Avril ADAMS, Plаintiff-Appellant, v. State of CALIFORNIA DEPARTMENT OF HEALTH SERVICES, a public entity; Donnata Moreland; Oaktree Investigations, a business entity and consumer reporting agency; Laurence A. Corbin, individually as an investigator for Oak Tree Investigations; Patricia Echard; Paulette Baker; Patrick Kennelly, individually and as a supervisor; Lavonne Coen, Defendants-Appellees.
No. 04-56880
United States Court of Appeals, Ninth Circuit
Submitted Dec. 5, 2006. Filed May 7, 2007.
487 F.3d 684
Before: HARRY PREGERSON, DAVID R. THOMPSON, and RICHARD C. TALLMAN, Circuit Judges.
Avril ADAMS, Plaintiff-Appellant, v. State of CALIFORNIA DEPARTMENT OF HEALTH SERVICES, a public entity; Donnata Moreland; Oaktree Investigations, a business entity and consumer reporting agency; Laurence A. Corbin, individually as an investigator fоr Oak Tree Investigations; Patricia Echard; Paulette Baker; Patrick Kennelly, individually and as a supervisor; Lavonne Coen, Defendants-Appellees.
No. 04-56880.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 5, 2006.*
Filed May 7, 2007.
Martin H. Milas, Deputy Attorney General, Los Angeles, CA, for the appellees.
Before: HARRY PREGERSON, DAVID R. THOMPSON, and RICHARD C. TALLMAN, Circuit Judges.
ORDER WITHDRAWING OPINION AND OPINION
THOMPSON, Senior Circuit Judge.
ORDER
The plaintiff-appellant‘s petition for panel rehearing is GRANTED. The opinion filed here on February 13, 2007, and published at 2007 WL 446582 is WITHDRAWN.
The parties are not precluded from filing further petitions for panel and en banc rehearing.
OPINION
Appеllant Avril Adams appeals the district court‘s dismissal with prejudice of her complaint against Appellees the California Department of Health Services (“CDHS“); CDHS employees Donnata Moreland, La Vonne Coen, Patricia Echard, Paulette Baker, and Patrick Kennelly; and Oaktree Investigations and its employee, Laurence Corbin. We have jurisdiction under
I. BACKGROUND
In January 2001, Adams applied for a food and drug inspector (“FDI“) position with CDHS. Food and drug inspectors are peace officers and carry firearms; investigate violations; make arrests; and travel to food storage, processing facilities, and farms. Adams was offered the position she sought, but her actual hiring was conditioned upon her successful completion of a background investigation, including medical and psychological evaluations.
Adams passed the psychological evaluation, but Dr. Stephen G. Weyers notified her that he had recommended restrictions on her ability to perform activities that required maximal exertion and balance. CDHS then advised Adams it was unable to accommodate her medical restrictions, and it withdrew the conditional job offer. Thereafter, Adams took a new treadmill stress test, and Dr. Weyers medically approved her without limitation for the food and drug investigator position.
CDHS then withdrew its medical disqualification of Adams and notified her it would resume her selection process. Adams objected to further investigation. Thereafter, on March 14, 2003, CDHS sent Adams a letter notifying her that it had rescinded its conditional offer of employment. Four days later, on March 18, 2003, the State Personnel Board (“SPB“) ruled on Adams‘s appeal of Dr. Weyers‘s decision to disqualify her for medical reasons. Because Dr. Weyers had subsequently approved her, the SPB granted Adams‘s appeal and advised her she would be appointed to the FDI position within 120 days unless she was unsuccessful in the balance of the selection process.
According to Adams, CDHS then engaged Oaktree Investigations to interview CDHS employees about Adams‘s behavior during the selection process. Laurеnce Corbin of Oaktree Investigations interviewed CDHS employees Echard, Kennelly, Moreland, Coen, and Baker on March 27, 2003, and memorialized the results of the interviews in a report dated April 2, 2003.
On April 1, 2003, Adams filed a petition for rehearing with the SPB, arguing that she should be appointed to the FDI position immediately because the selection process ended when she was deemed medically qualified. CDHS filed a response to Adams‘s petition on May 13, 2003, stating that it withdrew Adams‘s conditional offer of employment the second time becаuse, during the completion of the investigation process, questions arose regarding Adams‘s suitability as a peace officer. The response detailed Adams‘s behavior during the selection process, which behavior included challenging a CDHS employee to a race during the SPB hearing; making numerous phone calls; and sending emails and letters to CDHS employees in which Adams‘s tone was “rude,” “discourteous,” “abrupt,” “angry,” and “challenging in a demeaning way.” The response concluded
Adams filed a complaint in state court on November 10, 2003, naming CDHS, Coen, Moreland, and Dr. Weyers as defendants. Adams asserted claims for (1) retaliation in violation of
Adams‘s complaint also detailed the facts behind the reopening of the background investigation to support her claims for negligence, violations of
Adams‘s action was removed to federal court on December 8, 2003. Adams v. Cal. Dep‘t of Health Servs., No. CV-03-8920 (C.D. Cal. filed Dec. 8, 2003). The district court issued a scheduling order setting March 26, 2004, as the deadline for filing motions to amend the complaint or add additional parties.
