(PS) Reyes v. Kaiser Permanente Foundation Hospital ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IRVIN REYES, No. 2:21-cv-0571-KJM-CKD PS 12 Plaintiff, 13 v. ORDER 14 KAISER PERMANENTE FOUNDATION (ECF Nos. 4, 10) HOSPITAL, 15 Defendant. 16 17 18 Plaintiff is proceeding without counsel in this fee-paid action—his third federal suit 19 against his former employer, Kaiser Permanente.1 On April 27, 2021, the court on its own 20 motion ordered plaintiff to show cause why the action should not be dismissed as barred by res 21 judicata. (ECF No. 4.) On May 27, 2021, after receiving an extension of time, plaintiff filed a 22 response. (ECF No. 10.) 23 After carefully considering plaintiff’s response and the nature of his prior suits in both 24 federal and state court, the undersigned finds that there is good cause to allow the instant 25 1 This case is referred to the undersigned for pre-trial proceedings pursuant to 28 U.S.C. 26 § 636(b)(1) and Local Rule 302(c)(21). The complaint was initially filed in forma pauperis on 27 March 29, 2021, but after the undersigned recommended dismissing the action at the screening stage, plaintiff paid the filing fee, and that dismissal recommendation was vacated. (ECF 28 Nos. 1-4; Dkt. Entry 4/26/21.) 1 complaint to proceed, despite the court’s initial misgivings. The court does not opine definitively 2 at this juncture whether or not this action is res judicata barred. The court simply concludes that 3 sua sponte dismissal is not appropriate because California law does not decisively establish that 4 the claim(s) presently asserted are precluded by the prior adverse state court judgment.2 5 Plaintiff may therefore resume prosecuting this case, with the next step being to properly 6 serve Kaiser with service of process (or to obtain a waiver of service) and to file proof of service 7 (or defendant’s waiver) with the court. Plaintiff will have 90 days from the date of this order to 8 do so. 9 Plaintiff had difficulty with this step in his last case against Kaiser (which was also before 10 the undersigned). The court reminds plaintiff to review Federal Rule of Civil Procedure 4, 11 particularly subsection 4(h) regarding service on corporate defendants.3 See Long v. McAfee, 12 2019 WL 5536228, at *4 (E.D. Cal. Oct. 25, 2019) (discussing permissible methods of serving 13 corporate entities in California). In addition, based on plaintiff’s service attempts in his prior 14 federal cases, it appears that the 6600 Bruceville Road location where plaintiff used to work is 15 likely not an appropriate site for service of process on Kaiser. Plaintiff would do well to research 16 the name and address of Kaiser’s registered agent(s) for service of process, which can be found 17 /// 18 /// 19 /// 20 2 Here, plaintiff alleges retaliation by Kaiser at his post-termination unemployment benefits 21 hearing (allegedly retaliating against him for filing his state court wrongful termination suit), and he claims injury from the denial of unemployment benefits; whereas, the state court wrongful 22 termination suit and plaintiff’s more recently dismissed federal suits centered on his treatment 23 leading up to his termination and claimed injury from the termination itself. Cf. Gonzales v. California Dep’t of Corr., 739 F.3d 1226, 1232 (9th Cir. 2014) (“As opposed to the federal 24 ‘transactional’ theory of claim preclusion, California courts employ the ‘primary rights’ theory to determine what constitutes the same cause of action for claim preclusion purposes.” (cleaned 25 up)); Eichman v. Fotomat Corp., 147 Cal. App. 3d 1170, 1174 (Cal. Ct. App. 1983) (“[I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant then the 26 same primary right is at stake . . . .”). 27 3 Plaintiff may consider hiring a process server, although of course that is not required. What is 28 required is proper service as outlined by Rule 4 of the Federal Rules of Civil Procedure. 1 | through the California Secretary of State’s business search tool at 2 || https://businesssearch.sos.ca.gov/. The court further notes, based on defendant’s appearance in 3 || one of plaintiffs prior cases, that defendant’s legal name is Kaiser Foundation Hospitals, Inc. 4 | (See E.D. Cal. No. 2:18-cv-0622, ECF No. 10 (Answer) at 2.) 5 ORDER 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The April 27, 2021 order to show cause (ECF No. 4) is discharged; 8 2. The Clerk of Court is instructed to issue a Summons and the standard Civil New Case 9 Documents for this case, and to serve those documents on plaintiff; and 10 3. Within 90 days of entry of this order, plaintiff shall file proof of service (or of defendant’s 11 waiver of service) of the summons and the complaint on defendant Kaiser Permanente. 12 || Dated: June 17, 2021 fed) / dha ANG fe □□□ -AGeo 8 CAROLYNK.DELANEY 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 || 19.xeye.0571 18 19 20 21 22 23 24 25 26 27 28