United States District Court, C.D. California
April 7, 2015
UEON BAK, Plaintiff,
PATRICK R. DONAHOE, Postmaster General, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On July 1, 2014, Plaintiff paid the filing fee and filed a pro se civil rights Complaint against United States Postmaster General Patrick R. Donahoe. The Complaint, which is not a model of clarity, appears to allege Plaintiff was unlawfully forced to resign from his job with the United States Postal Service in 1989. The Complaint asserts that, after Plaintiff took a day off work to care for his minor daughter, Plaintiff's supervisor deemed Plaintiff "AWOL." Plaintiff then allegedly became upset and resigned from his job, effective September 1, 1989. Later that day, however, Plaintiff assertedly told personnel manager Margaret "Peggy" Oliver that Plaintiff wished to rescind his resignation. Oliver allegedly said she would tear up the resignation. Plaintiff assertedly continued to work until September 10, 1989. Plaintiff alleges that Oliver "forged" the effective date of the resignation, assertedly changing the date to September 11, 1989, and then allegedly told Plaintiff that Plaintiff's resignation would be effective on September 11. Due to this purportedly "forced resignation, " Plaintiff assertedly lost his career and his home. Attached to the Complaint are various documents, including:
1. a copy of an order of the United States Equal Opportunity Employment Commission ("EEOC"), dated May 1, 2014, denying reconsideration of the EEOC's 2013 decision rejecting Plaintiff's discrimination claim on the ground that the claim had been "fully litigated through the EEO process, U.S. District Court, the 9th Circuit Court of Appeals, and the U.S. Supreme Court";
2. a partial copy of the decision of the United States Court of Appeals for the Ninth Circuit in Bak v. Postal Service, 52 F.3d 241 (9th Cir. 1995) (discussed further below);
3. an interim Order issued by an EEOC administrative law judge, dated December 4, 2000; and
4. copies of documents bearing the case numbers of several of Plaintiff's appeals in other cases in the United States Court of Appeals for the Ninth Circuit (discussed further below).
On January 29, 2015, Defendant Donahoe and the United States Postal Service filed a Motion to Dismiss on the ground that this action assertedly is barred by the doctrine of res judicata. On March 6, 2015, Plaintiff filed an Opposition.
STANDARDS GOVERNING MOTION TO DISMISS
"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Zucco Partners, LLC v. Digimatic Corp., 552 F.3d 981, 989 (9th Cir. 2009) (on motion to dismiss, court takes as true all non-conclusory factual allegations in the complaint and construes the complaint in the light most favorable to the plaintiff). "Generally a court may not consider material beyond the complaint in ruling on a Fed.R.Civ.P. 12(b)(6) motion." Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and footnote omitted). However, the Court may consider matters properly the subject of judicial notice. See id.
The Court may not dismiss a complaint without leave to amend unless "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citations and quotations omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (district court should grant leave to amend "unless it determines that the pleading could not possibly be cured by the allegation of other facts") (citation and internal quotations omitted).
PLAINTIFF'S PRIOR ACTIONS
In each of the below-described prior actions, Plaintiff asserted claims arising out of the same 1989 resignation or termination from the Postal Service that is the subject of the present action:
1. Bak v. USPS, SA CV 93-181-AHS(RWR)
Plaintiff, represented by counsel, filed action SA CV 93-181-AHS (RWR) in this Court on February 19, 1993. On June 22, 1993, the Court dismissed the action for lack of jurisdiction on the ground that Plaintiff had failed to exhaust administrative remedies following an EEOC decision rejecting Plaintiff's age discrimination claim. See Bak v. Postal Service, 52 F.3d 241, 242 (9th Cir. 1995); see also Bak v. USPS, SA CV 93-181-AHS(RWR), ECF Docket Entry No. 9. In 1995, the Ninth Circuit vacated the judgment and remanded the case. See Bak v. Postal Service, 52 F.3d at 242.
Following remand, this Court conducted a bench trial and entered judgment for the Defendant on March 12, 1996. Bak v. USPS, SA CV 93-181-AHS(RWR), ECF Docket Entry No. 31. As described by the Ninth Circuit on subsequent appeal:
The district judge determined that Bak's employment was terminated due to the untimeliness of his attempted rescission on the basis of the following evidence: the credibility and testimony of Peggy Oliver, the manager of employment and development at the Post Office branch where Bak was employed; Bak's unsubstantiated testimony that he had submitted a written rescission to his resignation prior to its effective date; Bak's prior resignations from the Postal Service, all of which he had been permitted to rescind while over the age of forty; and the ages of Bak's postal supervisors.
Bak v. Runyon, 112 F.3d 515, 1997 WL 210838, at *1 (9th Cir.) (unpublished), cert. denied, 522 U.S. 952 (1997). The Ninth Circuit affirmed. See id.
2. Bak v. United States Postal Service, 215 F.3d 1347, 99 WL 600409 (Fed. Cir. 1999) (unpublished)
Plaintiff appealed from an adverse decision of the Merit Systems Protection Board. Plaintiff argued that the Board improperly had denied Plaintiff's administrative appeal based on purportedly forged documents. The Ninth Circuit affirmed the decision of the Merit Systems Protection Board.