On July 1, 2004, well past the March 26, 2004 deadline set in the scheduling order, Adams filed a motion for leave to amend her complaint. Adams wanted to add as defendants Oaktree Investigations and Oaktree investigator Corbin, as well as CDHS employees Echard, Baker, and Kennelly. In her proposed amended complaint she alleged four additional claims: (1) violation of the FCRA; (2) violation of the California Investigative Consumer Reporting Agencies Act (“ICRA“),
Finding that Adams failed to demonstrate good cause for the undue delay in seeking leave to amend, and that granting her motion to amend would prejudice the defendants already named in her complaint, the district court denied Adams‘s motion as untimеly. The action then proceeded to trial, and a jury found in favor of the defendants. Adams appealed the denial of her motion for leave to amend, among other issues, to our court. In a memorandum disposition, we affirmed the district court‘s decisions and the judgment in that first case. Adams v. State of Cal. Dep‘t of Health Servs., 220 Fed.Appx. 590 (9th Cir. 2007).
On September 2, 2004, after the district court denied her motion for leave to amend in the first case, Adams filed the complaint in this present case. In her complaint in this case, Adams set forth the four additional claims she had sought to add by her previously denied motion for leave to amend her complaint in the first case. In the present case, the district court determined that Adams‘s newly filed complaint was duplicative of the complaint she had previously filed in the other case, and the
II. STANDARD OF REVIEW
District courts retain broad discretion to control their dockets and “[i]n the exercise of that power they may impose sanctions including, where appropriate, default or dismissal.” Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir.1986) (per curiam); see also Link v. Wabash R.R., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). We review for abuse of discretion the district court‘s dismissal with prejudice of Adams‘s complaint. After weighing the equities of the case, the district court may exercise its discretion to dismiss a duplicative later-filed action, to stay that action pending resolution of the previously filed action, to enjoin the parties from proceeding with it, or to consolidate both actions. See Curtis v. Citibank, N.A., 226 F.3d 133, 138-39 (2d Cir.2000); Walton v. Eaton Corp., 563 F.2d 66, 70-71 (3d Cir.1977) (en banc), cited with approval in Russ v. Standard Ins. Co., 120 F.3d 988, 990 (9th Cir. 1997).
III. DISCUSSION
Adams filed her present complaint in an attempt to avoid the consequences of her own delay and to circumvent the district court‘s denial of hеr untimely motion for leave to amend her1 first complaint. However, as the Tenth Circuit stated in Hartsel Springs Ranch of Colorado, Inc. v. Bluegreen Corp., 296 F.3d 982, 989 (10th Cir.2002) (internal quotation marks omitted), “the fact that plaintiff was denied leave to amend does not give h[er] the right to file a second lawsuit based on the same facts.” Plaintiffs generally have “no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.” Walton, 563 F.2d at 70; see also Curtis, 226 F.3d at 138-39; Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223-24 (7th Cir.1993); Oliney v. Gardner, 771 F.2d 856, 859 (5th Cir. 1985); Zerilli v. Evening News Ass‘n, 628 F.2d 217, 222 (D.C.Cir.1980); Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849, 851 (1st Cir. 1947).
We find that Adams‘s later-filed complaint is duplicative of her earlier-filed complaint and, further, that given the circumstances of this case, the district cоurt did not abuse its discretion in dismissing Adams‘s later-filed complaint with prejudice.1
A. Duplicative Complaint
To determine whether a suit is duplicative, we borrow from the test for claim preclusion. As the Supreme Court
Thus, in assessing whether the second action is duplicative of the first, we examine whether the causes of action and relief sought, as well as the parties or privies to the action, are the same. See The Haytian Republic, 154 U.S. at 124 (“There must be the same parties, or, at least, such as represent the same interests; there must be the same rights asserted and the same relief prayed for; the relief must be founded upon the same facts, and the ... essential basis, of the relief sought must be the same.” (internal quotation marks omitted)); Curtis, 226 F.3d at 140 (holding that the trial court did not abuse its discretion in dismissing ”Curtis II claims arising out of the same events as those alleged in Curtis I,” which claims “would have been heard if plaintiffs had timely raised them“); Serlin, 3 F.3d at 223 (“[A] suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions.” (internal quotation marks omitted)).
