth claim alleges violations the GrammLeach-Bliley ("GLB") Act, codified at 15 U.S.C. § 6801, and allegations of intentional interference with a business relationship. Id. ¶¶ 63-81, 93-111. Further, only Plaintiffs' fourth claim alleges facts related to Plaintiff David McGuire. Id. ¶¶ 97, 108, 111.
"Res judicata encompasses the doctrines of claim preclusion and issue preclusion." Paulo v. Holder, --- F.3d ----, 2011 WL 1663572, at *5 (9th Cir. 2011). "[C]laim preclusion, prohibits lawsuits on any claims that were raised or could have been raised in a prior action . . . [and] applies when there is: (1) an identity of claims; (2) a final judgment on the merits; and (3) identity or privity between parties." Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (citations and internal quotation marks omitted).
In determining whether successive claims constitute the same cause of action, we consider (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.
Int'l Union of Operating Engineers-Employers Const. Indus. Pension, Welfare and Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir. 1993) (internal quotation marks omitted). "Whether two events are part of the same transaction or series depends on whether they are related to the same set of facts and whether they could conveniently be tried together." Id. (internal quotation marks omitted).
The facts alleged in the instant action are nearly a verbatim recitation of the facts alleged in the previous action. (Case No. 2:10-cv-2850-GEB-DAD, ECF No. 5 ("Current FAC") ¶¶ 26-44; Case No. 2:10-cv-1699-GEB-DAD, ECF No. 5 ("Previous FAC") ¶¶ 17-33.) Therefore, both actions "arise out of the same transactional nucleus of facts" and constitute identity of claims sufficient to satisfy this element of the claim preclusion doctrine. Karr, 994 F.2d at 1429.
2. IDENTITY OR PRIVITY BETWEEN PARTIES
"'Privity' . . . is a legal conclusion designating a person so identified in interest with a party to former litigation that he represents precisely the same right in respect to the subject matter involved." Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052--53 (9th Cir. 2005) (citation and quotation marks omitted). "Privity, traditionally, ar[ises] from a limited number of legal relationships in which two parties have identical or transferred rights with respect to a particular legal interest." Id. at 1053.
The current action includes a new plaintiff, David McGuire, and adds three new defendants, Edmund G. "Jerry" Brown, Lewis Kuykendall, and Kathy Bidd. Defendant Brown is in privity with the Attorney General's Office, as he is alleged to be the Attorney General for the State of California. Adams v. Cal. Dep't of Health Servs., 487 F.3d 684, 691--92 (9th Cir. 2007) (agents and employees are in sufficient privity to invoke claim preclusion). Similarly, Defendants Lewis Kuykendall and Kathy Bidd are in ...