3. Bak v. Potter, CV 03-9377-R(CT) Bak v. Potter, SA CV 04-148-AHS(AN)
Plaintiff, represented by counsel, filed this action on December 22, 2003. On February 28, 2006, this Court granted summary judgment for Defendant. See Bak v. Potter, SA CV 04-148-AHS(AN), ECF Docket No. 32. The Court ruled that: (1) Plaintiff had failed timely to exhaust EEOC administrative remedies; (2) Plaintiff had failed to produce evidence sufficient to show a prima facie case of retaliation or to show that the Defendant's reasons for its actions were pretextual; and (3) Plaintiff had failed to show a prima facie case of discriminatory treatment. See id. Judgment was entered on March 2, 2006, dismissing the action with prejudice. See Bak v. Potter, SA CV 04-148-AHS(AN), ECF Docket No. 33. Again, the Ninth Circuit affirmed. See Bak v. Potter, 245 Fed.App'x 688 (9th Cir. 2007), cert. denied, 552 U.S. 1127 (2008).
4. Bak v. Potter, SA CV 10-983-UA
Plaintiff, proceeding pro se, lodged a civil rights complaint and a request for leave to proceed in forma pauperis on June 28, 2010. See Bak v. Potter, SA CV 10-983-UA, ECF Docket No. 1. Plaintiff's claims for "wrongful termination and forgeries" again concerned the 1989 resignation/termination from the Postal Service. On July 1, 2010, the Court denied Plaintiff's request to proceed in forma pauperis on the grounds that Plaintiff had failed to make out an adequate showing of indigency and that the complaint was "legally and/or factually patently frivolous." The Ninth Circuit affirmed. See Bak v. Potter, 465 Fed.App'x 705 (9th Cir.), cert. denied, 133 S.Ct. 236 (2012).
5. Bak v. Potter, SA CV 10-1013-AG(MLG)
Plaintiff, proceeding pro se, paid the filing fee and filed a civil rights complaint on July 2, 2010, again alleging claims for wrongful termination arising out of the 1989 resignation/termination. Thereafter, the Court issued two orders to show cause requiring Plaintiff to show cause why the action should not be dismissed for failure to effect timely service and failure to prosecute. See Bak v. Potter, SA CV 10-1013-AG(MLG), ECF Docket Nos. 6, 15. On March 8, 2011, the Court dismissed the action for failure to effect timely service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and for failure to demonstrate good cause for the lack of service. See Bak v. Potter, SA CV 10-1013-AG(MLG), ECF Docket No. 17.
When considering the effect of a prior federal court judgment, the Court applies the federal law of res judicata. First Pacific Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1128 (9th Cir. 2000) (citation omitted). "The doctrine of res judicata bars a party from bringing a claim if a court of competent jurisdiction has rendered a final judgment on the merits of the claim in a previous action involving the same parties or their privies." Cusano v. Klein, 264 F.3d 936, 948 (9th Cir. 2001) (citation and internal quotations omitted). Claim preclusion "bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action." Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (citation and internal quotations omitted). "The doctrine is applicable whenever there is (1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties." Id . (citation and internal quotations omitted). In determining the identity of claims, the court may 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." U.S. v. Liquidators of European Federal Credit Bank, 630 F.3d 1139, 1150-51 (9th Cir. 2001) (citations and internal quotations omitted). The fourth criterion is the most important. Id. at 1151 (citation omitted).
In Bak v. USPS, SA CV 93-181-AHS(RWR), after a bench trial, the Court rejected on the merits Plaintiff's claims against the Postal Service arising out of the same transactional nucleus of facts as Plaintiff's present claims against the Postmaster General. Indeed, the present Complaint alleges that "[a]t Santa Ana District Court, Ms. Peggy Oliver perjured herself in front of Honorable Judge Alice Marie [sic] Stotler" (Complaint, p. 2). This allegation highlights the fact that the present action seeks to relitigate issues decided adversely to Plaintiff in Bak v. USPS, SA CV 93-181-AHS(RWR). Moreover, in Bak v. Potter, SA CV 04-148-AHS(AN), the court granted summary judgment for the former Postmaster General on claims arising out of the same transactional nucleus of facts as that alleged here. Both prior cases involved the same alleged infringement of Plaintiff's asserted right to be free from asserted discrimination in employment and asserted wrongful termination.
Plaintiff does not contend otherwise. Plaintiff also does not argue any absence of privity between the defendants in Bak v. USPS, SA CV 93-181-AHS(RWR) and Bak v. Potter, SA CV 04-148-AHS(AN) and Defendants here. Rather, Plaintiff asserts, in conclusory fashion, that Plaintiff had no "opportunity to exercise his right to be justified by court [sic], " and that "Plaintiff's case was not properly processed, due to the complication to the court system" (Opposition, p. 1). To the contrary, the dockets and records in Bak v. USPS, SA CV 93-181-AHS(RWR), and Bak v. Potter, SA CV 04-148-AHS(AN), dispel any suggestion of any such infirmities in the prior actions. Under the doctrine of res judicata, the final judgments in Bak v. USPS, SA CV 93-181-AHS(RWR) and Bak v. Potter, SA CV 04-148-AHS(AN) bar Plaintiff's present claims. See, e.g., Nnachi v. City and County of San Francisco, 467 Fed.App'x 644, 645 (9th Cir. 2012) (res judicata barred age discrimination claim which was or could have been raised in earlier Title VII action against same defendant). Because Plaintiff cannot possibly amend his Complaint to avoid the res judicata bar, granting leave to amend would be an idle act. See Davis v. County of Maui, 454 Fed.App'x 582, 583 (9th Cir. 2011) ("The district court correctly denied Davis leave to amend his complaint because res judicata would bar relief even with his proposed amendments, and, thus, amendment would be futile."). The Complaint should be dismissed without leave to amend and the action should be dismissed with prejudice.
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the Complaint without leave to amend and dismissing the action with prejudice.