1. Same Causes of Action
We examine first whether the causes of action in Adams‘s two suits are identical. To ascertain whether successive causes of action are the same, we use the transaction test, developed in the context of claim preclusion. “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.” Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir.1992) (citing Restatement (Second) of Judgments § 24(1) (1982)). In applying the transaction test, we examine four criteria:
(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.
Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982). “The last of these criteria is the most important.” Id. at 1202.
Here, it is clear that the two actions share a common transactional nucleus of facts. The first complaint detailed the factual allegations surrounding the reopening of Adams‘s backgrоund investigation and used those allegations to support claims under the legal theories of negligence; violations of
In addition, any judgment in the present action necessarily would destroy or impair rights and interests established by the judgment in the first action. As Adams alleges in her present complaint, both the FCRA and the ICRA require consent to and disclosure of an investigation. See
Furthermore, although Adams argues that the additional report she uncovered on January 17, 2004, written by Oaktree Investigations and containing affidavits from Kennelly, Echard, and Baker, cоnstitutes “new” evidence, the report cannot be said to be “new” in any sense because, as Adams states in her complaint, it was dated April 3, 2003 and was provided to Adams by CDHS during discovery in the first action. In addition, the report is merely cumulative of CDHS‘s response of May 13, 2003 to Adams‘s petition for rehearing before the SPB, which explained that CDHS had withdrawn Adams‘s conditional offer of employment because of her behavior in the balance of the selection process. Adams in her first complaint quotes liberally from CDHS‘s response as factual support for her claims. Thus, the additional evidentiary detail surrounding Echard‘s and Baker‘s comments in the Oaktree Investigations report “is scarcely enough to establish that the instant lawsuit arises out of a different ‘transactional nucleus of facts’ than that which generated the [first] suit.” Costantini, 681 F.2d at 1202; cf. Int‘l Union of Operating Eng‘rs-Employers Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1430 (9th Cir.1993) (“The fact that some different evidence may be presented in this action ... does not defeat the bar of res judicata.“).
In addition, the key evidence presented during trial in the first action regarding Adams‘s claim of retaliation was the testimony of CDHS employees Moreland and Coen concerning Adams‘s behavior during the selection process. Kennelly, Echard, Baker, and Corbin all submitted declarations in the first action regarding the information gathered during the reopened background investigation in support of CDHS‘s motion for summary judgment. As the district court stated in its order denying Adams‘s motion for a new trial in
Finally, although the FCRA and the ICRA establish distinct rights enforceable by litigants, this factor alone does not differentiate the causes of action. Cf. Derish v. San Mateo-Burlingame Bd. of Realtors, 724 F.2d 1347, 1349 (9th Cir. 1983), overruling on other grounds recognized by Eichman v. Fotomat Corp., 759 F.2d 1434, 1437 (9th Cir.1985). Indeed, in the claim preclusion context, the most significant factor is that the causes of action arise from a common transactional nucleus of facts. See, e.g., Western Sys., 958 F.2d at 871; C.D. Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987); Costantini, 681 F.2d at 1201. Moreover, Adams seeks substantially the same relief in both actions—compensatory, exemplary, and punitive damages for the reopening of the baсkground investigation and the withdrawal of her conditional offer of employment, allegedly in violation of her statutory and constitutional rights, and a declaratory judgment that CDHS unlawfully reopened her background investigation and withdrew her conditional offer of employment.
It is clear that the claims in Adams‘s present complaint arise out of the same transactional nucleus of facts asserted in her first action and that rights established by the judgment in the first action would be destroyed or impaired by a judgment in the present action. It is also рlain that substantially the same evidence was and would be presented in both actions. Thus, under the Costantini factors, we conclude that the two suits involve the same cause of action.
2. Same Parties or Privies
While Adams‘s present complaint names five additional defendants, these new defendants are in privity with CDHS, because CDHS can be said to have “virtually represented” the new defendants in the first action. See Kourtis v. Cameron, 419 F.3d 989, 996 (9th Cir.2005). Although the concept of privity traditionally applied to a narrow class of relationships in which “a person [is] so identified in interest with a pаrty to former litigation that he represents precisely the same right in respect to the subject matter involved,” we have expanded the concept to include a broader array of relationships which fit under the title of “virtual representation.” Id. (internal quotation marks omitted). The necessary elements of virtual representation are an identity of interests and adequate representation. Id. Additional features of a virtual representation relationship include “a close relationship, substantial pаrticipation, and tactical maneuvering.” Id. (quoting Irwin v. Mascott, 370 F.3d 924, 930 (9th Cir.2004)).
