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Jacques v. Bank of America Corp.

United States District Court, Eastern District of California

January 15, 2015

TROY JACQUES, Plaintiff,
v.
BANK OF AMERICA CORPORATION, , Defendants.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS ECF NO. 107, 119

LAWRENCE J. O'NEILL, UNITED STATES DISTRICT JUDGE

On December 18, 2014, the magistrate judge assigned to this action issued a Findings and Recommendations recommending that Defendant Early Warning Services, LLC's ("Early Warning") motion to dismiss be granted. (ECF No. 119.) The Findings and Recommendations contained notice that any objections were to be filed within fourteen (14) days. On December 31, 2014, Plaintiff Troy Jacques ("Plaintiff) filed objections to the Findings and Recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case.

The Findings and Recommendations identified three grounds to dismiss Plaintiffs claims against Early Warning. First, the Court found that Plaintiffs claims against Early Warning were barred by Federal Rule of Civil Procedure 41(a)(1)(B). Second, the Court found that Plaintiffs claims against Early Warning were barred by the statute of limitations. Third, the Court found that Plaintiffs blacklisting claim (Cal. Labor Code § 1050, et seq.), defamation claim, negligent infliction of emotional distress claim, tortious interference with contract claim, and Fair Credit Reporting Act claim failed to state a claim. Finally, the Court found that Plaintiff was not entitled to leave to amend.

For the reasons set forth below, the magistrate judge's Findings and Recommendations are supported by the record and by proper analysis.

A. Federal Rule of Civil Procedure 41(a)(1)(B)

As set forth in more detail in the Findings and Recommendations, Federal Rule of Civil Procedure 41(a)(1)(B) states that, if a plaintiff voluntarily dismisses the same claim against a defendant twice, the second voluntary dismissal operates as an adjudication upon the merits. See Commercial Space Management Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1080 (9th Cir. 1999). The magistrate judge noted that Plaintiff previously dismissed his claims against Early Warning twice, first on October 26, 2012 and then again on November 28, 2012. (See ECF Nos. 32, 33, 40.)

Plaintiff argues that there was only one voluntary dismissal because the second voluntary dismissal was not actually a dismissal, it was simply "a voluntary dismissal of the same claim made to make clear that Early Warning was not intended to be a party although named in the continuing caption." Plaintiffs attempt to rewrite history is unpersuasive. The Second Amended Complaint clearly reasserted claims against Early Warning and named Early Warning as a defendant. Plaintiffs November 28, 2012 filing was clearly labeled a "Notice of Voluntary Dismissal Early Warning Services, LLC and First Advantage Background Services Corp. Only." (ECF No. 40.) Nowhere in that filing did Plaintiff indicate that the inclusion of Early Warning in the Second Amended Complaint was unintended.

Plaintiff also contends that, although Early Warning was named as a defendant in the Second Amended Complaint filed on November 21, 2012, that claim was invalid because the Second Amended Complaint had no "legal effect" because Plaintiff did not obtain leave of court or consent of the other parties to file the Second Amended Complaint. Plaintiffs argument is factually incorrect, as the Court granted Plaintiff leave to file a Second Amended Complaint on November 7, 2012. (See ECF No. 38.)

Alternatively, Plaintiff argues that the claims brought against Early Warning in the Fifth Amended Complaint are new claims unrelated to the claims that were voluntarily dismissed. Plaintiffs argument is unpersuasive. Rule 41(a)(1)(B) operates as an adjudication upon the merits of the defamation claim raised in the Second Amended Complaint. The defamation claim and related claims in the Fifth Amended Complaint are "based on" the same facts alleged in the Second Amended Complaint. Accordingly, those claims are barred.

B. Statute of Limitations

The magistrate judge found that Plaintiffs claims against Early Warning would be barred by the statute of limitations because the conduct at issue took place in April 2011, the Fifth Amended Complaint was filed on September 3, 2014, and the relevant statute of limitations for Plaintiffs claims are either one or two years long.

Plaintiff argues that the magistrate judge erred because the relation back doctrine applies to save Plaintiffs claims against Early Warning. Plaintiff argues that Early Warning was named as a Doe defendant in the original complaint and, under California law, the complaint may be amended to substitute the Doe defendant's true name if Plaintiff was ignorant of the facts giving rise to a cause of action against that defendant. See Parker v. Robert E. McKee, Inc., 3 Cal.App.4th 512, 516(1992).

However, the magistrate judge properly concluded that relation back did not apply because Plaintiff was not ignorant of the facts giving rise to a cause of action against Early Warning because Plaintiff actually raised a cause of action against Early Warning in the original complaint. Plaintiff argues that the cause of action raised against Early Warning in the prior complaints are distinguishable from the cause of action raised in the Fifth Amended Complaint because the prior claims were premised on Early Warning acting as a republisher of defamatory statements whereas the "new" claims are premised on Early Warning acting as an "originator" of defamatory statements. Again, Plaintiffs attempt to re-write history in his favor is unpersuasive. In the First Cause of Action in the original complaint, Plaintiff clearly alleged that "Early Warning Services caused to be published and/or ...


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