Udo v. Bank of America, N.A.

• Court: District Court, N.D. California
• Decided: July 26, 2024
• Docket: 4:24-cv-01310
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ETOP UDO, et al., Case No. 24-cv-01310-LJC

8 Plaintiffs, ORDER TO SHOW CAUSE WHY 9 v. CASE SHOULD NOT BE DISMISSED

10 BANK OF AMERICA , N.A., et al., Defendants. 11

12 13 I. INTRODUCTION 14 Plaintiffs Etop Udo and Legal Task Help, LLC bring several claims against Defendants 15 Bank of America, N.A.; U.S. Bank; Wells Fargo Bank, N.A.; and Bank of the West. For the 16 reasons discussed below, Plaintiffs are ORDERED TO SHOW CAUSE why this case should not 17 be dismissed sua sponte for failure to serve process within the time allowed, and based on the res 18 judicata effect of a previous case filed by Udo, Case No. 23-cv-02935-JSW. 19 II. FAILURE TO SERVE 20 “If a defendant is not served within 90 days after the complaint is filed, the court—on 21 motion or on its own after notice to the plaintiff—must dismiss the action without prejudice 22 against that defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). 23 This case was filed on March 4, 2024. See generally Compl. (ECF No. 1). Allowing for the fact 24 that ninety days from that date was a Sunday (June 2, 2024), the deadline to complete service was 25 therefore June 3, 2024. There is no indication in the docket that any defendant has been served to 26 date. Plaintiffs are ORDERED TO SHOW CAUSE why this case should not be dismissed for 27 failure to serve process within the time allowed by Rule 4(m) of the Federal Rules of Civil 1 III. RES JUDICATA 2 Plaintiffs’ Complaint here is word-for-word identical to the First Amended Complaint in 3 Udo’s previous case, except for: (1) the addition of Legal Help as a plaintiff in the caption and in 4 two paragraphs of the present Complaint; and (2) a corrected citation to federal statutes rather than 5 a California statute addressing venue. See Compl. ¶¶ 1, 8; see generally Case No. 23-cv-02935- 6 JSW, ECF No. 20 (1st Am. Compl.). Judge White granted Defendants’ motion to dismiss that 7 previous case, concluding that “leave to amend would be futile” and dismissing the case “with 8 prejudice.” Udo v. Wells Fargo Bank, N.A., No. 23-cv-02935-JSW, 2023 WL 8600791, at *5 9 (N.D. Cal. Dec. 12, 2023). He entered judgment accordingly on December 12, 2023. Case No. 10 23-cv-02935-JSW, ECF No. 67. Udo appealed, but the Ninth Circuit dismissed that appeal for 11 lack of jurisdiction because Udo filed it too late, leaving the judgment entered by Judge White 12 undisturbed. Case No. 23-cv-02935-JSW, ECF No. 73. The same attorney who represented Udo 13 in that previous case represents both Plaintiffs in this case. 14 “The doctrine of res judicata provides that a final judgment on the merits bars further 15 claims by parties or their privies based on the same cause of action, and is central to the purpose 16 for which civil courts have been established, the conclusive resolution of disputes within their 17 jurisdiction. The elements necessary to establish res judicata are: (1) an identity of claims, (2) a 18 final judgment on the merits, and (3) privity between parties.” Headwaters Inc. v. U.S. Forest 19 Serv., 399 F.3d 1047, 1051–52 (9th Cir. 2005) (cleaned up). As a general matter, a court may, sua 20 sponte, dismiss a case on preclusion grounds “where the records of that court show that a previous 21 action covering the same subject matter and parties had been dismissed.” Id. at 1054 (cleaned up). 22 Each of the elements of res judicata appears to be satisfied here. 23 As noted above, the Complaint here is virtually identical to the First Amended Complaint 24 in Udo’s previous case. It asserts identical claims based on identical facts, thus meeting the first 25 element of res judicata. 26 “Unless the dismissal order states otherwise, a dismissal [ordinarily] operates as an 27 adjudication on the merits.” Fed. R. Civ. P. 41(b). Judge White’s dismissal of Udo’s previous 1 prejudice.” Udo, 2023 WL 8600791, at *5. Nor does it fall within any of the exceptions to Rule 2 41(b)’s presumption of an adjudication on the merits, such as a dismissal for lack of jurisdiction or 3 a voluntary dismissal under Rule 41(a). See generally id.; Fed. R. Civ. P. 41(a), (b). That 4 dismissal therefore served as a “final judgment on the merits,” satisfying the second element for 5 res judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (citing Rule 41(b) to hold 6 that an order granting a motion to dismiss served as a final judgment on the merits for the purpose 7 of res judicata). 8 Finally, the Complaint also appears to indicate that there is privity between the parties. 9 “Privity is a legal conclusion designating a person so identified in interest with a party to former 10 litigation that he represents precisely the same right in respect to the subject matter involved.” 11 Headwaters, 399 F.3d 1047 at 1052–53 (cleaned up). Udo is an identical party in both cases, so 12 res judicata applies to his own claims reasserted here. Although Legal Task Help, LLC is a new 13 plaintiff here, the Complaint defines the terms “‘Plaintiff’ and/or ‘Udo’” to refer jointly to Udo 14 and the LLC, Compl. at 1 (Introduction), and otherwise never mentions the LLC again except to 15 state that it “is a California LLC,” id. ¶ 1. Because the Complaint recites the exact same facts and 16 claims as in the previous action, concerning unauthorized access to Udo’s accounts and disclosure 17 of his personal information, whatever interest the LLC might be asserting here appears to be 18 identical to Udo’s for the purpose of privity—as is reinforced by the Complaint’s wholesale 19 conflation of Udo and the LLC through the use of a single defined term for both Plaintiffs. See 20 Robinson v. Volkswagenwerk AG, 56 F.3d 1268, 1275 (10th Cir. 1995) (holding that a “‘near alter 21 ego’ relationship would be sufficient to establish ‘privity’” for the purpose of res judicata). 22 That said, the Ninth Circuit has cautioned against sua sponte dismissal of claims brought 23 by new plaintiffs based on assumptions about privity when there is no factual record of either the 24 relationship between the new and old plaintiffs or the extent to which the new plaintiff’s interests 25 were adequately represented in the previous case. Headwaters, 399 F.3d at 1054–57. “[A]dequate 26 representation is a due process prerequisite to precluding a litigant from his day in court if he was 27 not a party to the earlier litigation,” and includes (among other considerations) whether the new 1 Accordingly, Plaintiffs are ORDERED TO SHOW CAUSE why their claims should not be 2 || dismissed based on res judicata. If Plaintiffs believe that Legal Task Help, LLC is not in privity 3 with Udo or was not adequately represented in the prior litigation before Judge White, they must 4 || include any relevant evidence to that effect with their response. 5 || IV. CONCLUSION 6 Plaintiffs must file a response to this Order no later than August 9, 2024 explaining why 7 || this case should not be dismissed for failure to serve process within the time allowed by Rule 8 || 4Gm), and based on the doctrine of res judicata. If Plaintiffs do not file a response by that deadline, 9 or their response fails to resolve the issues identified in this Order, this case will be reassigned to a 10 || United States district judge with a recommendation that the case be dismissed. 11 IT IS SO ORDERED. 12 Dated: July 26, 2024

S 14 en, | Aerie Is J. CISNEROS ited States Magistrate Judge 16

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