Here, three of the new defendants—Patricia Echard, Paulette Baker, and Patrick Kennelly—were employees of CDHS at the time of the events described in both of Adams‘s complaints and thus had a close relationship with both CDHS and the CDHS employees named as defendants in the first complaint. See Irwin, 370 F.3d at 930-31 (finding senior corporate officer virtually represented by his corporation). In addition, all three participated in the first action by submitting in support of CDHS‘s motion for summary judgment declаrations regarding their participation in Adams‘s background investigation. Moreover, the interests of the three new employee-defendants are aligned with CDHS because CDHS‘s liability was predicated largely upon a finding of wrongdoing by its employees.
Finally, CDHS adequately represented the five new defendants named in the present action and Adams makes no allegations to the contrary. CDHS consistently maintained that the reopening of the background investigation and the withdrawal of Adams‘s job offer were legal and proper under the circumstances and that its employees and agents acted lawfully. No conflicts central to the issues in this litigation exist between CDHS and thе five new defendants. Cf. Kourtis, 419 F.3d at 998 (concluding no virtual representation existed where an agency relationship existed, but the interests of the parties were adverse).
B. No Abuse of Discretion
Although the district court alternatively could have opted to dismiss Adams‘s2 later-filed complaint without prejudice, to consolidate the two actions, or to stay or enjoin proceedings, under the circumstances of this case, the district court did not abuse its discretion in electing to dismiss the second action with prejudice.2 Cf. Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 96 L.Ed. 200 (1952) (“Wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, does not counsel rigid mechanical solution of such problems.“). In a situation such as here, where one district court had duplicative suits contemporaneously pending on its docket, we conclude, as did the Supreme Court in an analogous situation, that “[n]ecessarily, an ample degree of discretion, appropriate for disciplined and experienced judges, must be left to the lower court[ ].” Id. at 183-84; see also id. at 184 (“Even if we had more doubts than we dо about the analysis made by the Court of Appeals, we would not feel justified in displacing its judgment with ours.“).
Dismissal of the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, promotes judicial economy and the “comprehensive disposition of litigation.” Id. at 183.
While we might have found an abuse of discretion had the claims in Adams‘s second suit been based on events occurring subsequent to the filing of her complaint in the first action, that is not the case here. Cf. Curtis, 226 F.3d at 139-40 (reversing the district court‘s dismissal of claims in thе second action arising out of events occurring subsequent to the filing of complaint in the first action). To the contrary, Adams had a full and fair opportunity to raise and litigate in her first action the claims she now asserts in this action. Cf. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 328, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (“[T]he requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.” (internal quotation marks omitted)); Ross v. Int‘l Bhd. of Elec. Workers, 634 F.2d 453, 458 (9th Cir. 1980) (“The question [before applying res judicata to bar the second suit] is ... whether [plaintiff] had a fair opportunity to litigаte that claim before a competent court prior to bringing it to the court below.“).
The allegedly illegal background investigation conducted by Oaktree Investigations occurred in March 2003, eight months before Adams filed her first action in state court in November 2003. In addition, the April 2003 Oaktree Investigations report upon which Adams bases her claims under the FCRA and the ICRA was made available to Adams as part of the discovery materials provided by CDHS. Adams herself admits that she uncovered this report on January 17, 2004, more than two months prior to the deadline in the first action for amending the complaint.
Moreover, it is clear that Adams had knowledge of the factual basis undergirding her FCRA and ICRA claims when she filed the complaint in the first action. Adams‘s petition for rehearing to the SPB squarely raised the issue of whether CDHS was permitted to resume its background investigation of her after the medical disqualification was withdrawn. In addition, the facts surrounding the allegedly illegal background investigation were laid out in CDHS‘s response of May 2003 to Adam‘s petition for rehearing before the SPB; CDHS used the informаtion gleaned from the March 2003 investigation as additional support for its withdrawal of Adams‘s conditional offer of employment. Significantly, Adams in her first complaint outlined the facts gleaned from the reopened background investigation and posited that the reopening of the investigation was “arguably illegal based upon the Fair Credit Reporting Act.”
Adams was required to bring at one time all of the claims against a party or privies relating to the same transaction or event. See N. Assur. Co. of Am. v. Square D Co., 201 F.3d 84, 88 (2d Cir.2000); Nilsen v. City of Moss Point, 701 F.2d 556, 564 (5th Cir.1983) (en banc); Restatement (Second) of Judgments § 25, cmt. b (1982) (“It is immaterial that the plaintiff in the
The district court acted within its discretion in dismissing Adams‘s duplicative complaint with prejudice and preventing her from “fragment[ing] a single cause of action and [ ] litigat[ing] piecemeal the issues which could have been resolved in one action.” Flynn v. State Bd. of Chiropractic Exam‘rs, 418 F.2d 668, 668 (9th Cir. 1969) (per curiam).
AFFIRMED.