Drevaleva v. McDonough ( 2022 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TATYANA EVGENIEVNA Case No. 22-cv-04995-SK DREVALEVA, 8 Plaintiff, ORDER TO SHOW CAUSE 9 v. 10 DENIS RICHARD MCDONOUGH, et al., 11 Defendants. 12 On June 25, 2018, Plaintiff first filed her complaint of employment discrimination in this 13 District related to her employment as a medical instrument technician at the Raymond G. Murphy 14 Veterans Affairs Medical Center in Albuquerque, New Mexico starting in April 2017. (See 15 Drevaleva v. U.S. Dept. of Veteran Affairs, et al., Case No. 18-cv-3748 (“Drevaleva I”).) 16 Approximately six weeks after starting, Plaintiff requested a leave without pay for a month and a 17 half to travel to Russia to undergo in-vitro fertilization. Plaintiff left for Russia on May 18, 2017, 18 and was terminated on July 3, 2017. (Drevaleva I, Dkt. No. 69; see also Dkt. No. 1.) Plaintiff 19 was advised she had been terminated for taking a leave without permission. (Id.) On August 12, 20 2021, Drevaleva I was transferred to the District of New Mexico. (Drevaleva I, Dkt. No. 451.) 21 On November 21, 2021, the court in the District of New Mexico dismissed Plaintiff’s case with 22 prejudice and entered judgment. (Drevaleva I, Dkt. Nos. 526, 527.) The Tenth Circuit affirmed. 23 (Drevaleva I, Dkt. No. 577.) 24 On March 20, 2019, Plaintiff filed another Complaint in this District related to her alleged 25 employment discrimination from the Veterans Affairs Medical Center in Albuquerque. She 26 sought to compel disclosure of the EEO investigation. (Drevaleva v. United States, et al., Case. 27 No. 19-cv-1454 (“Drevaleva II”).) The Court dismissed Drevaleva II on September 20, 2019, 1 which the Ninth Circuit affirmed on November 18, 2020. (Drevaleva II, Dkt. No. 35, 60.) 2 On May 16, 2019, Plaintiff filed another Complaint in this District alleging employment 3 discrimination from the Veterans Affairs Medical Center in Albuquerque. (Drevaleva v. U.S. 4 Dept. of Veteran Affairs, et al., Case No. 19-cv-2665 (“Drevaleva III”).) The Court granted 5 Defendants’ motion to dismiss with prejudice. (Drevaleva III, Dkt. 38.) Plaintiff appealed but the 6 Ninth Circuit dismissed her appeal as frivolous. (Drevaleva III, Dkt. No. 80.) 7 Plaintiff also appealed her dismissal to the Merit Systems Protection Board and petitioned 8 the Federal Circuit Court of Appeals. The Federal Circuit transferred her employment 9 discrimination claims to this District on September 11, 2019. (Drevaleva v. U.S. Dept. of Veteran 10 Affairs, Case No. 19-cv-5927 (“Drevaleva IV”).) The Court dismissed Plaintiff case based on res judicata and entered judgment. (Drevaleva IV, Dkt. Nos. 34, 35.) Again, Plaintiff appealed, and, 11 again, the Ninth Circuit dismissed her appeal as frivolous. (Drevaleva IV, Dkt. No. 60.) 12 Plaintiff then filed another complaint on February 3, 2020, bringing claims under the 13 Federal Tort Claims Act and the Family Medical Leave Act. (Drevaleva v. U.S. Dept. of Veteran 14 Affairs, et al., Case No. 20-cv-0820 (“Drevaleva V”).) The Court dismissed her complaint as 15 frivolous and duplicative. (Drevaleva V, Dkt. No. 10.) Again, Plaintiff appealed, and, again, the 16 Ninth Circuit dismissed her appeal as frivolous. (Drevaleva V, Dkt. No. 37.) 17 On January 14, 2021, Plaintiff filed yet another complaint in this District. (Drevaleva v. 18 Glazer, et al., Case No. 21-cv-0500 (“Drevaleva VI”).) The Court dismissed Plaintiff case based 19 on res judicata and entered judgment. (Drevaleva VI, Dkt. Nos. 90, 112.) On October 26, 2022, 20 the Court declared Plaintiff a vexatious litigant. (Drevaleva VI, Dkt. No. 121.) 21 On January 26, 2021, Plaintiff filed even another complaint in this District. (Drevaleva v. 22 Hayo, et al., Case No. 21-cv-0684 (“Drevaleva VII”). The Court dismissed Plaintiff case based 23 on res judicata and entered judgment. (Drevaleva VII, Dkt. No. 76.) 24 On August 29, 2022, Plaintiff filed her complaint in the above captioned matter, calling it 25 her “Fourth Amended Complaint.” (Dkt. No.) Plaintiff alleges the same allegations from her 26 previous complaints. The Court HEREBY ORDERS Plaintiff to show cause why her claims are 27 not barred by res judicata. 1 Under the doctrine of res judicata, also known as claim preclusion, a party cannot relitigate 2 a claim that was previously decided. The Ninth Circuit has described the scope of that doctrine as 3 || follows: 4 Res judicata applies when “the earlier suit . . . (1) involved the same ‘claim’ or cause of action as the later suit, (2) reached a final judgment 5 on the merits, and (3) involved identical parties or privies.” Sidhu v. 6 Flecto Co., 279 F.3d 896, 900 (9th Cir. 2002). Whether the two suits involve the same claim or cause of action requires 7 us to look at four criteria, which we do not apply mechanistically: (1) whether the two suits arise out of the same transactional nucleus of facts; 8 (2) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (3) whether 9 the two suits involve infringement of the same right; and (4) whether substantially the same evidence is presented in the two actions. Chao v. 10 A-One Med. Servs., Inc., 346 F.3d 908, 921 (9th Cir. 2003). 11 We use a transaction test to determine whether the two suits share a common nucleus of operative fact. Int’] Union v. Karr, 994 F.2d 1426, 12 1429-30 (9th Cir. 1993). “Whether two events are part of the same transaction or series depends on whether they are related to the same set 13 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 14 (Second) Judgments § 24(2) (1982)). .. . 15 . .. We have often held the common nucleus criterion to be outcome determinative under the first res judicata element. E.g., Int’l Union, 994 16 F.2d at 1429-30 (holding criterion to be outcome determinative and listing cases using the same nucleus of operative fact as the exclusive factor to bar a second claim under res judicata). 3 18 Mpoyo vy. Litton Electro-Optical Sys., 430 F.3d 985, 987-88 (9th Cir. 2005) (first ellipsis in 19 original). Plaintiff shall file her response in writing by no later than January 20, 2023. Plaintiff is 20 admonished that if she does not respond to this OSC by January 20, 2023 or if she does not make a 21 showing as to why this case should not be dismissed based on res judicata, the Court will reassign 22 || this case to a district judge with a report and recommendation to dismiss this case. 23 IT IS SO ORDERED. 24 Dated: December 19, 2022 + 25 hndhasr. fae > ALLIE KIM 6 United States Magistrate Judge 27 28